Editorial: Why teachers of religion are not entitled to anti-discrimination protections

The Supreme Court has agreed to hear two cases from California in which teachers who lost their jobs at Catholic schools sued the schools under federal anti-discrimination laws. At first glance, the cases might seem to pose a novel and difficult question: whether freedom of religion guaranteed by the 1^st Amendment can override laws against bias in the workplace.

But appearances are deceiving. The justices already addressed that issue in 2012 when they unanimously held that a religious school may not be sued over personnel decisions involving employees who are expected to “personify its beliefs� — even if those workers aren’t being employed as priests or pastors. So teachers of religion or other employees involved in religious instruction, for instance, can be fired and will not have recourse to anti-discrimination laws. On the other hand, employees whose duties are entirely secular would be able to challenge their termination.

The issue raised by these new cases is how lower courts should interpret that decision.

The answer, in our view, is “generously,� even though we acknowledge that it could result in unjust outcomes. A woman could be denied a job as a Catholic school teacher — or a disabled Hebrew school teacher could be fired — without recourse to the anti-discrimination protections they would receive in other settings. But as all nine Supreme Court justices recognized in 2012, that’s the price that we pay if we want to maintain a separation between religious institutions and government.

In this new case, however, the court also must reiterate clearly that employees of a church school whose duties are totally secular can go to court to allege discrimination on the basis of race, age, gender or disability.

The 2012 decision involved a teacher dismissed by a Lutheran school who challenged her termination under the Americans With Disabilities Act. She said she was fired because she had suffered from narcolepsy. Writing for the court, Chief Justice John G. Roberts Jr. said religious organizations, including schools, enjoy a “ministerial exception� to anti-discrimination laws that is grounded in the 1^st Amendment’s protection of freedom of religion.

“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision,� Roberts wrote. “Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.�

Providing religious organizations with such protection inevitably will mean that some victims of discrimination won’t get their day in court. But Roberts — joined by liberal and conservative colleagues alike — said that the ministerial exception was justified because the 1^st Amendment “gives special solicitude to the rights of religious organizations.�

The Lutheran teacher in the 2012 case had been categorized by her denomination as a “called� teacher — one with a special commission to pass along the faith — and she had received theological training. Roberts cited those details in his opinion, but also said that the court wasn’t adopting a “rigid formula for deciding when an employee qualifies as a minister.�

The court’s failure to announce a definitive standard meant that lower courts have had to fill in the blanks. Several have construed the �ministerial exception� broadly. But in the two cases involving teachers in California, the 9^th U.S. Circuit Court of Appeals took a narrower view, ruling that lawsuits could go forward.

In one of the cases, Kristen Biel, who had taught at St. James Catholic School in Torrance, challenged her dismissal under the Americans With Disabilities Act, alleging that she was fired because she had breast cancer and would need to miss work to receive chemotherapy. In the other case, Agnes Morrissey-Berru is alleging age discrimination in challenging her dismissal by Our Lady of Guadalupe School in Hermosa Beach.

In both cases the 9^th Circuit ruled that the teachers weren’t covered by the ministerial exception, even though they had religious duties. Biel taught a religion class and was evaluated on whether instruction in her classroom was infused with “Catholic values.� Morrissey-Berru had what the 9^th Circuit called “significant religious responsibilities� including leading her students in daily prayer and planning arrangements for a monthly Mass.

The 9^th Circuit panels focused on the fact that the plaintiffs had secular titles (“teacher� and “Grade 5 teacher�) and lacked religious credentials or training. But that is too narrow a reading of the “ministerial exception.� Both teachers were charged by their schools with taking part in a religious as well as an educational mission. They were thus “ministers� as conceived by the Supreme Court.

That is how the court should rule when it takes up these cases, clearing up any ambiguity in its 2012 decision. The court also should make it clear that courts won’t second-guess judgments by religious schools about how important a teacher’s religious duties are.

At the same time, the court needs to insist that the ministerial exception doesn’t prohibit anti-discrimination lawsuits by employees of religious schools who aren’t responsible for imparting the faith — teachers who engage in no religious duties whatsoever as well as such employees as janitors, secretaries and food-service workers. The ministerial exception is just that: an exception. It shouldn’t be expanded beyond its intended purpose of protecting freedom of religion.