Justice Samuel Alito let religious employers skirt the civil rights laws that apply to the rest of us.<\/b>
\nThe Supreme Court stripped civil rights protections from hundreds of thousands of American workers on Wednesday in a sweeping decision that exempts countless religious employers from nondiscrimination statutes. Justice Samuel Alito\u2019s 7\u20132 majority opinion carved a huge loophole in the employment laws in all 50 states and the federal government, allowing religious employers to discriminate against any worker they deem \u201cministerial.\u201d
Wednesday\u2019s ruling in Our Lady of Guadalupe School v. Morrissey-Berru involves a doctrine called the ministerial exception. This principle, which courts derived from the First Amendment, bars the government from telling a religious institution whom to choose as its faith leaders. Respecting that principle sometimes requires the courts to butt out of employment disputes, even when a worker claims unlawful discrimination.
The basic premise makes sense; no one seriously argues that the government should be able to tell a church it can\u2019t fire its priest. But religious institutions employ a lot of people, and not all of them play a key role in the overarching spiritual mission. Consider, for instance, the two plaintiffs here. Kristen Biel was a fifth grade teacher at a Catholic school that classified her as a lay employee. It did not require these employees to have religious training, and she had none. Biel primarily taught secular subjects; her chief religious duty was joining the class in twice-daily prayer. Agnes Morrissey-Berru was also a fifth grade teacher at a different Catholic school. Like Biel, she was considered a lay employee, taught secular subjects, and had no religious training. She also led her students in a brief prayer once a day.
After Biel was diagnosed with breast cancer, the school terminated her contract. She sued for disability discrimination. Morrissey-Berru\u2019s school terminated her contract, as well\u2014because, she asserted in an age discrimination lawsuit, it considered her too old. Neither school provided a religious reason for its decision. Yet when each woman sued, both schools raised the ministerial exception, suddenly announcing that, in fact, Biel and Morrissey-Berru amounted to \u201cministers\u201d and thus had no right to sue for discrimination.
Alito accepted the schools\u2019 claims at face value and in the process established a new test to determine who fits into the ministerial exception. (Only Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented.) The exception, Alito wrote, applied to \u201ccertain important positions with churches and other religious institutions.\u201d Courts determine whether a position is \u201cimportant\u201d by asking if it requires the performance of \u201cvital religious duties.\u201d Religious duties are \u201cvital\u201d if they are key to \u201ccarrying out the mission of the church.\u201d And if the church believes an employee fits this role, courts must defer to its determination. In these two teachers\u2019 cases, Alito embraced the schools\u2019 declaration that their minimal religious duties rendered them \u201cministers\u201d who qualified for the exception.
The upshot of this new constitutional rule is that religious employers now have carte blanche to discriminate against workers. After all, if anyone sues, their employer can simply deem them \u201cministerial\u201d under Alito\u2019s deferential test, thwarting litigation. (Indeed, that appears to be exactly what happened to Biel and Morrissey-Berru.) As Sotomayor pointed out in her scathing dissent, Alito\u2019s \u201claissez-faire analysis appears to allow that employer to make employment decisions because of a person\u2019s skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion.\u201d
The court, Sotomayor continued, defeated the very purpose of civil rights laws by allowing employers \u201cto decide for themselves whether discrimination is actionable.\u201d In short, it \u201ctraded legal analysis for a rubber stamp.\u201d Alito\u2019s opinion, she concluded, \u201cabsolves religious institutions of any animus completely irrelevant to their religious beliefs or practices and all but forbids courts to inquire further about whether the employee is in fact a leader of the religion. This sweeping result is profoundly unfair.\u201d
After Wednesday\u2019s decision, every competent lawyer counseling a religious institution will advise their client to foist some minimal \u201creligious duties\u201d on lay employees to shield themselves from lawsuits. The powerful law firm Alliance Defending Freedom has already mastered this trick. In 2015, its lawyers advised religious employers to dump some trivial religious responsibilities on receptionists\u2014like directing them to \u201cprovide religious resources\u201d\u2014so they would qualify as \u201cministers\u201d and lose legal protections. This tactic will almost certainly become commonplace in the wake of Morrissey-Berru.
There are about 150,000 employees in the country\u2019s Catholic schools. Morrissey-Berru will yank a large number of them outside state and federal protections against invidious discrimination. But the fallout won\u2019t end there. As Sotomayor noted, the decision also affects \u201cthe rights of countless coaches, camp counselors, nurses, social-service workers, in-house lawyers, media-relations personnel, and many others who work for religious institutions.\u201d From now on, these employees \u201ccould be subject to discrimination for reasons completely irrelevant to their employers\u2019 religious tenets.\u201d
Morrissey-Berru comes on the heels of Espinoza v. Montana, a 5\u20134 decision that will force a majority of states to fund parochial schools. Taken together, these two decisions mark a startling expansion of constitutional \u201creligious liberty.\u201d Most states must now provide taxpayer money to parochial schools\u2014yet they are handcuffed from enforcing their own civil rights laws against the institutions they fund. The Supreme Court has not only bulldozed the wall separating church and state; it has also handed religious institutions a trump card they can use when the state asks them to follow the rules that apply to the rest of us. Religious liberty is a fundamental American value. But in the hands of this court, it has become a weapon that employers can use to make the rest of us less free.
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