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Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel

Does the First Amendment protect the right of a religious K-12 school to decide who does, and does not, teach its religious beliefs and values to its students?  The United States Supreme Court will hear oral argument on May 11 in order to answer that question. The public may listen at 11 a.m. Eastern on May 11, 2020, on C-span.

Christian Legal Society’s Center for Law and Religious Freedom filed an amicus brief, asking the Supreme Court to decide the issue. Once the Court granted review, the Center filed a second amicus brief that urged the Court to protect religious schools’ right to decide who will transmit their religious values to the next generation. The Center urged that when a teacher brings a lawsuit against a religious school, a court should focus first and foremost on whether the teacher’s job includes religious functions, rather than fixating on credentials, titles, or training, which could vary widely among different religions and denominations. If the teacher’s job includes religious functions, then a court must defer to the religious school’s decision.

Who Decides Who Teaches at a Religious School: The School or the Government?

Our Lady of Guadalupe School and St. James School are Catholic schools in California and entrusted by parents to instruct their children in the Catholic faith. To carry out their mission, the schools need the freedom to determine the best messenger for their religious message. This is particularly true if the teacher leads students in religious exercises and prayers.

In 2012, the Supreme Court first addressed this issue in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC and unanimously confirmed the widely accepted understanding that the First Amendment prevents courts from reviewing churches’ and religious schools’ employment decisions regarding their choice of “ministers.” This concept is called the “ministerial exception,” but it does not cover only employees whose job title is “minister.” Instead it extends to other employees engaged in teaching the faith. Specifically, in Hosanna-Tabor, the Court held that a fourth-grade teacher in a Lutheran school was a “minister” after considering her religious functions, credentials, title, and training. The Supreme Court cautioned that courts should not apply a “rigid formula” when determining whether an employee qualifies for the ministerial exemption.

Since the Hosanna- Tabor decision, the lower courts have generally applied a broad definition of “minister” in cases involving teachers at religious schools. But in Biel v. St. James School and Morrissey-Berru v. Our Lady of Guadalupe School, the Ninth Circuit determined that teachers who had religious functions, including leading their class in prayer, were not subject to the ministerial exception because they lacked the other factors that the Court had considered in Hosanna-Tabor: credentials, titles, and training. Accordingly, the Ninth Circuit held that teachers who “taught religion in the classroom” and “incorporated religious themes and symbols into  … [the] curriculum,” or who “led [their] students in daily prayer” and “committed to incorporate Catholic values and teachings into [the] curriculum” were not “ministers” for purposes of the ministerial exception. As a result, the courts could review the religious schools’ employment decisions. In other words, the government, not the schools, would have the final say as to who would transmit their faith to their students.

Professor Tom Berg and the Religious Liberty Appellate Clinic at St. Thomas School of Law (Minneapolis) wrote an excellent amicus brief that the Center filed, explaining that a teacher’s religious job functions should be the primary consideration as to whether the teacher is a “minister.” Otherwise the courts will become embroiled in religious questions in violation of the First Amendment. Indeed, state-required credentials for ministers was one of the chief evils the First Amendment was adopted to address. 

What principle is the Center fighting for? Religious schools should be free from government interference when determining who should teach religious beliefs and values to their students.