by Michael Peabody  |  8 July 2020  |

In a 7-2 ruling announced this morning, the Supreme Court found that religious institutions have a First Amendment right to make employment decisions “free from state interference.”

Two Teachers in Los Angeles Catholic Schools Sue, Claiming Age and Disability Discrimination

Two teachers at separate Catholic schools in the Archdiocese of Los Angeles sued after they were fired. Agnes Morressey-Berru, who taught at Our Lady of Guadalupe School, had claimed that she was demoted, and her contract not renewed because the school intended to replace her with a younger teacher. In a secular situation, this may have given rise to an age discrimination lawsuit, the school successfully got the case dismissed after invoking the “ministerial exception.” The ministerial exception is a legal doctrine in the United States intended to protect the freedom of religion by exempting religious institutions from anti-discrimination laws in hiring employees and prevents ministers from filing civil rights lawsuits against religious employers. As a legal doctrine, it first appears in the Supreme Court decision in Hosanna-Tabor v. EEOC in 2012, preventing the government from intervening in “ecclesiastical,” or church, employment decisions involving “ministers.”

Kristen Biel, who taught at St. James School, was terminated after requesting a leave of absence to obtain breast cancer treatment. The school also got a dismissal of Biel’s case on summary judgment after claiming the “ministerial exception.”

Were They Ministers?

On appeal, the Ninth Circuit overturned both summary judgments, allowing the cases to go forward. The Ninth Circuit held that the teachers did not meet the requirements of the “ministerial exception” because they did not have the formal training, religious background, or hold themselves out as religious leaders. The teachers appealed the decision to the Supreme Court.

The Supreme Court decision, written by Justice Alito, follows the “ministerial exception” rationale the Court first applied in the 2012 decision in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, which involved similar circumstances.

The Supreme Court has traditionally been reluctant to rule on whether a self-described employee of a religious organization is “ministerial” or not. The Court applied factors in Hosanna-Tabor, including whether the religious education of students and training them to live within the faith are core aspects of what the teachers in religious schools do, independent of their title and educational background.

The Dissent

Justice Sotomayor wrote a dissent, joined by Justice Ginsburg. According to the dissent, the teachers taught secular subjects, had no particular religious training, and did not even need to be Catholic to teach at these schools. Therefore, the ministerial exception did not shield the employers from disability and age-discrimination claims. From her perspective, the ministerial exception, as promoted by the majority, brought the analysis down to one point: “whether a church thinks its employees play an important religious role.”

She also said that Employment Division v. Smith—Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990)—is a United States Supreme Court case that held that the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual, (1990) should apply and that religious entities should abide by generally applicable laws. Religious exceptions to these rules should be narrow and not apply when the discrimination is “wholly unrelated to the employer’s religious beliefs or practices.”

The dissent noted that “Hosanna-Tabor declined to adopt a ‘rigid formula for deciding when an employee qualifies as a minister,'” and instead applied a set of “circumstances” to determine whether the employee was a “minister,” involving whether they were categorized as ministers, performed religious functions, or applied the title to themselves.

In Hosanna-Tabor, the teacher, Cheryl Perich, had been held out as a “called minister.” This approach, Justice Sotomayor argues, “ensured that a church could not categorically disregard generally applicable anti-discrimination laws for nonreligious reasons.”

In contrast, Justice Thomas wrote an opinion agreeing with the majority, but also adding that the Religion Clauses, in his view, require civil courts to defer to religious organizations’ good-faith claims that an employee’s position is “ministerial,” and the inquiry should end there. After all, churches have different beliefs about who is a minister and who is not a minister.


The decision in Our Lady of Guadalupe School v. Morrissey-Berru (decided July 8, 2020) is hardly surprising. Even though it goes beyond Hosanna-Tabor, the court does not want to delve into the weeds to the point of determining whether somebody is “ministerial” or not, and Justice Thomas’ concurrence points out the more practical aspects of why the court reached this decision. If a religious institution says that an employee is “ministerial,” as a shield against a discrimination claim, it is sufficient. To establish the ministerial aspects, schools may ask teachers or other employees to self-identify as “ministers” and put teachers on a rotating schedule for performing or participating in religious aspects of the school life.

The court reached the correct decision in light of the First Amendment, which keeps church and state separate when it comes to how churches carry out their religious mission. Still, those who choose to work in religious institutions should recognize that their sacrifice goes beyond lower wages to include a waiver of any rights to sue for discrimination. In these cases, the rationale for the termination had little to do with any “religious rationale,” and some may say the schools recognized that they could avoid scrutiny because of the “ministerial exception.”

The ethical and moral onus is now on religious institutions as they decide whether to fire “ministerial” employees for reasons that are illegal in the secular world, such as age or the need for cancer treatment. Institutions that engage in this kind of discriminatory tactic will still need to answer to a Higher Source that will not be impressed with their ability to obtain summary judgment. The way for religious institutions to “win” these cases is to avoid them in the first place by taking the lead in treating employees with the highest degree of care and concern.

A Personal Note

A lot of church religious liberty people are positively giddy about this decision, for understandable reasons: we don’t want the court telling churches what to do to their employees. But it basically upholds the right of churches to be terrible to employees with impunity, such as firing a teacher because she needs time to have breast cancer treatment. Someday God will pronounce judgment about what was done in His name to these folks.

Churches need to hold themselves way above Title VII, and become known for being better to their employees than the secular alternatives. Unfortunately, it is human nature to circle the drain, and most of the time churches are partakers of human nature more than they are of the Divine nature when it comes such matters.

Michael Peabody is an attorney in Los Angeles, CA who serves as the President of Founders’ First Freedom, a non-profit organization dedicated to promoting liberty of conscience. He blogs at

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