The Supreme Court has ruled that Catholics do not have to be Protestants. In Our Lady of Guadalupe v. Morrissey Beru, a decision announced July 8, the high court ruled that the “ministerial exception” applied to teachers fired from two Catholics schools in the Los Angeles Diocese. For background on the cases please see our earlier coverage, “Justices Will Hear Cases About L.A. Catholic Schools,” Summer 2020 and “Justices Hear Arguments in L.A. Catholic Schools Case.”
Writing for a 7-2 majority (the five typically more conservative justices plus Breyer and Kagan), Justice Alito held that “what matters, at bottom, is what an employee does,” not what the employee is labeled. Because “minister” is a label most commonly used in Protestant denominations and rarely if at all among other faiths, the court held that the 9th Circuit’s decisions against the schools created a “rigid test” that “invested undue significance” in the teachers’ lack of clerical titles. The obvious implication of the decision is that under the Free Exercise Clause of the First Amendment, the court will give great deference to religious organizations in their determination about who counts as someone entrusted with imparting their faith to others.
The frontier of First Amendment law as it relates to religious schools will now be the relationship between this ruling and two other landmark decisions from this term, Espinoza v. Montana Department of Revenue holding that states cannot discriminate based on religion in the distribution of generally available benefits and Bostock v. Clayton County holding that discrimination based on sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964. With these decisions, the court seems to be groping, with Chief Justice Roberts and perhaps Justice Gorsuch in the lead, toward what it thinks is a resolution of America’s culture wars that combines an expansive definition of equality with strong protections for freedom of religion. Today, however, we’re left with more questions than answers.
Maryland, for instance, forbids any public money from going to institutions that discriminate based on sexual orientation. That led the state to exclude a religious school from participating in a voucher program, prompting the school, Bethel Christian Academy, to sue. Today’s decision, along with Espinoza, seems to cast doubt on the lawfulness of Maryland’s decision. But neither decision addresses whether states can condition the receipt of public funds on following non-discrimination laws. Maryland will certainly appeal to the court’s interpretation of sex in Bostock to justify its decision.
We will also certainly see litigation about employees more removed from direct instruction. What if a custodian or cafeteria worker at a religious school changes their gender identification in conflict with the doctrinally grounded employment policies of the school? Today’s decision emphasizes the importance of religious teachers but it does not reach issues like this one. A religious school might say that its faith informs everything that it does and that all employees are expected to model their faith in front of students. Certainly Justice Gorsuch, the author of Bostock, would be inclined to favor the school, because he joined a concurrence today by Justice Thomas arguing the courts should give great deference to religious institutions “because what qualifies as ‘ministerial’ is an inherently theological question.”
Perhaps the most uncertain and combustible conflicts will arise where these decisions intersect with Title IX of the Education Amendments of 1972. A religious school might require all student athletes to participate on teams based on their biological sex. But if this school participates in a state athletic organization that applies Bostock’s definition of sex discrimination to Title IX, the school could be excluded. That exclusion could, in turn, be construed as a violation of violation of Espinoza. Or what if the state athletic organization allows a religious schools to follow its religiously grounded understanding of sex but mandates that restroom facilities or locker rooms at all state authorized events be open based on an individual’s personal gender identification?
In short, before we approach anything that looks like a stable peace, we can expect much more conflict and litigation.
Joshua Dunn is professor of political science and director of the Center for the Study of Government and the Individual at the University of Colorado Colorado Springs.