Religious Schools and the Freedom of the Church

In a pair of cases involving the religious-freedom rights of parochial schools, the Supreme Court on Wednesday re-affirmed a core First Amendment rule and a crucial aspect of church-state separation, properly understood: Public officials, regulators, and courts lack the authority to decide who should, or should not, perform important religious functions. Questions about religious institutions’ religious teachings, and teachers, belong to the “church” and not to the “state.”

In both casesOur Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel—former parochial-school teachers had filed employment-discrimination lawsuits after they were fired. Neither teacher was a full-time member of the clergy or an officially ordained minister but, as the seven-justice majority emphasized, “both performed vital religious duties” at schools whose mission includes “[e]ducating and forming students in the Catholic faith.” The Court rejected the cramped, mechanistic approach of the courts below, which had focused narrowly on the teachers’ title and training. No “rigid formula” is possible, or necessary, wrote Justice Samuel Alito for the majority. Instead, “[w]hen a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.” Both as a matter of the schools’ religious liberty and of sensible church-state relations, our constitutional law respects a meaningful sphere of religious autonomy.

The decision, in at least two ways, respects and protects pluralism. For one thing, the Court’s ruling acknowledges the reality that not every domain must or should be governed by the same authority. That is, while employment-discrimination laws play a vitally important role in a variety of contexts and sectors, their reach is and should be limited so that they do not interfere with the adjudication and administration of religious matters. It is—or, at least, it should be—a staple of liberal constitutionalism that powers and authorities are multiplied, divided, checked, and limited. The freedom of religious institutions to decide internal, religious matters for themselves should be seen as an important illustration of this constitutional principle.  

In addition, Justice Clarence Thomas, joined by Justice Neil Gorsuch, wrote separately to highlight the importance, especially for “minority faiths” or religious organizations that are “outside the ‘mainstream,’” of deferring to such organizations’ own understandings of religious ministry and leadership. For courts to second-guess these understandings would lead to the kind of church-state entanglements and intrusive official overreach that the First Amendment exists to prevent. And a rule that focused on teachers’ academic credentials, or on religious leaders’ familiar honorific titles, could well work to the disadvantage of religious communities whose practices are less familiar to American judges.

The rulings did not, contrary to the claims of some commentators and media outlets, carve out a new exception from employment laws or invent an alleged license to discriminate. The First Amendment doctrine that the Court reaffirmed and applied has been in place for decades and is rooted in debates that extend back for centuries. It was unanimously confirmed by the justices just eight years ago in the Hosanna-Tabor case. Wednesday’s rulings corrected a lower-court error and vindicated longstanding, fundamental principles. They did not innovate or break new ground. And, importantly, they did not divide the justices sharply along partisan or ideological lines. Justices Elena Kagan and Stephen Breyer joined Justice Alito’s opinion. And, although Justices Ruth Bader Ginsburg and Sonya Sotomayor dissented, endorsing the lower court decisions’ more narrow approach, they did not dispute “that a religious entity’s ability to choose its faith leaders . . . should be free from government interference[.]”

The limits on secular authority are determined not merely by an employee’s title but also, and more importantly, by their role in carrying out the organization’s religious mission.

As the Court had in Hosanna-Tabor, Justice Alito’s opinion emphasized the deeply rooted concern in our law, history, and traditions of “the general principle of church autonomy” and of religious institutions’ “independence in matters of faith and governance and in closely linked matters of internal government.” Along with other scholars, I have explored the connections between the importance of this “general principle” in American constitutional law and some of the great church-state controversies of the past and the long-running (and still continuing) struggle for the “freedom of the church.” As the Court observed, and in keeping with this history, the First Amendment has long been understood as requiring secular authorities to avoid attempting or purporting to “resolv[e] underlying controversies over religious doctrines.” Whatever disagreements might persist about the content of the Constitution’s no-establishment rule (regarding prayers at town-hall meetings or war-memorial crosses, for example), it seems clear that the paradigmatic feature of the kind of religious “establishment” that the First Amendment was designed to rule out is political meddling in the selection of religious ministers, the formulation of religious doctrines, and the teaching of religious truths.

Now, as Justice Thomas noted, the term “ministerial exception is something of a misnomer,” with the potential to distract decision-makers, as it apparently did in the lower courts here. The principle that this doctrine reflects does not apply only to ordained clergy or full-time “ministers.” After all, as Justice Alito stated, “many religious traditions do not use the title ‘minister.’” Instead, the inquiry is a functional one. The limits on secular authority are determined not merely by an employee’s title but also, and more importantly, by his role in carrying out the organization’s religious mission. The issue is not what they are called, but what they do. And because “the religious education and formation of students is the very reason for the existence of most private religious schools, . . . the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission.”

Going forward, there will be cases that are more difficult than these two. Some school employees’ duties might be obviously unconnected to the schools’ religious missions; the activities of some organizations will be much more distant from religious formation and practice. Still, Wednesday’s ruling was a significant and welcome re-affirmation of a principle that, we should hope, is firmly entrenched in American constitutional law.

A common criticism of, or concern about, the “ministerial exception” doctrine—and, again, we need a new name for this rule—is that, in some cases, it operates to prevent employees who have been treated badly from seeking a legal remedy and insulates from legal oversight a religious employer’s unjust decision. This is true. It is also true, of course, that our Constitution’s rules of criminal procedure sometimes result in guilty offenders not being convicted and that our free-speech guarantee protects expression that is nasty, offensive, foolish, or worse. The premise of the church-autonomy principle is not that religious organizations do not sometimes behave badly. Certainly, they do. And they should be criticized, from within and from without, when they do. But not all wrongs are, or should be, redressable through civil litigation or by secular political power.

One reason why, in some quarters, rulings like Our Lady of Guadalupe School and St. James School come in for criticism is that they can be seen as insulating or excusing, if not justifying, “discrimination.” And, in a culture with our professed egalitarian commitments, the word—indeed, the very idea of—discrimination is, at least at first, jarring and off-putting. It should be remembered, though, that not all “discrimination” is unjust, invidious, or wrongful. All organizations, and all of us, draw distinctions and make decisions on the basis of goal- or mission-oriented criteria, and it is not necessarily wrong to do so.

Others might agree that the religious-freedom principle at issue in these cases matters and should be enforced, but only if the religious organization can prove that the employee in question is undermining or opposing the organization’s religious mission. However, the Court’s opinion wisely reminds us that this is not an inquiry that secular officials should undertake. If a religious institution says that an employee is not carrying out well her religious role, how can a civil official go about deciding that she, in fact, is?

At the end of her dissent, Justice Sotomayor expressed concern about the implications of the decision “in a pluralistic society like ours.” However, it is precisely because ours is a “pluralistic society” that the Court’s 7-2 determination is so important. In a meaningfully pluralistic society, not every organization or institution will act the same way, or be structured in the same way, or have the same goals, or be governed by the same rules. A society without mission-oriented Catholic schools is a less pluralistic society than one with them. A political authority that imposes the same employment rules on every employer, regardless of sector or context or history or aims, is not diverse, but homogenous and monochrome. And, in any event, foundational commitments to limited government and religious liberty require that decisions about religious leaders and teachers be left to religious decisionmakers.  

Reader Discussion

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on July 10, 2020 at 07:45:35 am

Garnett is a famous name, though perhaps not so much for touting a relaxation of fundamental separation under the guise of ministerial exception, something reinforcing an emerging Erastianism. Better, would have been a clear decision establishing not merely the exercise without, in any way, leaving the door open to Establishment, but the clear right, even for secular organizations, to practice their private business, noting the privilege of the religion, not the right, and its appeal and affect, not as a public utility, to the public at large, much less access, but as an organization challenging the public through its evangelization and sanctification to and of all those who are 'called' to believe. Another missed opportunity to set the record straight by extolling the significance of religion in our polity through the practice of specific dogma, from Spiritual mindedness to material prosperity, and its protection by limiting it to those who conform to its specific religious requirements. Church and state are kept separate here, not for the unity of the state, much less as some even tenuous instrument, but for the purity of the Church in its singular allegiance.

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on July 10, 2020 at 10:24:01 am

GDP, with all due respect, Professor Garnett has addressed your concerns elsewhere although he did not go in to specific detail in this particular essay about the inherent Right and Mission, “which The Lord Has Entrusted to The Catholic Church, to “Guard The Deposit Of Faith, the entire Body Of Catholic Revelation that Christ Has Revealed To His Church, Through Sacred Tradition, Sacred Scripture and The Teaching Of The Magisterium, grounded in Sacred Tradition and Sacred Scripture.

Here is some additional information you may wish to contemplate where Professor Garnett reflects on The Freedom of The Church to guard and reveal The Deposit Of Faith as Christ Has Revealed To His Church, with the understanding that all persons have the inherent Right to come to know, Love, and serve The True God in this world, so that they can, hopefully, be with God, The Ordered Communion Of Perfect Complementary Love, The Most Holy And Undivided Blessed Trinity, and their beloved, forever in Heaven.





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on July 10, 2020 at 09:38:03 am

HaHa the feckless Ninth! The most reversed Circuit in American history strikes out again in Morrissey-Berru, by confusing the four factors to consider, which precedent clearly called for, with four requirements of a pass or fail, four part test, which precedent abjured. In most of its cases, so as to avoid the difficulty of substantive analysis, the Ninth Circuit, our most constitutionally-challenged, ideologically-driven court, looks for the ease of checking-off boxes.

The Ninth Circuit is the Joe Biden of Article III courts. Would that we could check-off the boxes of its hits and misses and dismiss its judges who fail the test.

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on July 10, 2020 at 14:34:08 pm

I appreciate Professor Garnett’s acceptance: “Along with other scholars, I have explored the . . . struggle for the ‘freedom of the church.’” Fewer “the”s might expand his idea beyond the-church-freedom to citizens and their struggle for integrity to the actual-reality for life rather than death.
Churches (including the church) are constrained by physics and its progeny. For example, no soul has ever reported the afterdeath. Also, same-sex partners cannot practice monogamy for life AND share spousal exclusive-appreciation with children; that is, they cannot conceive in monogamy. Also, since not only conceptions but human ova and spermatozoon each deserve their unique, human dignity and equity, churches have no grounds for arrogance against physics, ova, and spermatozoon. Likewise, justices who approve abuse of physics, ova, and spermatozoon are arrogant and additionally deserve accountability to civic-citizens or to We the People of the United States.

At question is their allegiance to U.S. commitment-to and trust-in development of statutory justice. Only by their behaviors can we form an opinion as to whether or not each of the nine justices possess a personal interpretation of the preamble to the U.S. Constitution (the U.S. Preamble). I guess not, due to their desires to preserve Anglo-American tradition, Judeo-Catholic tradition, or other soul/none doctrine that the agreement to be a U.S. citizen does not authorize. Many citizens are renters of the U.S. proposition with allegiance elsewhere.

The Greeks, 2,400 years ago, suggested, in my view: Citizens may develop human equity under statutory justice---a worthy goal. The US Supreme Court building is adorned with “Equal Justice Under Law” which intentionally or not implies that unjust law is alright if applied equally. “Equity Under Justice” would have helped the architect accommodate perhaps better thought in the chosen space. There’s still time for reform.

The Great Seal (see https://en.wikipedia.org/wiki/Great_Seal_of_the_United_States), dating from 1782, was authorized by the Confederacy of 13 states, who were British colonies before 1774. It included the motto “E Pluribus Unum,” out of many one, the Eye of Providence (symbolizing the Holy Trinity’s omniscience), Annuit cœptis---Providence’s favor, and Novus ordo seclorum---new order of the ages. The new order was proposed in 1787 and 9 states ratified in 1788. The 4 dissident states had their reasons.

England agreed after negotiating with France that 13 named states were free and independent. The 13 states ratified the 1783 Treaty of Paris in 1784. However, after trying, some states opined they could not survive as a confederation. Twelve states sent delegates to the 1787 Philadelphia convention that concluded with the conversion to a Union of states under public discipline of by and for citizens in their states and their nation. The public discipline has not, heretofore, caught on.

The U.S. Preamble proposes for maintenance the articles of law and of institutions that living citizens limit to civic, civil, and legal powers. The proposition I perceive for personal development (as of July 10, 2020) is: A U. S. civic-citizen practices and develops 5 public disciplines (integrity, justice, peace, strength, and prosperity) “in order to” encourage responsible human independence to living residents. Tacitly, the future integrity that posterity’s posterity will achieve is the providential standard. Also, the U.S. Preamble tacitly accepts spirituality as a private rather than civic trust and commitment. That is, whatever-God-is assigned the 5 public disciplines and responsible independence to the individual. I don’t know another citizen with these opinions, and readers may notice that I no longer express my interpretation in the plural. Too many people do not appreciate the preamble as the termination of British psychological hostage-taking on U.S. persons.

The original, abstract preamble is proffered, and each citizen may choose to consider it in order to comprehend civic, civil, and legal citizenship or not. Citizens who choose not to accept it may live within the 5 public disciplines and purpose (in their opinions or not) without constraint as long as they neither initiate nor tolerate harm to or from any person or their responsible institution.

Religions purport to save souls or equivalent. They have no stake beyond safety and security in developing civic, civil, and legal justice among living citizens.

As soon as 2/3 of living citizens value mutual, comprehensive safety and security for living as prerequisite to pursuing a favorable afterdeath or other doctrine, the motto E Pluribus Unum will apply to churches and their God or philosophy. Then, providence may be viewed as the happiness posterity’s posterity will achieve. For example, the living “ourselves” will not leave $26 trillion debt to posterity.

Then, love can be love, appreciation can be appreciation, and civic citizens can be humble to whatever-God-is.

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Phillip Beaver
on July 12, 2020 at 23:51:30 pm

This case was completely about religious organizations wanting to exempt themselves from labor laws. The one teacher claimed she was fired for having cancer and the other for age discrimination. The defendants never claimed that having cancer or being old was against their faith. The ministerial exemption should apply to religious issues only, and the religious organizations should have to follow the rest of the labor laws just like everyone else. SCOTUS got this one wrong.

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on July 10, 2020 at 18:05:19 pm

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on July 10, 2020 at 20:35:59 pm

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on July 11, 2020 at 00:47:41 am

[…] 18. Richard W. Garnett: Religious Schools and the Freedom of the Church […]

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