Our Lady of Guadalupe v. Morrisey-Berru (consolidated with St. James School v. Biel)

Chief Justice Roberts to Respondents (53:07): Mr. Fisher, I -- I think it's fair to describe your position compared to your friend's on the other side as more formalistic in using that word in a non-pejorative sense. You're -- you're much more focused on titles, I would think, than whether or not they're performing religious functions. And my concern is -- it was one raised by the concurring opinion in Hosanna-Tabor, is that different faiths put different stock in -- in titles. In some that are more hierarchal, they're important. In others, they're not. And the second concern is that that's pretty manipulable. You know, if you want broad protection, you just start handing out titles to everybody, and then they would be covered. I'd like your reaction to that.

Lawrence Sager: Thank you, Mr. Chief Justice. With respect, I think the difference between the petitioner schools and the respondent teachers runs deeper than merely an issue of titles or functions. The ministerial exception and the extraordinary, blanket immunity from responsibility that it confers on religious employers reflects this Court’s judgment that the state should keep itself completely out of questions of how groups choose their religious leaders. By focusing on a particular employee’s religious function, rather than on the role or status of religious leadership, the employer schools invite the conclusion that since prayer is clearly an important religious function, any employee whose job includes some prayer falls within the scope of the ministerial exemption. This and other conclusions would give a disastrously broad reading to the ministerial exception. The question of whether an employee is a religious leader involves a complex, all-things-considered, judgment, in which questions of title, education, responsibility and regard all play a role. Hosanna-Tabor requires this Court to decide whether an employee who has endured treatment inconsistent with our laws protecting workplace equity is a religious leader and accordingly vulnerable to such treatment, as a matter of constitutional law. This is a question of role or status rather than of function. 

It is difficult to imagine a religion in which there are no leaders. If there were such a religion, it would be fully entitled to the protections of the First Amendment, of course. But the ministerial exemption simply would not apply.

Justice Thomas to Respondents (55:22): Yes. Thank you, Chief Justice. Mr. Fisher, just first a just general question. Would exactly what these teachers were doing be a violation if they did it in a public school, be a violation of the Establishment Clause if they did it in a public school?

Lawrence Sager: Directing students in prayer or worship or teaching religion as truth certainly would be unconstitutional in a public school, Justice Thomas; and likewise, the Constitution clearly forbids state interference with or control over devotional exercises in a religious school. But this case is not about devotional autonomy in religious schools. That autonomy already exists as a matter of firmly established First Amendment principles. This case is about the extraordinary immunity that religious institutions enjoy—an immunity which permits them to disregard, with respect to their leaders, settled laws requiring employment equity. The ministerial exception permits a religious institution to fire a leader who has contracted cancer and whose medical leave is expensive or inconvenient; it permits a religious institution to fire a leader because—as Justice Ginsburg hypothesized in her question to Ms. Ratner—she has pursued or communicated a claim of sexual abuse that embarrasses the school leadership. These disquieting outcomes are justified by the special need to keep the state completely out of the process by which religious groups choose their leaders. The petitioners, however, would have this Court enlarge the ministerial exception in a way that would make a substantial proportion of a religious school’s employees vulnerable to mistreatment of this sort. Devotional autonomy neither requires nor justifies the expansive immunity from employment law that the petitioners’ version of the ministerial exception would confer.

This Court cannot sidestep or simplify the inquiry into who counts as a religious leader, and certainly should not decide that any teacher or other employee who engages in devotional exercises or religious instruction falls into the category of religious leadership to which the ministerial exemption applies. If your honors did so, the extraordinary immunity of the ministerial exception would become the rule for religious institutions with regard to employment responsibilities, a rule that would deny the rudiments of employment justice to hundreds of thousands of employees. That would be deeply unfortunate, not just for the employees of religious institutions who are the victims of employer misbehavior, but, ultimately, for the religious institutions themselves.