chelsea Langston Bombino
Editor's Note: This is the first article in a recurring Religion Unplugged column from Sacred Sector Director Chelsea Langston Bombino that will explore religious freedom in the United States.
On July 8, the Supreme Court ruled in a 7-2 decision that the government cannot interfere with religious institutions’ ability to select teachers providing devotional religious instruction, meaning religious schools can ensure they hire teachers who align with their spiritual commitments.
This decision upheld the freedom of two religious schools (Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel) to select their religious teachers without government interference. Both of the schools were represented by the Becket Fund for Religious Liberty, after they were consolidated by the Court in late 2019. Together, the Court’s opinion on these cases is referred to as Our Lady of Guadalupe.
Becket argued in these cases that faith-based organizations should be completely free to choose their ministers and spiritual instructors, those individuals tasked with both personally embodying and transmitting spiritual truths to others, without the government stepping in.
“Today is a huge win for religious schools of all faith traditions,” said Eric Rassbach, vice president and senior counsel at Becket, who argued the case to the Court. “The last thing government officials should do is decide who is authorized to teach Catholicism to Catholics or Judaism to Jews. We are glad the Court has resoundingly reaffirmed that churches and synagogues, not government, control who teaches kids about God.”
Writing for the Court, Justice Alito opened by explaining that these cases involved the judicially created “ministerial exception” - which bars the government from imposing restrictions on the selection of ministerial workers in religious institutions. The concept of a ministerial exception was upheld unanimously by the Supreme Court in 2012 in its decision, Hosanna Tabor Evangelical Lutheran Church and School v. EEOC. There, the Court said that the ability of a religious institution to choose its religious leaders and teachers is at the center of the freedom of religion that is protected by the 1st Amendment.
The Court did not define exactly who could be considered a minister, but notably, it, said that the math teacher with religious duties at the Hosanna Tabor school was such a minister. As Becket notes: “Hosanna Tabor recognizes that many denominations rely on non-ordained employees to pass the faith to the next generation and rejects formalistic requirements—like having a religious-sounding title—which create obstacles to the vital protections afforded by the First Amendment.” The Court in Hosanna Tabor unanimously confirmed that the ministerial exception applied to workers of religious institutions who held formal ministerial titles, were educated as spiritual instructions, and whose roles consisted of passing on the sacred beliefs and commitments of a religion.
In Our Lady of Guadalupe, the teachers were not "commissioned" or named as religious teachers. So the question before the Court in this case was whether these teachers were covered by the ministerial exception. According to Becket, Our Lady of Guadalupe School is a religious educational institution whose mission is to provide a holistic formative experience for students rooted in teaching and living out the Catholic faith. After the school believed Morrissey-Berru- a teacher performing religious instruction, leading prayer and preparing students for explicitly religious activities- exhibited performance challenges, the school in 2015 declined to renew her contract. When Ms. Morrissey-Berru brought suit in federal district court, the Court noted that the teacher was barred from suing under the ministerial exemption, upholding the freedom of Our Lady of Guadalupe to select its religious teachers without government entanglement. The Ninth Circuit Court of Appeals reversed the lower court’s holding, siding with Ms. Morrissey-Berru.
This surprising appellate decision acknowledged that the teacher played a substantive spiritual role and did agree to integrate Catholic principles into every area of her curricular responsibilities, however, they held that position did not qualify for the ministerial exemption under the test provided in Hosanna Tabor. After an appeal to the Supreme Court in August, the Court agreed to review the case on December 18, 2019, and consolidated the case with St. James School v. Biel, because the cases were similar in the circumstances of the teachers’ contracts and position requirements. The Court heard oral arguments in this case telephonically on May 11, 2020.
The two cases before the Court involve Catholic school teachers who were employed under an agreement that committed these employees to advancing the missions of the religious schools to imbue in the next generation Catholic religious beliefs. In these contracts, both teachers committed to transmitting Catholic religious principles to students, participating in worship, and living out Catholic faith standards through their personal conduct. Alito writes:
“Implicit in the Hosanna-Tabor decision was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of a private religious school’s mission… The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission.”
Alito emphasizes here that central to the understanding of the ministerial exception is it is not a formalistic checklist or solely an emphasis on a teacher’s formal title. Rather, the ministerial exception is meant to consider holistically the actual responsibilities performed by ministerial workers and if these employees are engaged in substantively passing on religious precepts and practices to the next generation.
As Becket states, Ms. Morrissey-Berru was an ambassador of the school’s sacred reason for being and was crucial to the carrying out of the school’s mission of forming the next generation in the Catholic faith. This teacher instructed students on Catholic doctrine, prepared them for liturgical activities central to the faith, led prayer, and was trained at the expense of the school as a certified Catechist. Moreover, as Becket notes: “Every subject she taught was infused with Catholic values.”
SCOTUS Decision Key for Religious Minorities
Spiritually-integrated educational options are vital for all families. This is nowhere more true than in minority faith communities, where both the culture and state-run schools do not transmit the faith’s sacred principles and rituals. In faith communities whose animating paradigms and central beliefs are countercultural, their own institutions have to be fully free to form their young, integrating faith into every aspect of instruction, character development, service and play. Alito’s opinion recognizes the substantive and varied tapestry of faith-based education in our pluralistic society. Alito provides a brief survey of the religious traditions in the United States that find central to the practice of their faith the transmission of that faith to the next generation through spiritual education. Alito captures the relevance of this case to Catholic, Protestant, Muslim, Jewish, Seventh-day Adventist, and The Church of Jesus Christ of Latter-day Saints faith practices around spiritual formation of young people.
It is worth noting that this decision has significant bearing on practitioners of minority faiths in the United States. Many faith-based institutions in minority faith traditions already face barriers to fully exercising their sacred beliefs and precepts, including disproportionate threats to their security and public misunderstanding ranging from religious literacy deficits to anti-Semitism and Islamophobia. Some minority faith practitioners and the institutions they form often also face additional barriers in navigating legal structures, including understanding their legal freedoms, how to navigate government partnership opportunities, and how to engage with public officials.
Ismail Royer, director of the Islam and Religious Freedom Action Team at the Religious Freedom Institute shared with me: “As the Court noted, education is a central way in which Muslims pass on our faith to succeeding generations, and this decision safeguards our ability to do that by ensuring that Muslim communities can staff their schools with minimal government interference.”
Orthodox Union President Mark (Moishe) Bane stated:
“We applaud the Court for its decision and we express our appreciation for the blessing of living in the United States of America where Jews, and people of all faiths, can enjoy such expansive freedom of religion. We appreciate the recognition by Justice Alito and a majority of the Court that ‘religious education is vital to many faiths…including Judaism’ as expressed by Maimonides’s statement that religious instruction ‘is an obligation of the highest order.’ Today’s ruling will continue to protect this pillar of American Jewish life.”
While Hosanna Tabor was a strong affirmation of the freedom of religious communities to select their leaders and teachers, in not defining who is a minister it left uncertainty. This lack of clarity left faith-based educational institutions, including those of minority faiths, uncertain whether they are truly free to select teachers who fully embody their most sacred values. Much of that uncertainty has now been removed. While clearly not everyone is a minister, the Court has affirmed that not only clergy and not only religiously-commissioned teachers outside of houses of worship are ministers, over whose selection and firing a religious institution has broad and strong freedom. This is so important for many faiths who do not define their beliefs and practices in stereotypical ways.
Now, faith-based schools and educational programs of all faiths can have peace of mind that they may select their own spiritual instructors that holistically and comprehensively incarnate their sacred precepts without government reprisal. Our Lady of Guadalupe upholds the freedom of all faith-based institutions to define and even strongly disagree with each other about their sacred animating beliefs. This is important for so many faith systems that offer an integral vision where sacred texts and beliefs impact every area of life.
James Skillen, speaking from a neo-Calvinist perspective, writes: “The distinction between the sacred and the secular is a mistaken dualism rooted in unbiblical faith.”
This sentiment of spiritual commitments impacting every areas of life is also reflected through Michael McNally, author of Defend the Sacred: Native American Religious Freedom Beyond the First Amendment, who writes:
“Native American traditions have long eluded capture by the modern Western category of religion, but Native American people have out of necessity appealed to the American discourse of religious freedom to assert their sacred claims. Ojibwe people with whom I’ve worked the past 25 years hasten to point out that there is no word for ‘religion’ in their language: Religion can be found everywhere and nowhere at once in a traditional lifeway through which they seek the full integration of the sacred.”
This case upholds institutional pluralism by protecting the ability of different religious and spiritual groups to form their rising generations in their distinct visions and practices around what it means to be human and how to define what is sacred.
As Becket notes: “A broad and flexible approach is especially important to minority religious groups, who often must partner with people from other faith backgrounds to operate their religious schools.”
Chelsea Langston Bombino is the director of Sacred Sector, an initiative of the Center for Public Justice. Sacred Sector is a learning community for faith-based organizations and emerging leaders within the faith-based nonprofit sector to integrate and fully embody their sacred missions in every area of organizational life. Chelsea lives in Maryland with her husband and her infant son.
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