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Supreme Court's religious employer ruling could weaken LGBTQ protections

Critics say the ruling, which broadens the “ministerial exception” in employment nondiscrimination law, could open a Pandora’s box of workplace discrimination.
Activists rally in support of LGBTQ rights at City Hall in New York on Oct. 8, 2019.
Activists rally in support of LGBTQ rights at City Hall in New York on Oct. 8, 2019.Drew Angerer / Getty Images

The Supreme Court’s ruling Wednesday in Our Lady of Guadalupe School v. Morrissey-Berru, which strengthened the legal protections that shield religious institutions from job discrimination lawsuits, could weaken LGBTQ worker protections, according to some legal experts and advocates.

The case involved Roman Catholic schools in California that were sued after deciding not to renew contracts for two teachers. In the 7-2 decision, written by conservative Justice Samuel Alito, the high court held that the “ministerial exception” to nondiscrimination law applies to teachers at religiously affiliated schools whose job includes some element of religious instruction.

“When 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,” Alito wrote for the majority.

But while conservatives and “religious freedom” advocates applauded Wednesday’s decision, which they say clarifies the “ministerial exception” to civil rights law, LGBTQ advocates and the court’s liberal dissenters say the ruling opens up the door to employment discrimination by religious institutions.

‘Broadening’ the ‘ministerial exception’

In 2012, the Equal Employment Opportunity Commission (EEOC), the federal agency tasked with enforcing employment nondiscrimination, sued an evangelical Lutheran church and a school in Michigan on behalf of a “called” teacher who underwent theology training and was fired after taking disability leave. The EEOC lost the case, and the Supreme Court’s ruling established the “ministerial exception,” a constitutional protection for religious organizations to prevent government interference in the hiring and firing of ministers.

"The Supreme Court opened a veritable Pandora’s box that threatens the continued employment and financial security of thousands of teachers at religiously affiliated schools."

Jennifer C. Pizer Lambda Legal

Arthur Leonard, a professor of labor and employment law at New York Law School, said Wednesday’s ruling, which overturned a lower court’s decision, was a “broadening” of the ministerial exception under discrimination law.

In reversing the lower court’s decision this week, Leonard said that the Supreme Court found that even if teachers “had some religious role, then the ministerial exception applies.”

John Bursch, an attorney for conservative legal organization Alliance Defending Freedom, said the court’s decision “clears up disagreements in the lower courts about the right way to define ‘minister,’” by focusing on the work performed by the employee, rather than their title.

“The court has respected the autonomy of faith-based schools and prevented the government from interfering with the internal operations and autonomy of religious organizations,” he said.

Ruling could open Pandora’s box of discrimination

Wednesday’s ruling comes less than a month after another Supreme Court ruling involving employment discrimination: Bostock v. Clayton County, Georgia, which found that Title VII of the Civil Rights Act of 1964 bans workplace discrimination based on sexual orientation and gender identity. While the Our Lady of Guadalupe School ruling does not explicitly deal with LGBTQ workers, it may shield religious institutions that discriminate against them.

Eric Rassbach, senior counsel at Becket Law, who argued the case on behalf of the California schools, said the Bostock and Our Lady cases should be read together.

“I think you do have to look at them together and in the case of religious organizations that means that the government is significantly limited, and courts are significantly limited, in how much they can intrude on the internal affairs of religious organizations,” Rassbach said on a call with reporters.

Justice Sonia Sotomayor, in her dissent, warned that Wednesday’s decision may provide a “rubber stamp” for employment discrimination by religious institutions.

“Although today’s decision is limited to certain ‘teachers of religion,’ its reasoning risks rendering almost every Catholic parishioner and parent in the Archdiocese of Los Angeles a Catholic minister,” she wrote in her dissent, which Justice Ruth Bader Ginsburg joined. “That is, the Court’s apparent deference here threatens to make nearly anyone whom the schools might hire ‘ministers’ unprotected from discrimination in the hiring process. That cannot be right.”

LGBTQ advocates echoed Sotomayor’s concerns, worrying that the ruling has opened the door to discrimination.

“The Supreme Court opened a veritable Pandora’s box that threatens the continued employment and financial security of thousands of teachers at religiously affiliated schools,” Jennifer C. Pizer, senior counsel at Lambda Legal, which joined an amicus backing the teachers, said in a statement. “The ministerial exemption especially should not apply to strip protections from teachers with secular roles at large educational institutions that serve the entire general public, regardless of whether those institutions have some sort of religious ties.”

Leonard agreed that Wednesday’s ruling could have a major impact on the many LGBTQ people employed by religious schools.

“Ever since the Obergefell decision in 2015 on same-sex marriage, we have seen this phenomenon around the country where lesbian or gay teachers at Catholic schools married their same-sex partner and their schools have fired them,” Leonard said, referring to the landmark Supreme Court case legalizing same-sex marriage in the United States. “Many have tried to sue. … Those cases are probably doomed as a result of this ruling.”

The clash between gay employees and a religious institution has been playing out in Indiana for several years. Two guidance counselors, Shelley Fitzgerald and Lynn Starkey, and a German language and social studies teacher, Joshua Payne-Elliot, are all suing the Archdiocese of Indianapolis in three separate cases because they were fired when their same-sex marriages became public.

Kathleen DeLaney, the attorney for Starkey and Payne-Elliot, called this week’s Supreme Court decision “distressing.”

“It’s very unfortunate that this is the direction we are heading — that the court is elevating ‘religious freedom’ over the freedom of employees to be who they are, love who they love and conduct their private lives how they choose,” she said.

DeLaney, however, stressed that her clients’ cases are far from over, citing important differences between the cases the Supreme Court reviewed and her clients’ cases. Namely, her clients had no religious teaching responsibilities and are suing under different statutes.

“Courts decide the cases before them, and our cases are different,” DeLaney said.

The high court is slated to hear another case in the fall concerning the extent of religious liberty with potentially major consequences for LGBTQ rights and beyond.

The court will hear a dispute between the city of Philadelphia and a Catholic charity over the extent to which religious organizations that receive taxpayer dollars can refuse to work with same-sex prospective foster parents. The case could have a significant impact on the parental rights of lesbians and gays and nondiscrimination law more broadly.

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