Religious liberty for institutions but not for individuals

Private religious schools are mostly shielded from anti-discrimination suits for their hiring and firing decisions, the Supreme Court ruled Wednesday in a 7-2 decision on Our Lady of Guadalupe School v. Morrissey-Berru (consolidated with a similar case, St. James School v. Biel). The ruling clarifies the court's doctrine of "ministerial exception" to employment discrimination laws, an idea that developed in the federal court system for half a century but was not explicitly affirmed by the Supreme Court until 2012, when the justices endorsed it 9-0.

The ministerial exception — which says religious institutions can't be forced by the state to keep employees at odds with their beliefs and practices — is not a bad idea. If the alternative is current law with no ministerial exception, the exception is a welcome doctrine indeed. But I'm unconvinced it's the best approach to preserving this aspect of religious liberty. For while it protects religious institutions, the ministerial exception does not protect religion itself.

To understand that distinction, it's helpful to review how the exception works. "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision," argued Chief Justice John Roberts in the unanimous 2012 decision. "By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments," he wrote, as well as "the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions."

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Though it also involved a religious school, that ruling didn't settle who, exactly, counts as a "minister." It gave four guidelines (title, training, self-description, and responsibilities) which made clear the category was not limited to the ordained. Beyond that, however, confusion flourished.

The Morrissey-Berru ruling establishes a deference to religious institutions' own "explanation of the role of such employees in the life of the religion in question." Because judges will typically approach these cases with an outsider's perspective, the institutions' accounts of their own creed and purpose must be respected by the secular state. For religious schools, Justice Samuel Alito argued for the majority, "the selection and supervision of the teachers" to perform "religious education and formation of students" is an existential task that must not be obstructed.

How this clarification will apply to other faith-based institutions — say, Catholic hospitals, Baptist universities, Jewish charities, or Muslim community centers — remains to be seen. Justice Elena Kagan, a member of the court's liberal wing who joined the majority on Wednesday, indicated in oral arguments her dissatisfaction with a model that gives the state power to finely parse where protected religious activities begin and end. That sentiment was reflected in the majority opinion's warning against "judicial entanglement in religious issues."

The exception's design leaves us with two odd outcomes. One is that the protection against discrimination lawsuits extends beyond the culture war situations that immediately come to mind — which is to say, the situations which clearly implicate religious beliefs. In Morrissey-Berru, the teacher suing her former employer, Agnes Morrissey-Berru, alleges age discrimination. (The school says the problem was her teaching performance with a new curriculum needed for accreditation.) In the paired case, the teacher, Kristen Biel, claimed disability discrimination because her contract was not renewed after she requested time off after a cancer diagnosis. (The school says her classroom management was at issue.) The nature of these cases — a religious exception for terminations that don't appear religious — makes for a confusing conversation about religious liberty. It creates a path to argument that religious institutions want special privileges rather than equal constitutional rights, and that path has promptly been traveled.

That brings us to this distinction between religious institutions and religion itself. In Obergefell v. Hodges, the landmark 2015 case that legalized gay marriage nationwide, Justice Anthony Kennedy promised protection for both "organizations and persons" who have sincere religious opposition to same-sex marriage. The ministerial exception provides the first half of that protection (for religious institutions) but not the second (for religious persons more generally).

From a religious perspective, this is an artificial division. The Morrissey-Berru opinion speaks repeatedly of institutions' "sincere" beliefs and determinations and observes that religious schools often require commitments of "worship" and "personal modeling of the faith" from employees. But for religious people, these demands of belief and practice are not contained by institutional walls. They are not merely an HR policy. They apply to everyone in the faith, all the time, because they're an outworking of the religion's understanding of God's requirements of humanity. They're a decision made above the school administration's pay grade, so to speak.

To use the gay marriage example from Obergefell, which is where many of these conversations are focused, if you believe God doesn't condone gay marriage, the implications for your behavior don't depend on your working in a religious institution. It's just as applicable, for instance, if you run a cake shop or arrange flowers — but you get no ministerial exception there. Likewise, a religious person who believes God loves gay marriage could not, absent a ministerial exception, fire an employee because the employee's religion doesn't approve gay unions.

The ministerial exception protects free exercise of religion within religious institutions. But most religious people don't work there. Thinking strictly in terms of religious liberty, I'd far rather see religious institutions lose the protections specifically at issue in Morrissey-Berru — which is to say, subject them to the same rules about age and disability as everyone else — if that could be somehow traded for broader protection of religious exercise outside of religious contexts. (This is just a thought experiment; our legal system doesn't make that sort of "trade.")

As it is, the ministerial exception guards the organizations but not the persons, creating a "religious autonomous zone" of private homes, houses of worship, religious schools, and the like. It doesn't prohibit free exercise of religion, but it operates on too narrow an understanding of what that exercise entails.