WASHINGTON — Less than a month after the US Supreme Court ruled that employers generally can’t discriminate against employees based on sexual orientation and gender identity, the court on Wednesday expanded exemptions for religious employers facing discrimination claims.
The First Amendment protects religious institutions from government interference, and that can include exemption from certain anti-discrimination laws. In a 7–2 decision, the Supreme Court held that religious schools should have leeway to decide whether a teacher is the type of religious leader covered by the “ministerial exception” to employment laws. Teachers who fall under the exception can’t sue if they’re fired for reasons that otherwise would be protected by federal law — in this case, their age or disability status.
Wednesday’s ruling didn’t involve LGBTQ employees, but it’s the type of decision that civil rights groups are worried about after the Supreme Court’s historic LGBTQ rights decision in June. In Bostock v. Clayton County, the court ruled that federal laws against sex discrimination also protect LGBTQ employees. But the court made clear that their decision didn’t resolve whether employers could successfully claim religious grounds for workplace discrimination in the future.
Jennifer Pizer, senior counsel and law and policy director for the LGBTQ group Lambda Legal, told BuzzFeed News that advocates “saw today coming” and were concerned that Wednesday’s decision was a sign that the court would side with religious employers in cases involving LGBTQ workers going forward.
“What the court today is saying is that religious schools have the authority to deem teachers ministers, that that’s a power that the religious school has, whether or not the teacher would be considered a minister by any usual meaning of the word,” Pizer said. “That means LGBT people are terribly vulnerable, and so is everyone else.”
Conservatives and religious organizations heralded the decision as an important win for religious freedom protections under the First Amendment.
“Today’s Supreme Court decision confirms that government has no business second-guessing the selection of religion teachers at religious schools,” Grazie Christie, policy advisor for The Catholic Association, said in a statement. “It is a clear win for the First Amendment and religious liberty when the highest court affirms the right of religious institutions to be free of government interference and meddling.”
Wednesday’s decision came out of two cases involving elementary school teachers who both worked at Catholic schools. Neither had the title of “minister” or some equivalent. They both taught a variety of subjects, both secular and religious, and engaged in worship with their students. Each sued their employer when their contracts weren’t renewed — one teacher brought an age discrimination claim and the other alleged she was fired for taking time off for breast cancer treatment.
The Supreme Court in 2012 broadly upheld the principle of the ministerial exception under the Establishment and Free Exercise Clauses of the First Amendment. The justices unanimously held that, broadly speaking, the government shouldn’t be able to dictate who a church or other religious institution chose as a minister or spiritual leader.
The latest cases tested how widely that principle could apply to religious school employees. The two teachers, backed by civil liberties organizations and Democratic state attorneys general, argued for a narrower interpretation.
Justice Samuel Alito Jr. wrote the majority opinion. He wrote that even though neither employee had the title of “minister” and didn’t perform many of the traditional functions of a religious leader, the exception still applied because they “performed vital religious duties” by teaching the Catholic faith.
Alito wrote that courts should defer to employers to say whether an employee performs a significant religious function as part of their job.
“In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition,” Alito wrote. “A religious institution’s explanation of the role of such employees in the life of the religion in question is important.”
Alito was joined by the rest of the court’s more conservative wing — Chief Justice John Roberts Jr. and Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh — along with two members of the court’s more liberal arm, Justices Stephen Breyer and Elena Kagan.
Justice Sonia Sotomayor wrote a dissenting opinion that Justice Ruth Bader Ginsburg joined. Sotomayor wrote that the majority ignored the more complicated framework the court adopted in 2012 for deciding if a religious school teacher fell under the ministerial exception.
“Because that simplistic approach has no basis in law and strips thousands of schoolteachers of their legal protections, I respectfully dissent,” Sotomayor wrote of Alito’s majority opinion.
Wednesday’s opinion was specifically about how the ministerial exception applies to religious schools, but Pizer said LGBTQ advocates were worried the court would extend the same legal reasoning to other faith-based employers in future cases. She said the decision dovetailed with the other decision the Supreme Court released on Wednesday, upholding a Trump administration rule that makes it easier for employers to deny insurance coverage for birth control for religious or moral reasons.
“Having two decisions come down on the same day is a statement of deference to religious schools and people who claim religious beliefs to the detriment of other people,” Pizer said.