September 2020 Church & State Magazine | Featured

When the U.S. Supreme Court in June affirmed that Title VII of the Civil Rights Act of 1964 did indeed protect LGBTQ people from employment discrimination, Americans United celebrated the landmark victory for civil rights but issued a warning about a fly in the ointment.  

Justice Neil Gorsuch, writing the majority opinion in Bostock v. Clayton County, noted that there were “questions for future cases” still to be decided – including whether claims by employers that their religious beliefs prevented them from following anti-discrimination laws “might supersede Title VII’s commands in appropriate cases.”  

“Another fight is looming,” Americans United President and CEO Rachel Laser predicted. “The progressive, inclusive faith and secular communities must come together to make clear that religious freedom is a shield that protects, not a sword that licenses discrimination and harm to others.”  

The nature of that fight was evident less than a month later when the Supreme Court ruled in a pair of cases that federal anti-discrimination laws do not protect two lay teachers who were fired by private religious schools in California.  

In Our Lady of Guadalupe School v. Morrissey-Berru, the court continued to rely on a broad reading of the legal doctrine called the “ministerial exception,” which is meant to ensure that houses of worship and religious schools have complete freedom to choose employees who preach or teach the faith.  

The court ruled that the educators, though they primarily taught secular subjects, were involved enough in conveying religious tenets to students that the ministerial exception applies to them. Even though the reasons they were fired were unrelated to theology, the court said they were not protected by anti-discrimination laws. (One teacher, Agnes Morrissey-Berru, said she was fired due to her age; the other teacher, the late Kristen Biel, was fired when she began treatment for breast cancer.) 

As Americans United’s legal and policy experts noted in a report analyzing the decision, Title VII is among the anti-discrimination laws that courts have declared don’t apply to ministerial employees. Therefore, the court’s decision in Guadalupe “will unfortunately deprive many teachers of the protections afforded by Title VII, including the many [LGBTQ] people gaining those protections for the first time under Bostock,” AU reported.  

Not only does the Guadalupe decision leave an estimated 300,000      educators at private religious schools unprotected from employment dis­crim­ination, but the court’s ruling in another case decided this summer increased the likelihood that taxpayers will be subsidizing this discrimination. In Espinoza v. Montana Dept. of Revenue, the court said that state private school voucher programs can’t exclude religious schools – many of which have policies of discriminating against staff and students.  

“Houses of worship and religious schools get to decide religious matters without government intrusion, but they shouldn’t get a free pass to fire all educators based on race, gender, age, sexual orientation, disability and other categories for which discrimination is legally forbidden,” AU’s Laser said. “The ministerial exception is meant to apply only to genuine faith leaders. It should not be exploited to justify discrimination against math, gym and computer teachers, who clearly aren’t ministers.  

AU’s report on the case noted that “some unscrupulous employers have begun to abuse the ministerial exception in a conscious attempt wholly to sidestep civil-rights laws. Rather than applying the exception solely to clergy and others who perform important religious functions, they have sought to invoke it – sometimes only after the fact – to employees who have no, or only minor, religious duties. For instance, schools could start assigning trivial religious functions – such as the recitation of a pre-written prayer at a monthly staff meeting – to all employees … so that they may later try to assert that any and all employees fall within the exception. These bad-faith tactics have been on the rise since the Supreme Court recognized the ministerial exception in 2012.”  

After that 2012 decision, two Religious Right organizations – Alliance Defending Freedom and the Southern Baptist Convention’s Ethics and Religious Liberty Commission – issued a manual advising houses of worship and religious organizations to incorporate at least a small amount of religious duties into the job descriptions of as many employees as possible so they’d be able to take advantage of the ministerial exception and ignore anti-discrimination laws, especially those protecting LGBTQ people.  

“Religious freedom and civil rights are fundamental American values,” Laser said. “One shouldn’t come at the expense of the other.”