The Fate of the First Amendment Will Be Decided By These Nine Cases

This month the Little Sisters of the Poor returned to the U.S. Supreme Court, once again defending their right to practice the Catholic Faith by refusing to provide for contraceptives in their health insurance plan.

This is a stark reminder that even years later the Obama administration’s assault on religious freedom continues to impact religious organizations. And other serious threats have since emerged.

Catholic educators especially are nervously awaiting court rulings that could have a severe impact on schools and colleges. That’s scary, but it’s also true that each case presents a new opportunity to re-establish the rights of religious educators under the First Amendment, should judges be so inclined.

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This month the Supreme Court heard arguments regarding the “ministerial exception,” a legal principle which prevents courts from interfering with the selection and removal of religious leaders or “ministers.” Catholic elementary schools in California are at the center of two cases under review: Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel.

Effectively, the ministerial exception means that churches and religious organizations can set their own criteria for choosing, hiring, and firing certain employees with clear religious duties. It is essential that the Catholic Church be permitted, for example, to ordain only men without being sued for sex discrimination, or remove a missionary from a region without the threat of costly litigation.

Any religious organization needs the freedom to apply whatever criteria it deems necessary when choosing people to represent and teach its beliefs. The decision is fundamentally a religious one, and so it cannot be scrutinized by a court without risking government interference in religion and thereby violating the First Amendment.

Nevertheless, the Supreme Court has been cautious about applying the principle. It means that an employee designated a “minister” has no ability to file a discrimination claim, and so there are good reasons to be careful in defining the exception.

In 2012, the Court ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the ministerial exception could be applied to a teacher who engaged in substantial secular duties but also taught religion and was formally deemed a “minister” by her church. The two new cases concern catechists at Catholic schools.

Under consideration is whether anyone who teaches religion—lay, religious, or clergy—should be under the ministerial exception, regardless of their job title or any formal religious certification as a “minister.” A broader question is whether teachers of other academic subjects should fall under the exception because, at least in a Catholic school, all teachers should be teaching the insights of the Catholic Faith as they relate to their subject. Teachers should also be witnessing to the Faith in both word and action, and they should be leading students in prayer.

An amicus brief to the Court prepared by Alliance Defending Freedom—and joined by the Association of Classical Christian Educators, the Association for Biblical Higher Education, and The Cardinal Newman Society—proposes a simple test for the Court to apply the ministerial exception: identify evidence that an employee of a religious organization substantially engages in religious functions, which are defined by the religious organization in a “good faith” effort to uphold its religious beliefs.

Another case to watch is InterVarsity Christian Fellowship/USA v. University of Iowa, which is now before the U.S. Court of Appeals for the Eighth Circuit. At issue is the University’s refusal to register a Christian organization, because it would require its leaders to adhere to its religious beliefs.

The case revolves around the ministerial exception, which is of concern to Catholic educators. The Becket Fund is defending the students, and a brief supporting them was filed in March by The Cardinal Newman Society, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Lutheran Church-Missouri Synod.

The Supreme Court is expected to rule very soon on whether federal law against sex discrimination can be used to prohibit religious organizations from upholding moral standards on homosexuality and gender. At issue is Title VII, which concerns employment, but educators are nervous because the education laws under Title IX are based upon Title VII’s nondiscrimination language.

The Obama administration tried to force schools and colleges under Title IX to admit “transgender” students to single-sex bathrooms, locker rooms, and sports teams under the guise of preventing sex discrimination. Faithful Catholic educators have consistently maintained that “sex” means male and female, as each person is created naturally, and laws against sex discrimination have always been rooted in the same understanding.

Now the Supreme Court is being asked to redefine “sex” in three cases: Altitude Express Inc. v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. The latter case concerns whether sex discrimination laws protect “gender identity,” and the others address “sexual orientation.”

Prior to the Court’s combined hearing of the cases in October, the U.S. Conference of Catholic Bishops (USCCB) weighed in with two strong amicus briefs defending religious organizations. Joining the briefs were The Cardinal Newman Society, the Catholic Bar Association, the Anglican Church, Southern Baptists, and Christian Schools International.

Both USCCB briefs highlighted the importance of upholding Catholic teaching on gender and sexuality in Catholic education:

To carry out their religious mission, faith-based schools must be able to hire and retain employees who agree with, and abide by the tenets of, the faith that it is the school’s purpose to impart. Few things undermine a faith-based school’s religious message as much as speech or conduct on the part of school administrators and teachers that contradict, reject, or distort that message.

The USCCB also explained the danger to Catholic schools, should the Supreme Court re-interpret the meaning of “sex” in Title VII and, by implication, Title IX. The Court could “imperil the ability of the school to effectively teach its faith” by requiring schools to employ people “who, by their speech and conduct, violate the religious teaching, including teaching on sexual ethics, that is a constitutive part of the school’s professed faith.”

Numerous other lawsuits have challenged the crucial role of mission-fit teachers and staff in Catholic schools. Although canon law requires that in Catholic schools “teachers are to be outstanding in correct doctrine and integrity of life,” some want schools to yield to gender ideology and the pro-choice mentality.

In Indiana, a trial court recently refused to dismiss a case brought against the Archdiocese of Indianapolis by a teacher who had been fired after entering a same-sex marriage. In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, a teacher is suing the Archdiocese after he was fired from Cathedral High School for entering into a same-sex marriage.

The decision is especially disconcerting, because the Indiana court displayed an appalling lack of understanding of the Catholic Church. Cathedral is legally independent from the Archdiocese, but as a Catholic school it is under the bishop’s authority according to canon law. Thus the Archdiocese was fully justified in demanding that Cathedral uphold its standards for Catholic school teachers.

The Archdiocese was also right to insist that the Indiana court is interfering in a religious matter by allowing the teacher’s lawsuit to go forward. But the judge decided that the Archdiocese may not have final authority over Catholic education in its boundaries, and so the case cannot be dismissed on the basis of religious freedom.

This strange decision rests on false assumptions arising from another local dispute. Last year, Brebeuf Jesuit Preparatory School appealed to the Vatican for permission to retain its own teacher in a same-sex marriage. Although the Archdiocese has insisted that Brebeuf uphold Catholic principles, the Vatican Congregation for Catholic Education temporarily suspended sanctions against the school until the Vatican rules on the appeal, which is still pending nine months later. The trial judge took advantage of the situation to ignore the obvious religious authority of the Archdiocese.

There’s also a situation developing in Dayton, Ohio. Alumni of Archbishop Alter High School have launched an outrageous campaign to demand that the Archdiocese of Cincinnati remove the “morality clause” from its teacher employment contract. They are responding to the school’s decision not to renew the contract of an English teacher who entered into a same-sex marriage.

Morality clauses ensure that employees are clearly informed of the Church’s moral standards and expectations. Such a clause is an act of charity and justice toward anyone signing an employment contract, in that they know upfront what could cause them to be disciplined or fired.

But in this case, alumni want the moral standards eliminated altogether. They have appealed not only to the Archdiocese, but to state and federal legislators. This is the dangerous nonsense that Catholic education must confront in today’s increasingly secular culture.

More than ever, Catholic educators need to protect schools and colleges from legal threats to their Catholic identity. One of the most important protections is to adopt clear, consistent, and legally sound policies for every aspect of operations, uphold Catholic identity, and explain why certain standards are necessary to faithful Catholic education.

 Photo credit: Getty Images


  • Patrick J. Reilly

    Patrick J. Reilly is president of The Cardinal Newman Society, which promotes and defends faithful Catholic education.

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