Supreme Court Maintains Religious School Exemption

July 9, 2020

On Tuesday, the Supreme Court indicated in Our Lady of Guadalupe School v. Morrissey-Berru that employee discrimination claims against religious schools are barred when the employee’s duties involve religious instruction. The decision can be found here. The Court asserted that such lawsuits stifle the freedom of religion granted by the First Amendment, insofar as that religious institutions should have the sole discretion as to who passes along religious knowledge to youngsters. This rationale, seen in a 2012 case, has been called the “ministerial exception” by the media and has great potential impact on the lives of employees who are charged with faith education at religious institutions.

Factual Background

The Supreme Court ruled on two cases involving claims brought by teachers fired at two Catholic elementary schools in Los Angeles. One teacher claimed she was discriminated against based on age; the husband of another teacher, who is now deceased, claimed the teacher lost her job when she disclosed that she was going to be receiving treatment for breast cancer.


The Court framed the issue as whether the First Amendment, which grants religious freedom, permits the government to interfere with employment decisions at religious institutions, where employees have the duty of instructing students on the tenets of their shared faith. The Court indicates that the “selection and supervision” of teachers in religious schools is crucial to their mission of furthering the religious education of children. As such, the Court views interfering with employment decisions of religious educators as an infringement upon First Amendment rights.

Although the employees in these cases were not “ministers” in the sense that they were not formal religious leaders, they taught religion to students, said daily prayers with students, and attended Catholic Mass with them. Use of the term “minister” is not crucial to an employee falling into the exception, as many religions do not use the term at all. Rather, what matters is that an employee is involved with “educating and forming” the faith of students at the organization.


Justices Sotomayor and Ginsburg believe the rationale of the majority is improper because it leaves employees of religious institutions vulnerable, particularly those that would normally be in protected categories due to age and disability status. The dissenters point out that the teachers also taught a myriad of other subjects – not just religion – and were not even required to be a member of the Catholic faith themselves. Sotomayor and Ginsburg view the ministerial exception as a way for religious employers to make discriminatory hiring decisions even when the “discrimination is wholly unrelated to the employer’s religious beliefs or practices.”


If a position does fall under the ministerial exception, courts will not oversee hiring, firing, or promotions, even if decisions are seemingly based in discriminatory practice. The Court provides the following guidance as to who falls under the exception: “What matters, at bottom, is what the employee does.” As such, it does not seem likely that courts will interpret this decision to mean that any employee at a religious organization is subject to the ministerial exception. However, it still has powerful implications for any employee who is charged with religious education.

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