The US Supreme Court had previously decided that religious schools are allowed a “ministerial protection” which grants those institutions the freedom to promulgate their faith.
But now, in a move that should worry all Catholics concerned about the freedom of Catholics schools, the Supreme Court will look again at whether teachers at religious schools are ‘ministerial.’
So, in short, Catholic schools will have the freedom to teach the faith but the court may decide that they get to decide who teaches it.
The Supreme Court will consider how much leeway religious organizations have in firing their employees in two cases from California filed by teachers who lost their jobs at Catholic schools.
The court said Wednesday that it will combine the cases, in which panels of the U.S. Court of Appeals for the 9th Circuit in San Francisco said teachers could proceed with their lawsuits against the schools. One teacher alleged age discrimination, and another, now deceased and represented by her husband, said she was fired after informing the school that she had breast cancer.
The cases ask the court for further guidance on when an employee should be considered secular and, thus, able to take advantage of anti-discrimination laws — or religious, and thus unable to do so.
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Religious organizations — and dissenting conservative judges on the 9th Circuit — said the decisions in the two California cases did not follow precedent set by the Supreme Court in 2012. In the unanimous decision, the court said the “ministerial exception” meant that a former teacher at a Michigan Lutheran school could not sue her employer.
The decision said, in part, that the First Amendment protects religious organizations in deciding whom to employ to espouse religious training. It added that courts should look not just at an employee’s title, but also duties, in deciding whether religious instruction was an important function of the job.
The Becket Fund for Religious Liberty said in a brief asking the Supreme Court to intervene that only the 9th Circuit has interpreted the standard so narrowly that only cases exactly like the one decided by Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC were prohibited.
“Seven federal courts of appeals and seven state supreme courts, in cases involving Catholic, Protestant, and Jewish employers and many different kinds of roles, have all concluded that the presence or absence of religious function is the touchstone of the ministerial exception inquiry,” it said.
“In the face of that united approach among its sister courts, the Ninth Circuit decided to flout the consensus,” the brief said, and conclude that “important religious functions could never be enough, by themselves, to prove an employee’s ministerial status.”
If Catholic schools can not hire and fire for mission what will they be allowed to do?