The First Amendment to the United States Constitution precludes any law “respecting an establishment of religion, or prohibiting the free exercise thereof.” In
Our Lady of Guadalupe School v. Morrissey-Berru
, the United States Supreme Court ruled that the First Amendment’s “religion clauses” bar courts from even deciding the job bias claims of two teachers who performed “vital religious duties” at Catholic elementary schools in the Archdiocese of Los Angeles.
One of the two schools in the case, Our Lady of Guadalupe School in Hermosa Beach, is represented by BRG&S partner Linda Miller Savitt and senior counsel John J. Manier and Stephanie B. Kantor. The school was sued by a former fifth grade teacher, Agnes Morrisey-Berru, who claimed she was terminated because of her age. The Supreme Court’s decision, published on July 8, 2020, prevents the teacher’s claims from proceeding.
Back in 2012, the Supreme Court adopted a so-called “ministerial exception” to employment laws which apply to religious institutions and certain employees. Lower courts had recognized this exception for nearly 40 years.
Our Lady of Guadalupe persuaded the Supreme Court that Ms. Morrissey-Berru fell within the ministerial exception. She taught religion as part of the overall fifth grade curriculum. At the school’s request, she took religious education courses, and was expected to attend faculty prayer services and participate in school liturgical activities when requested.
As is customary in the private school setting, Ms. Morrissey-Berru had to be rehired each year with approval of the Catholic priest who served as pastor of the parish. If offered to stay on, she would sign an annual employment agreement. Emphasizing the religious nature of her duties, the agreement stated that all her teaching duties and responsibilities were to be performed within the school’s “mission … ‘
to develop and promote a Catholic School Faith Community
,’” and that “
teachers were expected to ‘model and promote’ Catholic ‘faith and morals.
’” The agreement allowed for-cause termination for failure “to carry out these duties or for ‘conduct that brings discredit upon the School or the Roman Catholic Church.’” She also was bound by an administrative handbook which included similar provisions.
Like all teachers in the Archdiocese of Los Angeles, Ms. Morrissey-Berru was considered a teacher of religion, or “catechist.” She was responsible for each of her students’ daily faith formation, and taught religion every day with “a textbook designed for use in teaching religion to young Catholic students.” She gave students a yearly exam on the required curriculum, which included teachings and doctrines central to the Catholic faith. She also directed and produced an annual “passion play” every spring.
In regard to specific religious practices in the curriculum, Ms. Morrissey-Berru prepared students to participate in Mass, communion, and confession, took students to Mass once per week and on certain Catholic “feast days,” occasionally selected and prepared students to give readings at Mass, and took them to confession and “to pray the Stations of the Cross.” She also took them on annual trips to the Catholic Cathedral in downtown Los Angeles, where they participated as altar servers. Every class day began or ended with a “Hail Mary” prayer. Ms. Morrissey-Berru led the class in prayer at other times and taught them to recite various prayers and creeds.
Our Lady of Guadalupe used religious standards to review Ms. Morrissey-Berru’s job performance as a teacher. She admitted that she tried to instruct students consistent with Catholic teachings and values, and her principal expected her to do so.
The school moved Ms. Morrissey-Berru from full-time to part time in 2014, and declined to renew her teaching contract in 2015. She sued for age discrimination under federal law. The school maintained that it based its decisions on Ms. Morrissey-Berru’s failure to implement the school’s new reading and writing program. It also claimed that the “ministerial exception” barred the lawsuit altogether.
A federal district court judge concluded that Ms. Morrissey-Berru fell under the ministerial exception and dismissed her lawsuit. The Ninth Circuit U.S. Court of Appeals disagreed, but the Supreme Court agreed to hear the case and ultimately ruled in favor of Our Lady of Guadalupe last week.
The High Court’s ruling also applied to a separate lawsuit brought by Kristen Biel, who taught at St. James School in Torrance and had duties similar to Ms. Morrissey-Berru’s. The school declined to review Ms. Biel’s contract after her first full year of teaching fifth grade. She claimed she was terminated because she requested a leave of absence to be treated for breast cancer. She passed away while her lawsuit was still pending, so her husband pursued the case on behalf of her estate.
The Supreme Court stated that many factors may be important in determining whether a particular position falls under the ministerial exception. Giving an employee the title of “minister” is not enough to justify the exception—and it also is not required, since many religious traditions do not use that title or any equivalent title. Similarly, the Court stated that a position’s academic requirements may be important, but are not necessarily required in every case—especially for teachers, such as those in elementary schools, who need not always have formal religious education to perform their duties.
The Court declared that it matters most “
what an employee does
.” In particular, “educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” The Court recognized that religious education is vital to many faiths—including Catholicism, Protestantism, Judaism, Islam, the Church of Jesus Christ of Latter-day Saints, the Seventh-day Adventists, and others.
The Court found abundant evidence that Ms. Morrissey-Berru and Ms. Biel “both performed vital religious duties,” consistent with their respective employment agreements and handbooks. They were the school staff members “who were entrusted most directly with the responsibility of educating their students in the faith,” and were “expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.”
In making its sweeping ruling, the Supreme Court rejected the Ninth Circuit’s suggestion that the ministerial exception should be viewed narrowly because federal job bias laws already allow religious employers to give preference to members of their faith. The Court explained that the ministerial exception “serves an entirely different purpose,” and addresses cases where the employee fails “to perform essential functions in a satisfactory manner.” The Court also stated that an employee may fall under the exception even if she is not “a ‘practicing’ member of the religion with which the employer is associated.”
The Court refused to adopt a “rigid” test for the ministerial exception. Instead, it concluded that “[w]hen a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”
Notably, the lawsuits against Our Lady of Guadalupe and St. James School were brought in federal court, because California’s Fair Employment and Housing Act includes a broad exemption for private, non-profit religious organizations. But such religious employers may be bound by other state laws, including wage and hour statutes. It is not yet clear whether the U.S. Supreme Court decision in
Our Lady of Guadalupe
would preclude cases under such laws from being pursued by employees who fall under the ministerial exception.
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700, or visit us online at
Linda C. Miller Savitt
John J. Manier
Stephanie B. Kantor
Ballard Rosenberg Golper & Savitt, LLP