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Kavanaugh and Gorsuch Bailed Out Attorney Who Bombed Hypotheticals Test in Religious Liberty Case 


The Supreme Court of the United States heard oral arguments Monday in Morrissey-Berru v. Our Lady of Guadalupe, a case that asks whether religious schools are exempt from federal anti-discrimination laws. SCOTUS consolidated two cases: that of Agnes Morrissey-Berru, a sixth-grade substitute teacher who brought an age-discrimination claim against Our Lady of Guadalupe Catholic School, and fifth-grade teacher Kristin Biel, who filed a claim under the Americans with Disabilities Act for discrimination against St. James Catholic School.

The Catholic schools argue that the teachers have no protection from anti-discrimination laws, because they fall within the “ministerial exception.” That exception stems from a 2012 Supreme Court case that ruled churches have full freedom to decide who will hold a position as a religious leader. Now, the religious schools argue that teachers should be considered “ministers” for purposes of anti-discrimination law; they can be hired and fired without regard for what the law would otherwise require of a secular employer. The case brings up an interesting intersection between religion, education, and law: the more central and important a teacher is considered, the less likely that teacher is to be protected by federal law.

As counsel for Our Lady of Guadalupe School Eric Rassbach put it during oral arguments, the dispute is over “Who ought to teach kids about Jesus being the son of God.” Rassbach argued that “[t]eaching the faith is one of the most important functions of the religious communities,” and that classroom teachers should fall within the ministerial exception, in part, because “teachers teach much more than Catholic priests.”

As oral arguments advanced Monday, though, Rassbach’s argument unraveled. Justice Ruth Bader Ginsburg started off the throw-out-a-hypothetical game. She raised the pointed question, “You do not have to be Catholic to be a sixth-grade teacher. How can a Jewish teacher be required to model Catholic faith contra to his or her own beliefs? How can a Jewish teacher be a Catholic minister?” Before Rassbach could directly address RBG’s tough question, though, Justice Stephen Breyer began a slightly different line of questioning.

Rassbach’s reprieve was to be short-lived. Soon thereafter, Justice Elena Kagan tested Rassbach’s central premise by presenting nine rapid-fire hypotheticals — and asking that he answer them in two words each. When pressed, Rassbach’s ministers-are-anyone-we-say-they-are argument folded like a cheap suit.

He admitted that religious institutions would likely not be entitled to invoke the ministerial exception against claims by these hypothetical employees:

  1. A math teacher who is told to teach something about Judaism for 10 minutes a week. That’s all you know about him;
  2. A math teacher who begins every class by leading students for twenty seconds in the Shema (a short Jewish daily prayer);
  3. An employee at soup kitchen who distributes religious literature and leads grace before meals; and
  4. A non-Jewish cook who prepares kosher meals for kids at a Jewish school.

In two other hypotheticals, Rassbach said it would “depend” whether the staffers could be considered “ministers:”

  1. A math teacher who was told to, “embody Jewish values and infuse instruction with Jewish values;” and
  2. A counselor at a church-affiliated rehab clinic that urges patients to reconnect with their faith communities.

Rassbach was only comfortable saying a nurse at a Catholic hospital who prays with sick patients “may well” fall within the ministerial exception. Only three of Kagan’s hypotheticals elicited a more confident response from Rassbach. He said that a press or communications staffer who prepares press releases for religious institutions “should fall” within the exception, as would a church organist who provides music.

At this point, you’re probably wondering: “Wasn’t this guy the one who was arguing for the religious schools?” Yeah, so were we. The crux of Rassbach’s argument was that classroom teachers are clearly “ministers” for the purposes of anti-discrimination law, because their function is central to teaching religion. But his answers didn’t line up very well with the facts of his case. Ms. Morrissey-Berru wasn’t a practicing Catholic, and didn’t have special religious training; she instructed her students in religion, but also taught a variety of other subjects. After Justice Kagan’s list of hypotheticals, Rassbach was floundering. Luckily for him, Justices Neil Gorsuch and Brett Kavanaugh were on hand to throw him a lifeline.

Justice Gorusch directed Rassbach’s argument away from future hypotheticals and back to the bench; he helpfully suggested that perhaps secular courts shouldn’t be involved at all. After all, according to the well-versed-in-religions-of-the-world-Gorsuch, what if some school asked all employees to take pledges and minister to students? In that case, the court really couldn’t decide who is a minister and who isn’t. So maybe the court should just give complete deference to what the religious institutions say.

Justice Kavanaugh jumped in, too, letting Rassbach know that he gets him. Kavanaugh pitched the softball, “Do you think the exception applies to teachers who teach religious doctrine, or teachers more broadly that teach religious values? Which of the two are you looking at?”  This allowed Rassbach to get back on track with his argument that teachers who teach religion “devotionally” would qualify as “ministers,” while others might not.

Later in the argument, a silent-until-coronavirus Justice Clarence Thomas picked up where his conservative colleagues left off. He asked Assistant to the Solicitor General Morgan L. Ratner the following question:

I am perplexed as to what you do with the chemistry teacher that starts class with a Hail Mary. Or the lay teacher who teaches religion, but does it in a straight-forward, objective way. What standards would a secular court use to determine which of those is an important duty or function?

Justice Ginsburg appeared unconvinced that a win for the schools could lead to anything but trouble. She called the proposed breadth of the ministerial exception “staggering,” and asked:

Suppose a teacher who does everything as a faith leader also reports a student’s complaint of sexual harassment by a priest and is terminated. She has no remedy?

We expect a decision from SCOTUS in this case by mid-summer, and will keep you posted on it when it’s handed down.

[image via Doug Mills-Pool/Getty Images]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos