Colorado religious school asks Supreme Court to take case on ministerial exception

Written by William C. Duncan

March 16, 2023

At the core of religious freedom is the ability of churches and religious organizations to choose who will represent them by teaching their message. For a government agency to direct a church to select a particular minister is to entangle the government in the most basic religious affairs and an obvious incursion on that church’s ability to maintain its religious identity and share its religious message – the very things that the First Amendment’s establishment and free exercise clauses were designed to prevent.

For this reason, U.S. law has established a principle called the “ministerial exception.” The principle is that a court cannot hear a dispute regarding a religious organization’s selection, supervision or dismissal of an official who holds a position of religious significance in that organization. While the church down the street might choose a leader or teacher that others think unsuited to the role or dismiss someone who endorses religious messages that are popular with some but at odds with the faith, we recognize that the courts should not second-guess those decisions.

Of course, the religious organization may “get it wrong” in the minds of observers. But in a free society, the government is not the custodian of faith – and if it tried to be, the integrity of a religious group (not to mention the impartiality of government in personal religious choices) would be fatally compromised.

The U.S Supreme Court has in recent years decided two important cases about the ministerial exception. In the first, the court unanimously declined to hear a lawsuit alleging discrimination that was brought by a former teacher of daily religion classes and secular subjects at a Lutheran school. In the second, the court declined to hear discrimination lawsuits from ex-teachers at two separate Catholic schools with similar responsibilities to those of the teacher in the first case.

In the latter case, the court majority (the decision was 7-2) explained:

The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.

The Court of Appeals for the 10th Circuit, the court that hears appeals from lower federal court decisions in the region that includes Utah, issued a similar ruling in 2002. In that case, the court held: “When a church makes a personnel decision based on religious doctrine, and holds meetings to discuss that decision and the ecclesiastical doctrine underlying it, the courts will not intervene.”

However, the 10th Circuit seems to have gone back on its previous ruling in an ongoing case involving a religious school in Colorado that dismissed a teacher and “administrator/chaplain” for leading a school assembly on race issues that the school felt misrepresented the religious teachings of the school on the issues involved. The teacher, alleging that students had made highly inappropriate comments and engaged in reprehensible, racially motivated actions, argues that he was fired for discriminatory reasons.

The district court ordered a jury trial in the case to determine whether the teacher had religious responsibilities at the school and, thus, whether the ministerial exception applied. The school appealed that decision.

Two of the three judges assigned to hear the school’s appeal held that the district court must be allowed to hold the jury trial. The dissenting judge noted that there was really no dispute over whether the teacher – who according to the majority opinion in the case prepared and conducted “weekly chapel meetings” – had a religious role at the school. Thus, continued litigation would not be necessary and would, of course, create additional expense and disruption for the parties.

The school has asked the Supreme Court to weigh in to prevent the planned trial. It argues that the teacher has changed the description of his position as the case has progressed to downplay the religious nature of his work, but that the work was primarily religious and thus the case clearly fits within the ministerial exception.

The school’s petition has attracted a diverse array of supporters.

One brief, filed by Brigham Young University, Southern Virginia University and American Heritage School, argues: “If this straightforward case of a religious teacher and chaplain at a religious school can be muddled to the point where a jury trial is required, amici and similar religious schools will find it increasingly difficult to carry out their missions of providing a religiously informed education in a faith-filled environment.” This is particularly important for schools like Southern Virginia and American Heritage, which have a mission to support religious principles but are not directly sponsored by a church, as the brief explains.

Another brief, filed by the Jewish Coalition for Religious Liberty, the Muslim Public Affairs Council, and others points out that the 10th Circuit ruling creates risks that minority religious groups will not receive the constitutional protection secured by the ministerial exception:

These risks are particularly acute for minority faith traditions, who frequently employ ministers with titles and duties unfamiliar to judges and juries—or with no titles at all. An unfamiliar religion may have more difficulty convincing the fact-finder that a leader is undisputedly a “minister” than would a Catholic archdiocese or evangelical Christian church.

It would be a perverse legal outcome indeed if a case grounded in civil rights arguments were decided in a manner that jeopardized the fundamental civil rights of religious minorities. Many other schools and religious groups as well as religious freedom scholars have also weighed in.

This case has particular concern to religious schools in Utah, since federal courts in the state are bound by decisions of the 10th Circuit. If the Supreme Court decided to decline to hear the appeal of the 10th Circuit’s decision to require the religious school to bear the burden and expense of a jury trial, churches and religious schools in Utah (along with those in Colorado, Wyoming, New Mexico, Oklahoma and Kansas) would be forced to follow the 10th Circuit’s decision.

As a society, we have a reasonable desire to prevent government endorsement of a particular religion. We should also be concerned that some in government think it reasonable to meddle in doctrinal and leadership matters of churches and other religious organizations. This case will give the Supreme Court an opportunity to ensure that does not happen.

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