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Posts Tagged ‘anti-discrimination laws’

Supreme Court Broadens “Ministerial Exception” to Anti-Discrimination Laws, Leaving LGBTQ Employees or Religious Schools Without Protection

Posted on: July 8th, 2020 by Art Leonard No Comments

On June 15, 2020, the Supreme Court ruled that Title VII of the Civil Rights Act of 1964 protects LGBTQ people from employment discrimination.  On July 8, 2020, the Court took away that protection from most LGBTQ people who are employed as teachers by religious schools.  In a ruling expanding a “ministerial exception” to anti-discrimination laws that it had recognized under the Free Exercise Clause of the First Amendment of the Bill of Right eight years previously, the Court held that employees of religious schools whose job entails teaching religion enjoy no protection against discrimination because  of their race or color, religion, national origin, sex, age, or disability.  The Court’s vote in Our Lady of Guadalupe School v. Morrissey-Berru, 2020 WL 3808420, was 7-2.

The prior decision, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U. S. 171 (2012), involved a teacher at a Lutheran church school, whom the Court found to be, in effect, a “minister” of the Church, since she had been formally “called” to the ministry by the congregation after a period of extended theological study, and who had even claimed the tax benefits of being clergy.  Although the teacher in question did not teach religion as her primary assignment, the Court found it easy to conclude that it would violate Hosanna-Tabor’s right to free exercise of religion under the First Amendment for the government to intervene in any way in its decision not to continue this teacher’s employment, even if – as the teacher alleged – she was being discriminated against because of a disability in violation of the Americans with Disabilities Act (ADA).

The July 8 decision involved two teachers at Catholic elementary schools in the Los Angeles Diocese.  Neither of them was formally a “minister,” neither of them had extended religious education.  As grade school teachers, they each taught the full range of subjects, including a weekly unit on Catholic doctrine at appropriate grade level for their students, but the overwhelming majority of their time was spent teaching arithmetic, science, history, reading, and so forth – the normal range of what a grade school teacher covers, but with an overlay of Catholicism.  They also were supposed to pray with their students every day, and to attend Mass with them weekly.

One of the teachers claimed that she was dismissed because the school want to replace her with a younger person, suing under the Age Discrimination in Employment Act.  The other claimed she was forced out because of a disability, in violation of the ADA.  In both cases, the U.S. Court of Appeals for the 9th Circuit, reversing trial judges, found that these teachers could sue their schools for discrimination because they were not ministers.

The 9th Circuit looked to the Hosanna-Tabor ruling and found that unlike the teacher in that case, these teachers did not have extensive religious education, were not “called” to ministry or titled as ministers by their schools, and were essentially lay teachers whose time teaching religion was a small part of their duties.

Justice Samuel Alito, writing for the Supreme Court, said that the 9th Circuit had misinterpreted the Hosanna-Tabor case.  He rejected the idea that there was a checklist that could be mechanically applied to the question whether somebody is a “ministerial employee,” instead focusing on the religious mission of the Catholic School and the role the teacher plays in that mission.

“The religious education and formation of students is the very reason for the existence of most private religious schools,” wrote Alito, “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.”

In a concurring opinion, Justice Clarence Thomas (joined by Justice Neil Gorsuch) argued that the Court needn’t even probe into the details of the teachers’ employment, but instead should defer to a religious school’s determination whether their employees are excluded from coverage of anti-discrimination laws because of the ministerial exception.  However, the Court was not willing to go that far, and Justice Alito’s opinion made clear that how to classify an employee of a religious institution is a fact-specific determination that does require looking at the job duties of the employee.

In her dissenting opinion, Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, rejected Alito’s contention that the Court’s ruling was a faithful application of the Hosanna-Tabor precedent.  Although the Court had not explicitly adopted Justice Thomas’s “deference” approach, she charged that it had actually adopted Thomas’s approach when it classified these teachers as covered by the ministerial exception.  She wrote that “because the Court’s new standard prizes a functional importance that it appears to deem churches in the best position to explain, one cannot help but conclude that the Court has just traded legal analysis for a rubber stamp.”

To the dissenters, there was a world of difference between the teacher in Hosanna-Tabor and the teachers in this case, and they could see no good reason why church schools should be free to discriminate on the full list of grounds prohibited by anti-discrimination laws when the schools had no “theological” reason for discharging the teachers.

Federal anti-discrimination laws specifically allow religious schools to discriminate based on religion, but not based on such grounds as race or color, sex, national origin, age or disability, except for their “ministers,” as to whom traditionally the churches would have total freedom to decide whom to employ.  The Supreme Court long recognized churches’ freedom from government interference in employing “ministers.”  Hosanna-Tabor extended the concept from clergy to some religious teachers, but Sotomayor argued that this new decision takes that concept too far away from traditional religious leadership roles, taking protection against discrimination away from thousands of teachers.

The Court’s ruling may have an immediate adverse effect in lawsuits pending around the country by teachers who have been systematically fired by religious schools – almost entirely Catholic schools – after marrying their same-sex partners in the wake of the Obergefell decision five years ago.  By rejecting Justice Thomas’s “deference” approach, the Court leaves open the possibility that some of these discharged teachers might be able to prove that the “ministerial exception” does not apply to them, but, as Justice Sotomayor suggests, in most cases courts will have to dismiss their discrimination claims if their job had a religious component similar to the elementary school teachers, even if that was only a minor part of their role.

5th Circuit Tosses Challenge to Mississippi HB 1523 on Standing Grounds

Posted on: June 24th, 2017 by Art Leonard No Comments

A three-judge panel of the Houston-based U.S. Court of Appeals for the 5th Circuit dissolved a preliminary injunction and dismissed two lawsuits challenging the constitutionality of H.B. 1523, a Mississippi law enacted last year intended to assure that people who hold anti-gay or anti-transgender views cannot be subject to any adverse action from their state or local governments.  Barber v. Bryant, 2017 Westlaw 2702075, 2017 U.S. App. LEXIS 11116 (June 22, 2017).

U.S. District Judge Carlton Reeves, finding that the plaintiffs were likely to prevail on their claim that the law violated their equal protection rights as well as the constitutional prohibition on establishment of religion, issued a preliminary injunction last June 30, so the law, which was to become effective last July 1, has not gone into effect. Ruling on June 22, the panel found that none of the plaintiffs had standing to bring this challenge to the law because, in the court’s opinion, none had suffered an individualized injury that would give them the right to challenge the law.

The court was careful to state that because it did not have jurisdiction over the case, it was not expressing an opinion about whether the law was constitutional.

Plaintiffs’ attorneys from the two cases announced that they would seek “en banc” review by the full 5th Circuit bench and, failing that, would petition the Supreme Court.  The 5th Circuit is a notably conservative bench, however, with only four of the fourteen active judges having been appointed by Democratic presidents.  The three-judge panel that issued this decision consisted entirely of Republican appointees.

Section 2 of the law identifies three “religious beliefs or moral convictions” and states that people who act in accord with those beliefs or convictions are protected from “discriminatory” action by the state, such as adverse tax rulings, benefit eligibility, employment decisions, imposition of fines or denial of occupational licenses.  The “religious beliefs or moral convictions” are as follows:  “(a) Marriage is or should be recognized as the union of one man and one woman; (b) sexual relations are properly reserved to such a marriage; and (c) male (man) or female (woman) refers to an individual’s immutable biological sex as objectively determined by anatomy and genetics at time of birth.”

The statute provides further that people who claim to have suffered some adverse action because they act on these beliefs have a right to sue state officials, and to use this law as a defense if they are sued by individuals.

Making its effect more concrete, the statute specifically protects religious organizations that want to discriminate against LGBTQ people in employment, housing, child placement, and marriages, and protects parents who decide to “raise their foster or adoptive children in accordance” with one of the three listed beliefs. Businesses that provide wedding services are protected against liability for denying such services to LGBTQ people, as are medical and mental health care providers, except for emergency medical situations.  For example, a health care provider cannot interfere with visitation with a patient by their designated representative (who may be a same-sex partner or spouse).  State agencies that license professionals may not refuse to license somebody because they hold or articulate one of the listed beliefs.

The statute also specifically protects “any entity that establishes sex-specific standards for facilities such as locker rooms or restrooms,” and protects state employees who want to voice their beliefs as listed in the statute.  It also specifically allows county clerks and judges to refuse to deal with same-sex couples seeking to marry, so long as arrangements are made to allow such marriages to take place without delay.

To sum up, the statute clearly sought to exempt religious organizations and individuals from having to treat LGBTQ people as equal with everybody else, providing “special rights” to discriminate against LGBTQ people and same-sex couples.  Ironically, because Mississippi law does nothing to protect the civil rights of LGBTQ people, many of the applications of this statute are more symbolic than real, at least as far as state law goes.  A Mississippi landlord incurs no state law penalty for refusing to rent a dwelling place to a same-sex couple, for example, and businesses in Mississippi are free to deny goods or services to people who are gay or transgender without incurring any state law penalty.  Few local governments in Mississippi have adopted laws that would be affected, although some educational institutions would clearly be affected, especially by the facilities access provision.

The problem for the plaintiffs, in the eyes of the court of appeals, was that the judges could not see that any of the plaintiffs have the kind of particularized injury to give them standing to sue the state in federal court when this law had not even begun to operate.  The plaintiffs had relied heavily on the argument that the law imposed a stigma, signaling second-class citizenship, and sought to enshrine by statute particular religious views, but the court rejected these arguments as insufficient.

The plaintiffs pointed to cases in which courts had ruled that plaintiffs offended by government-sponsored religious displays had been allowed to challenge them under the 1st Amendment in federal court, but Judge Jerry E. Smith, writing for the panel, rejected this analogy.  The court also rejected taxpayer standing, finding that H.B. 1523 did not authorize expenditures in support of religion.  The court found that by protecting both “religious beliefs and moral convictions,” the legislature had avoided privileging religion, since persons whose anti-gay beliefs were not religiously motivated would be protected from adverse government treatment under this act.  An atheist who believes same-sex marriage is wrong or that sex is immutable would be protected, even if these beliefs had no religious basis.

One plaintiff who based his standing on his intention to marry in the future was rejected by the court, which pointed out that he did not specify when or where he intended to marry.  “He does not allege that he was seeking wedding-related services from a business that would deny him or that he was seeking a marriage license or solemnization from a clerk or judge who would refuse to be involved in such a ceremony, or even that he intended to get married in Mississippi,” wrote Judge Smith.

The court made clear that if anybody actually suffers a concrete injury after the law goes into effect, they could file a new lawsuit and raise their challenge.