There is an admirable concession to Catholic Church authority in the Supreme Court’s July 8 ruling on the “ministerial exception” for Catholic schools.
Justice Samuel Alito, in his majority opinion for Our Lady of Guadalupe School v. Agnes Morrissey-Berru, defers to the authority of the Catechism and the Church’s canon law with regard to Catholic education.
In Guadalupe, the Court ruled that two Catholic school teachers, despite teaching secular subjects in addition to religion, are “ministers” of the Catholic faith whose employment is a religious matter that lies outside the jurisdiction of secular courts.
To justify this finding, Alito turns to the Catholic Church’s own requirements for Catholic school teachers:
In the Catholic tradition, religious education is ‘intimately bound up with the whole of the Church’s life.’ Catechism of the Catholic Church 8 (2d ed. 2016). Under canon law, local bishops must satisfy themselves that ‘those who are designated teachers of religious instruction in schools … are outstanding in correct doctrine, the witness of a Christian life, and teaching skill.’ Code of Canon Law, Canon 804, §2 (Eng. transl. 1998).
In other words, because Catholic school teachers must be faithful to Catholic teaching and witnesses to the Catholic faith by both word and example, their employment depends on criteria that only religious school leaders or church leaders can properly judge.
It would have been helpful if Alito also cited Canon 803, which applies to every teacher in a Catholic school — not only those who teach designated religion courses. It says much the same thing, which may support arguments that all Catholic school teachers should fall within the ministerial exception:
The instruction and education in a Catholic school must be grounded in the principles of Catholic doctrine; teachers are to be outstanding in correct doctrine and integrity of life. (Canon 803, §2)
Likewise Canon 810, regarding Catholic higher education, calls for professors “who besides their scientific and pedagogical qualifications are outstanding in integrity of doctrine and probity of life.”
The Court’s willingness to respect religious authority over religious activities is fundamental to the First Amendment. Alito wrote:
In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.
Such deference was the core principles of the three-part test for applying the ministerial exception that was proposed to the Court in an amicus brief filed in February. It was authored by the outstanding attorneys of Alliance Defending Freedom and Troutman Sanders LLP on behalf of The Cardinal Newman Society, the Association of Classical Christian Schools, the Association for Biblical Higher Education, and William Jessup University. The brief argued:
(1) a “minister” is an employee who performs “religious functions”;
(2) the functions that the minister actually performs should be proven with evidence from the religious organization such as written organizational bylaws, position descriptions, and other such competent evidence; and
(3) the court should determine which functions are, in fact, “religious” by deferring to the religious organization’s own good-faith understanding of its own religion.
The Guadalupe ruling largely adopts these principles and offers additional clarity to religious employers. The Court relies on Catholic schools’ definition of an employee’s ministerial duties, as long as the employer shows “good faith” in seeking the protection of the ministerial exception.
What constitutes “bad faith” is something that will likely be litigated in future cases. One thinks of the many Catholic schools and colleges that have greatly secularized, yet claim religious freedom whenever it is convenient. If there is reasonable doubt about the religious identity of an employer or its sincerity about an employee’s religious duties — challenged by evidence that the employee does not in fact do what is stated in a position description or other employment document — then courts might restrict application of the ministerial exception.
The amicus brief cites the 1971 case Tilton v. Richardson, in which four Catholic universities were found to provide a primarily “secular education,” because religion did not “permeate” the coursework and was not promoted to students. For 27 years, the Newman Society has urged such institutions to strengthen their Catholic identity, and now their ability to claim the ministerial exception may depend on it.
Some schools need not apply
The Court’s ruling rests on whether an employee is a “teacher of religion” and therefore a minister of the faith.
This should be relatively easy for a faithful Catholic school or college, where the Catholic faith enters into all studies and teachers are required to be strong witnesses to the faith. It may even be possible to apply the ministerial exception to non-teachers — including school administrators, coaches, guidance counselors and support staff — if they are also expected teach religion by their words and witness, while advancing the Church’s mission of evangelization through Catholic education.
However, the ministerial exception further separates weak Catholic schools and colleges from faithful Catholic education. Only schools and colleges that intentionally form students in the faith are likely to gain broad protection from employment lawsuits. Secularized schools are more vulnerable than ever, if they fail to require teachers to catechize and uphold Catholic teaching.
Ultimately it is unlikely that any Catholic school or college will be entirely protected from the Supreme Court’s Bostock ruling and state laws adding homosexuality and gender identity to nondiscrimination provisions. The lawsuits, government coercion and social pressure to compromise the faith are only increasing the threats to Catholic education.
As before, the best protection for Catholic education is to be faithfully, thoroughly and consistently Catholic and to ensure that all school or college policies are firmly tied to Catholic teaching. In this way, a school or college is prepared to go to court to claim its natural and First Amendment rights.
This article first appeared at The National Catholic Register.