Our Lady of Guadalupe School v. Morrissey-Berru , 207 L. Ed. 2d 870 ( 2020 )

(Slip Opinion) OCTOBER TERM, 2019 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
OUR LADY OF GUADALUPE SCHOOL v. MORRISSEY-
BERRU
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 19–267. Argued May 11, 2020—Decided July 8, 2020*
The First Amendment protects the right of religious institutions “to de-
cide for themselves, free from state interference, matters of church
government as well as those of faith and doctrine.” Kedroff v. Saint
Nicholas Cathedral of Russian Orthodox Church in North America,
344 U. S. 94, 116. Applying this principle, this Court held in Hosanna-
Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S.
171, that the First Amendment barred a court from entertaining an
employment discrimination claim brought by an elementary school
teacher, Cheryl Perich, against the religious school where she taught.
Adopting the so-called “ministerial exception” to laws governing the
employment relationship between a religious institution and certain
key employees, the Court found relevant Perich’s title as a “Minister
of Religion, Commissioned,” her educational training, and her respon-
sibility to teach religion and participate with students in religious ac-
tivities. Id., at 190–191.
In these cases, two elementary school teachers at Roman Catholic
schools in the Archdiocese of Los Angeles had teaching responsibilities
similar to Perich’s. Agnes Morrissey-Berru taught at Our Lady of Gua-
dalupe School (OLG), and Kristen Biel taught at St. James School.
Both were employed under nearly identical agreements that set out
the schools’ mission to develop and promote a Catholic School faith
community; imposed commitments regarding religious instruction,
worship, and personal modeling of the faith; and explained that teach-
ers’ performance would be reviewed on those bases. Each was also
——————
* Together with No. 19–348, St. James School v. Biel, as Personal Rep-
resentative of the Estate of Biel, on certiorari to the same Court.
2 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Syllabus
required to comply with her school’s faculty handbook, which set out
similar expectations. Each taught religion in the classroom, wor-
shipped with her students, prayed with her students, and had her per-
formance measured on religious bases.
Both teachers sued their schools after their employment was termi-
nated. Morrissey-Berru claimed that OLG had demoted her and had
failed to renew her contract in order to replace her with a younger
teacher in violation of the Age Discrimination in Employment Act of
1967. OLG invoked Hosanna-Tabor’s “ministerial exception” and suc-
cessfully moved for summary judgment, but the Ninth Circuit re-
versed, holding that Morrissey-Berru did not fall within the exception
because she did not have the formal title of “minister,” had limited for-
mal religious training, and did not hold herself out publicly as a reli-
gious leader. Biel alleged that St. James discharged her because she
had requested a leave of absence to obtain breast cancer treatment.
Like OLG, St. James obtained summary judgment under the “minis-
terial exception.” But the Ninth Circuit reversed, reasoning that Biel
lacked Perich’s credentials, religious training, and ministerial back-
ground.
Held: The First Amendment’s Religion Clauses foreclose the adjudica-
tion of Morrissey-Berru’s and Biel’s employment-discrimination
claims. Pp. 10–27.
(a) The independence of religious institutions in matters of “faith
and doctrine” is closely linked to independence in what the Court has
termed “ ‘matters of church government.’ ” Hosanna-Tabor, 565 U. S.,
at 186. For this reason, courts are bound to stay out of employment
disputes involving those holding certain important positions with
churches and other religious institutions. Pp. 10–11.
(b) When the “ministerial exception” reached this Court in Hosanna-
Tabor, the Court looked to precedent and the “background” against
which “the First Amendment was adopted,” 565 U. S., at 183, and
unanimously recognized that the Religion Clauses foreclose certain
employment-discrimination claims brought against religious organiza-
tions, id., at 188. Pp. 11–14.
(c) In Hosanna-Tabor, the Court applied the “ministerial exception”
but declined “to adopt a rigid formula for deciding when an employee
qualifies as a minister.” 565 U. S., at 190. Instead, the Court identi-
fied four relevant circumstances of Perich’s employment at an Evan-
gelical Lutheran school. First, Perich’s church had given her the title
of “minister, with a role distinct from that of most of its members.” Id.,
at 191. Second, her position “reflected a significant degree of religious
training followed by a formal process of commissioning.” Ibid. Third,
she “held herself out as a minister of the Church” and claimed certain
tax benefits. Id., at 191–192. Fourth, her “job duties reflected a role
Cite as: 591 U. S. ____ (2020) 3
Syllabus
in conveying the Church’s message and carrying out its mission.” Id.,
at 192. Pp. 14–16.
(d) A variety of factors may be important in determining whether a
particular position falls within the ministerial exception. The circum-
stances that informed the Court’s decision in Hosanna-Tabor were rel-
evant because of their relationship to Perich’s “role in conveying the
Church’s message and carrying out its mission.” 565 U. S., at 192. But
the recognition of the significance of those factors in Perich’s case did
not mean that they must be met in all other cases. What matters is
what an employee does. Implicit in the Hosanna-Tabor decision was
a recognition that 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 a private religious school’s mission. Pp. 16–21.
(e) Applying this understanding of the Religion Clauses here, it is
apparent that Morrissey-Berru and Biel qualify for the exception rec-
ognized in Hosanna-Tabor. There is abundant record evidence that
they both performed vital religious duties, such as educating their stu-
dents in the Catholic faith and guiding their students to live their lives
in accordance with that faith. Their titles did not include the term
“minister” and they had less formal religious training than Perich, but
their core responsibilities were essentially the same. And their schools
expressly saw them as playing a vital role in carrying out the church’s
mission. A religious institution’s explanation of the role of its employ-
ees in the life of the religion in question is important. Pp. 21–22.
(f) The Ninth Circuit mistakenly treated the circumstances the
Court found relevant in Hosanna-Tabor as a checklist of items to be
assessed and weighed against each other. That rigid test produced a
distorted analysis. First, it invested undue significance in the fact that
Morrissey-Berru and Biel did not have clerical titles. Second, it as-
signed too much weight to the fact that Morrissey-Berru and Biel had
less formal religious schooling that Perich. Third, the St. James panel
inappropriately diminished the significance of Biel’s duties. Respond-
ents would make Hosanna-Tabor’s governing test even more rigid.
And they go further astray in suggesting that an employee can never
come within the Hosanna-Tabor exception unless the employee is a
“practicing” member of the religion with which the employer is associ-
ated. Deciding such questions risks judicial entanglement in religious
issues. Pp. 22–27.
No. 19–267, 769 Fed. Appx. 460; No. 19–348, 911 F. 3d 603, reversed and
remanded.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and THOMAS, BREYER, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined.
4 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Syllabus
THOMAS, J., filed a concurring opinion, in which GORSUCH, J., joined. SO-
TOMAYOR, J., filed a dissenting opinion, in which GINSBURG, J., joined.
Cite as: 591 U. S. ____ (2020) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–267 and 19–348
_________________
OUR LADY OF GUADALUPE SCHOOL, PETITIONER
19–267 v.
AGNES MORRISSEY-BERRU
ST. JAMES SCHOOL, PETITIONER
19–348 v.
DARRYL BIEL, AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF KRISTEN BIEL
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 8, 2020]
JUSTICE ALITO delivered the opinion of the Court.
These cases require us to decide whether the First
Amendment permits courts to intervene in employment dis-
putes involving teachers at religious schools who are en-
trusted with the responsibility of instructing their students
in the faith. The First Amendment protects the right of re-
ligious institutions “to decide for themselves, free from
state interference, matters of church government as well as
those of faith and doctrine.” Kedroff v. Saint Nicholas Ca-
thedral of Russian Orthodox Church in North America, 344
U. S. 94, 116 (1952). Applying this principle, we held in Ho-
sanna-Tabor Evangelical Lutheran Church and School v.
EEOC, 565 U. S. 171 (2012), that the First Amendment
barred a court from entertaining an employment discrimi-
nation claim brought by an elementary school teacher,
2 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
Cheryl Perich, against the religious school where she
taught. Our decision built on a line of lower court cases
adopting what was dubbed the “ministerial exception” to
laws governing the employment relationship between a re-
ligious institution and certain key employees. We did not
announce “a rigid formula” for determining whether an em-
ployee falls within this exception, but we identified circum-
stances that we found relevant in that case, including
Perich’s title as a “Minister of Religion, Commissioned,” her
educational training, and her responsibility to teach reli-
gion and participate with students in religious activities.
Id., at 190–191.
In the cases now before us, we consider employment dis-
crimination claims brought by two elementary school teach-
ers at Catholic schools whose teaching responsibilities are
similar to Perich’s. Although these teachers were not given
the title of “minister” and have less religious training than
Perich, we hold that their cases fall within the same rule
that dictated our decision in Hosanna-Tabor. The religious
education and formation of students is the very reason for
the existence of most private religious schools, and there-
fore 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.
I
A
1
The first of the two cases we now decide involves Agnes
Morrissey-Berru, who was employed at Our Lady of Guada-
lupe School (OLG), a Roman Catholic primary school in the
Archdiocese of Los Angeles. Excerpts of Record (ER) 58 in
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Opinion of the Court
No. 17–56624 (CA9) (OLG).1 For many years, Morrissey-
Berru was employed at OLG as a lay fifth or sixth grade
teacher. Like most elementary school teachers, she taught
all subjects, and since OLG is a Catholic school, the curric-
ulum included religion. App. 23, 75. As a result, she was
her students’ religion teacher.
Morrissey-Berru earned a B. A. in English Language
Arts, with a minor in secondary education, and she holds a
California teaching credential. Id., at 21–22. While on the
faculty at OLG, she took religious education courses at the
school’s request, ER 41–ER 42, ER 44–ER 45, ER 276, and
was expected to attend faculty prayer services, App. to Pet.
for Cert. in No. 19–267, p. 87a.2
——————
1 A major theme of the dissent is that we do not heed the rule that, in
deciding whether summary judgment is proper, a court must view the
facts in the light most favorable to the party against whom summary
judgment is sought. See post, at 1–2, 8, 10–11, 14 (opinion of SOTOMAYOR,
J.). But the dissent, which approves of the Ninth Circuit’s reasoning,
seems to forget that the Ninth Circuit in effect granted summary judg-
ment in favor of the teachers on the issue of the applicability of the so-
called ministerial exception. It did not remand for a trial on that issue
but instead held that the exception did not apply. 769 Fed. Appx. 460,
460–461 (2019); 911 F. 3d 603, 605, 611, n. 6 (2018). Therefore, if any
material facts were genuinely in dispute, the relevant parts of the record
would have to be viewed in the light most favorable to the schools. The
dissent, however, does exactly the opposite.
In any event, the dissent’s comments about summary judgment are so
much smoke. It does not identify any disputed fact that is essential to
our holding, and, although there are differences of opinion on certain
facts, neither party takes the position that any material fact is genuinely
in dispute.
2 After bringing suit, Morrissey-Berru filed a declaration stating that
she is “not currently a practicing Catholic.” ER 248. It is unclear what
Morrissey-Berru means by “practicing.” There is, however, no hint in the
record that Morrissey-Berru considered herself a non-practicing Catholic
during her employment at OLG. See infra, at 5 (describing religious ob-
servation).
4 OUR LADY OF GUADALUPE SCHOOL v.
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Opinion of the Court
Each year, Morrissey-Berru and OLG entered into an em-
ployment agreement, App. 21,3 that set out the school’s
“mission” and Morrissey-Berru’s duties. See, e.g., id., at
154–164.4 The agreement stated that the school’s mission
was “to develop and promote a Catholic School Faith Com-
munity,” id., at 154, and it informed Morrissey-Berru that
“[a]ll [her] duties and responsibilities as a Teache[r were to]
be performed within this overriding commitment.” Ibid.
The agreement explained that the school’s hiring and re-
tention decisions would be guided by its Catholic mission,
and the agreement made clear that teachers were expected
to “model and promote” Catholic “faith and morals.” Id., at
155. Under the agreement, Morrissey-Berru was required
to participate in “[s]chool liturgical activities, as requested,”
ibid., and the agreement specified that she could be termi-
nated “for ‘cause’ ” for failing to carry out these duties or for
“conduct that brings discredit upon the School or the Ro-
man Catholic Church.” Id., at 155–157. The agreement re-
quired compliance with the faculty handbook, which sets
out similar expectations. Id., at 156; App. to Pet. for Cert.
in No. 19–267, at 52a–55a. The pastor of the parish, a Cath-
olic priest, had to approve Morrissey-Berru’s hiring each
year. Id., at 14a; see also App. 164.
Like all teachers in the Archdiocese of Los Angeles,
Morrissey-Berru was “considered a catechist,” i.e., “a
teacher of religio[n].” App. to Pet. for Cert. in No. 19–267,
at 56a, 60a. Catechists are “responsible for the faith for-
mation of the students in their charge each day.” Id., at
——————
3 This appears to have been a standard contract used within the Arch-
diocese of Los Angeles. See App. 154; cf. id., at 230.
4 It is not entirely clear from the record whether teachers at OLG must
be Catholic. Id., at 113 (“ [Q.] ‘Is it a requirement that a teacher be Cath-
olic in order to teach at OLG School? Yes or no?’ [A.] Yes”); but see ibid.
(“Exceptions can be made”); id., at 154 (“If you are Roman Catholic[,] you
must be in good standing with the Church” (emphasis added)). But it is
clearly preferred. Id., at 110.
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Opinion of the Court
56a. Morrissey-Berru provided religious instruction every
day using a textbook designed for use in teaching religion
to young Catholic students. Id., at 45a–51a, 90a–92a; see
App. 79–80. Under the prescribed curriculum, she was ex-
pected to teach students, among other things, “to learn and
express belief that Jesus is the son of God and the Word
made flesh”; to “identify the ways” the church “carries on
the mission of Jesus”; to “locate, read and understand sto-
ries from the Bible”; to “know the names, meanings, signs
and symbols of each of the seven sacraments”; and to be
able to “explain the communion of saints.” App. to Pet. for
Cert. in No. 19–267, at 91a–92a. She tested her students
on that curriculum in a yearly exam. Id., at 87a. She also
directed and produced an annual passion play. Id., at 26a.
Morrissey-Berru prepared her students for participation
in the Mass and for communion and confession. Id., at 68a,
81a, 88a–89a. She also occasionally selected and prepared
students to read at Mass. Id., at 83a, 89a. And she was
expected to take her students to Mass once a week and on
certain feast days (such as the Feast Day of St. Juan Diego,
All Saints Day, and the Feast of Our Lady), and to take
them to confession and to pray the Stations of the Cross.
Id., at 68a–69a, 83a, 88a. Each year, she brought them to
the Catholic Cathedral in Los Angeles, where they partici-
pated as altar servers. Id., at 95a–96a. This visit, she ex-
plained, was “an important experience” because “[i]t is a big
honor” for children to “serve the altar” at the cathedral. Id.,
at 96a.
Morrissey-Berru also prayed with her students. Her
class began or ended every day with a Hail Mary. Id., at
87a. She led the students in prayer at other times, such as
when a family member was ill. Id., at 21a, 81a, 86a–87a.
And she taught them to recite the Apostle’s Creed and the
Nicene Creed, as well as prayers for specific purposes, such
as in connection with the sacrament of confession. Id., at
20a–21a, 92a.
6 OUR LADY OF GUADALUPE SCHOOL v.
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Opinion of the Court
The school reviewed Morrissey-Berru’s performance un-
der religious standards. The “ ‘Classroom Observation Re-
port’ ” evaluated whether Catholic values were “infused
through all subject areas” and whether there were religious
signs and displays in the classroom. Id., at 94a, 95a; App.
59. Morrissey-Berru testified that she tried to instruct her
students “in a manner consistent with the teachings of the
Church,” App. to Pet. for Cert. in No. 19–267, at 96a, and
she said that she was “committed to teaching children
Catholic values” and providing a “faith-based education.”
Id., at 82a. And the school principal confirmed that
Morrissey-Berru was expected to do these things.5
2
In 2014, OLG asked Morrissey-Berru to move from a full-
time to a part-time position, and the next year, the school
declined to renew her contract. She filed a claim with the
Equal Employment Opportunity Commission (EEOC), re-
ceived a right-to-sue letter, App. 169, and then filed suit un-
der the Age Discrimination in Employment Act of 1967, 81
Stat. 602, as amended, 29 U. S. C. §621 et seq., claiming
that the school had demoted her and had failed to renew
her contract so that it could replace her with a younger
teacher. App. 168–169. The school maintains that it based
its decisions on classroom performance—specifically,
Morrissey-Berru’s difficulty in administering a new reading
and writing program, which had been introduced by the
school’s new principal as part of an effort to maintain ac-
creditation and improve the school’s academic program.
App. to Pet. for Cert. in No. 19–267, at 66a–67a, 70a, 73a.
Invoking the “ministerial exception” that we recognized
in Hosanna-Tabor, OLG successfully moved for summary
judgment, but the Ninth Circuit reversed in a brief opinion.
769 Fed. Appx. 460, 461 (2019). The court acknowledged
——————
5 Record in No. 2:16–CV–09353 (CD Cal.), Doc. 33, ¶9.
Cite as: 591 U. S. ____ (2020) 7
Opinion of the Court
that Morrissey-Berru had “significant religious responsibil-
ities” but reasoned that “an employee’s duties alone are not
dispositive under Hosanna-Tabor’s framework.” Ibid. Un-
like Perich, the court noted, Morrissey-Berru did not have
the formal title of “minister,” had limited formal religious
training, and “did not hold herself out to the public as a re-
ligious leader or minister.” Ibid. In the court’s view, these
“factors” outweighed the fact that she was invested with
significant religious responsibilities. Ibid. The court there-
fore held that Morrissey-Berru did not fall within the “min-
isterial exception.” OLG filed a petition for certiorari, and
we granted review.
B
1
The second case concerns the late Kristen Biel, who
worked for about a year and a half as a lay teacher at St.
James School, another Catholic primary school in Los An-
geles. For part of one academic year, Biel served as a long-
term substitute teacher for a first grade class, and for one
full year she was a full-time fifth grade teacher. App. 336–
337. Like Morrissey-Berru, she taught all subjects, includ-
ing religion. Id., at 288; ER 588 in No. 17–55180 (CA9) (St.
James).6
Biel had a B. A. in liberal studies and a teaching creden-
tial. App. 244. During her time at St. James, she attended
a religious conference that imparted “[d]ifferent techniques
on teaching and incorporating God” into the classroom. Id.,
at 260–262. Biel was Catholic.7
Biel’s employment agreement was in pertinent part
nearly identical to Morrissey-Berru’s. Compare id., at 154–
——————
6 Biel died during the pendency of this suit, which has subsequently
been litigated by her husband as representative of her estate. Record in
No. 17–55180 (CA9), Docs. 112, 113.
7 The school principal stated that she prefers that teachers at the
school be Catholic. ER 32 (St. James).
8 OUR LADY OF GUADALUPE SCHOOL v.
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Opinion of the Court
164, with id., at 320–329. The agreement set out the same
religious mission; required teachers to serve that mission;
imposed commitments regarding religious instruction, wor-
ship, and personal modeling of the faith; and explained that
teachers’ performance would be reviewed on those bases.
Biel’s agreement also required compliance with the St.
James faculty handbook, which resembles the OLG hand-
book. Id., at 322. Compare ER 641–ER 651 (OLG) with ER
565–ER 597 (St. James). The St. James handbook defines
“religious development” as the school’s first goal and pro-
vides that teachers must “mode[l] the faith life,” “exem-
plif[y] the teachings of Jesus Christ,” “integrat[e] Catholic
thought and principles into secular subjects,” and
“prepar[e] students to receive the sacraments.” Id., at
ER 570–ER 572. The school principal confirmed these
expectations.8
Like Morrissey-Berru, Biel instructed her students in the
tenets of Catholicism. She was required to teach religion
for 200 minutes each week, App. 257–258, and adminis-
tered a test on religion every week, id., at 256–257. She
used a religion textbook selected by the school’s principal, a
Catholic nun. Id., at 255; ER 37 (St. James). The religious
curriculum covered “the norms and doctrines of the Catho-
lic Faith, including . . . the sacraments of the Catholic
Church, social teachings according to the Catholic Church,
morality, the history of Catholic saints, [and] Catholic pray-
ers.” App. to Pet. for Cert. in No. 19–348, p. 83a.
Biel worshipped with her students. At St. James, teach-
ers are responsible for “prepar[ing] their students to be ac-
tive participants at Mass, with particular emphasis on
Mass responses,” ER 587, and Biel taught her students
about “Catholic practices like the Eucharist and confes-
sion,” id., at ER 226–ER 227. At monthly Masses, she
prayed with her students. App. to Pet. for Cert. in No. 19–
——————
8 Record in No. 2:15–CV–04248 (CD Cal.), Doc. 67–1, ¶¶4–7.
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Opinion of the Court
348, at 82a, 94a–96a. Her students participated in the lit-
urgy on some occasions by presenting the gifts (bringing
bread and wine to the priest). Ibid.
Teachers at St. James were “required to pray with their
students every day,” id., at 80a–81a, 110a, and Biel ob-
served this requirement by opening and closing each school
day with prayer, including the Lord’s Prayer or a Hail
Mary, id., at 81a–82a, 93a, 110a.
As at OLG, teachers at St. James are evaluated on their
fulfillment of the school’s religious mission. Id., at 83a–84a.
St. James used the same classroom observation standards
as OLG and thus examined whether teachers “infus[ed]”
Catholic values in all their teaching and included religious
displays in their classrooms. Id., at 83a–84a, 92a. The
school’s principal, a Catholic nun, evaluated Biel on these
measures. Id., at 106a.
2
St. James declined to renew Biel’s contract after one full
year at the school. She filed charges with the EEOC, and
after receiving a right-to-sue letter, brought this suit, alleg-
ing that she was discharged because she had requested a
leave of absence to obtain treatment for breast cancer. App.
337–338. The school maintains that the decision was based
on poor performance—namely, a failure to observe the
planned curriculum and keep an orderly classroom. See id.,
at 303; App. to Pet. for Cert. in No. 19–348, at 85a–89a,
114a–115a, 120a–121a.
Like OLG, St. James obtained summary judgment under
the ministerial exception, id., at 74a, but a divided panel of
the Ninth Circuit reversed, reasoning that Biel lacked
Perich’s “credentials, training, [and] ministerial back-
ground,” 911 F. 3d 603, 608 (2018).
Judge D. Michael Fisher, sitting by designation, dis-
sented. Considering the totality of the circumstances, he
10 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
would have held that the ministerial exception applied “be-
cause of the substance reflected in [Biel’s] title and the im-
portant religious functions she performed” as a “stewar[d]
of the Catholic faith to the children in her class.” Id., at
621, 622.
An unsuccessful petition for rehearing en banc ensued.
Judge Ryan D. Nelson, joined by eight other judges, dis-
sented. 926 F. 3d 1238, 1239 (2019). Judge Nelson faulted
the panel majority for “embrac[ing] the narrowest construc-
tion” of the ministerial exception, departing from “the con-
sensus of our sister circuits that the employee’s ministerial
function should be the key focus,” and demanding nothing
less than a “carbon copy” of the specific facts in Hosanna-
Tabor. Ibid. We granted review and consolidated the case
with OLG’s. 589 U. S. ___ (2019).
II
A
The First Amendment provides that “Congress shall
make no law respecting an establishment of religion, or pro-
hibiting the free exercise thereof.” Among other things, the
Religion Clauses protect the right of churches and other re-
ligious institutions to decide matters “ ‘of faith and doc-
trine’ ” without government intrusion. Hosanna-Tabor, 565
U. S., at 186 (quoting Kedroff, 344 U. S., at 116). State in-
terference in that sphere would obviously violate the free
exercise of religion, and any attempt by government to dic-
tate or even to influence such matters would constitute one
of the central attributes of an establishment of religion.
The First Amendment outlaws such intrusion.
The independence of religious institutions in matters of
“faith and doctrine” is closely linked to independence in
what we have termed “ ‘matters of church government.’ ”
565 U. S., at 186. This does not mean that religious insti-
tutions enjoy a general immunity from secular laws, but it
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Opinion of the Court
does protect their autonomy with respect to internal man-
agement decisions that are essential to the institution’s
central mission. And a component of this autonomy is the
selection of the individuals who play certain key roles.
The “ministerial exception” was based on this insight.
Under this rule, courts are bound to stay out of employment
disputes involving those holding certain important posi-
tions with churches and other religious institutions. The
rule appears to have acquired the label “ministerial excep-
tion” because the individuals involved in pioneering cases
were described as “ministers.” See McClure v. Salvation
Army, 460 F. 2d 553, 558–559 (CA5 1972); Rayburn v. Gen-
eral Conference of Seventh-day Adventists, 772 F. 2d 1164,
1168 (CA4 1985). Not all pre-Hosanna-Tabor decisions ap-
plying the exception involved “ministers” or even members
of the clergy. See, e.g., EEOC v. Southwestern Baptist The-
ological Seminary, 651 F. 2d 277, 283–284 (CA5 1981);
EEOC v. Roman Catholic Diocese of Raleigh, N. C., 213
F. 3d 795, 800–801 (CA4 2000). But it is instructive to con-
sider why a church’s independence on matters “of faith and
doctrine” requires the authority to select, supervise, and if
necessary, remove a minister without interference by secu-
lar authorities. Without that power, a wayward minister’s
preaching, teaching, and counseling could contradict the
church’s tenets and lead the congregation away from the
faith.9 The ministerial exception was recognized to pre-
serve a church’s independent authority in such matters.
B
When the so-called ministerial exception finally reached
this Court in Hosanna-Tabor, we unanimously recognized
——————
9 Cf. McConnell, Establishment and Disestablishment at the Found-
ing, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2141
(2003) (politically appointed ministers in colonial Virginia were, in the
view of the faithful, often “less than zealous in their spiritual responsi-
bilities and less than irreproachable in their personal morals”).
12 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
that the Religion Clauses foreclose certain employment dis-
crimination claims brought against religious organizations.
565 U. S., at 188. The constitutional foundation for our
holding was the general principle of church autonomy to
which we have already referred: independence in matters
of faith and doctrine and in closely linked matters of inter-
nal government. The three prior decisions on which we pri-
marily relied drew on this broad principle, and none was
exclusively concerned with the selection or supervision of
clergy. Watson v. Jones, 13 Wall. 679 (1872), involved a dis-
pute about the control of church property, and both Kedroff,
344 U. S. 94, and Serbian Eastern Orthodox Diocese for
United States and Canada v. Milivojevich, 426 U. S. 696(1976), also concerned the control of property, as well as the
appointment and authority of bishops.
In addition to these precedents, we looked to the “back-
ground” against which “the First Amendment was
adopted.” Hosanna-Tabor, 565 U. S., at 183. We noted that
16th-century British statutes had given the Crown the
power to fill high “religious offices” and to control the exer-
cise of religion in other ways, and we explained that the
founding generation sought to prevent a repetition of these
practices in our country. Ibid. Because Cheryl Perich, the
teacher in Hosanna-Tabor, had a title that included the
word “minister,” we naturally concentrated on historical
events involving clerical offices, but the abuses we identi-
fied were not limited to the control of appointments.
We pointed to the various Acts of Uniformity, id., at 182,
which dictated what ministers could preach and imposed
penalties for non-compliance. Under the 1549 Act, a minis-
ter who “preach[ed,] declare[d,] or [spoke] any thing” in der-
ogation of any part of the Book of Common Prayer could be
sentenced to six months in jail for a first offense and life
imprisonment for a third violation. Act of Uniformity, 2 &
3 Edw. 6, ch. 1. In addition, all other English subjects were
forbidden to say anything against the Book of Common
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Opinion of the Court
Prayer in “[i]nterludes[,] play[s,] song[s,] r[h]ymes, or by
other open [w]ord[s].” Ibid. A 1559 law contained similar
prohibitions. See Act of Uniformity, 1 Eliz., ch. 2.
After the Restoration, Parliament enacted a new law with
a similar aim. Ministers and “Lecturer[s]” were required to
pledge “unfeigned assent and consent” to the Book of Com-
mon Prayer, and all schoolmasters, private tutors, and uni-
versity professors were required to “conforme to the Liturgy
of the Church of England” and not “to endeavour any
change or alteration” of the church. Act of Uniformity,
1662, 14 Car. 2, ch. 4.
British law continued to impose religious restrictions on
education in the 18th century and past the time of the adop-
tion of the First Amendment. The Schism or Established
Church Act of 1714, 13 Ann., ch. 7, required that schoolmas-
ters and tutors be licensed by a bishop. Non-conforming
Protestants, as well as Catholics and Jews, could not teach
at or attend the two universities, and as Blackstone wrote,
“[p]ersons professing the popish religion [could] not keep or
teach any school under pain of perpetual imprisonment.” 4
W. Blackstone, Commentaries on the Laws of England 55
(8th ed. 1778). The law also imposed penalties on “any per-
son [who] sen[t] another abroad to be educated in the popish
religion . . . or [who] contribute[d] to their maintenance
when there.” Id., at 55–56.
British colonies in North America similarly controlled
both the appointment of clergy, see Hosanna-Tabor, 565
U. S., at 183, and the teaching of students. A Maryland law
“prohibited any Catholic priest or lay person from keeping
school, or taking upon himself the education of youth.” 2 T.
Hughes, History of the Society of Jesus in North America:
Colonial and Federal 443–444 (1917). In 1771, the Gover-
nor of New York was instructed to require that all school-
masters arriving from England obtain a license from the
Bishop of London. 3 C. Lincoln, The Constitutional History
of New York 485, 745 (1906). New York law also required
14 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
an oath and license for any “ ‘vagrant Preacher, Moravian,
or disguised Papist’ ” to “ ‘Preach or Teach, Either in Public
or Private.’ ” S. Cobb, The Rise of Religious Liberty in
America 358 (1902).
C
In Hosanna-Tabor, Cheryl Perich, a kindergarten and
fourth grade teacher at an Evangelical Lutheran school,
filed suit in federal court, claiming that she had been dis-
charged because of a disability, in violation of the Ameri-
cans with Disabilities Act of 1990 (ADA), 42 U. S. C.
§12112(a). The school responded that the real reason for
her dismissal was her violation of the Lutheran doctrine
that disputes should be resolved internally and not by going
to outside authorities. We held that her suit was barred by
the “ministerial exception” and noted that it “concern[ed]
government interference with an internal church decision
that affects the faith and mission of the church.” 565 U. S.,
at 190. We declined “to adopt a rigid formula for deciding
when an employee qualifies as a minister,” and we added
that it was “enough for us to conclude, in this our first case
involving the ministerial exception, that the exception co-
vers Perich, given all the circumstances of her employ-
ment.” Id., at 190–191. We identified four relevant circum-
stances but did not highlight any as essential.
First, we noted that her church had given Perich the title
of “minister, with a role distinct from that of most of its
members.” Id., at 191. Although she was not a minister in
the usual sense of the term—she was not a pastor or deacon,
did not lead a congregation, and did not regularly conduct
religious services—she was classified as a “called” teacher,
as opposed to a lay teacher, and after completing certain
academic requirements, was given the formal title “ ‘Minis-
ter of Religion, Commissioned.’ ” Id., at 177–178, 191.
Second, Perich’s position “reflected a significant degree of
Cite as: 591 U. S. ____ (2020) 15
Opinion of the Court
religious training followed by a formal process of commis-
sioning.” Id., at 191.
Third, “Perich held herself out as a minister of the
Church by accepting the formal call to religious service, ac-
cording to its terms,” and by claiming certain tax benefits.
Id., at 191–192.
Fourth, “Perich’s job duties reflected a role in conveying
the Church’s message and carrying out its mission.” Id., at
192. The church charged her with “ ‘lead[ing] others toward
Christian maturity’ ” and “ ‘teach[ing] faithfully the Word of
God, the Sacred Scriptures, in its truth and purity and as
set forth in all the symbolical books of the Evangelical Lu-
theran Church.’ ” Ibid. Although Perich also provided in-
struction in secular subjects, she taught religion four days
a week, led her students in prayer three times a day, took
her students to a chapel service once a week, and partici-
pated in the liturgy twice a year. “As a source of religious
instruction,” we explained, “Perich performed an important
role in transmitting the Lutheran faith to the next genera-
tion.” Ibid.The case featured two concurrences. In the first, JUSTICE
THOMAS stressed that courts should “defer to a religious or-
ganization’s good-faith understanding of who qualifies as
its minister.” Id., at 196. That is so, JUSTICE THOMAS ex-
plained, because “[a] religious organization’s right to choose
its ministers would be hollow . . . if secular courts could
second-guess” the group’s sincere application of its religious
tenets. Id., at 197.
The second concurrence argued that application of the
“ministerial exception” should “focus on the function per-
formed by persons who work for religious bodies” rather
than labels or designations that may vary across faiths. Id.,
at 198 (opinion of ALITO, J., joined by KAGAN, J.). This opin-
ion viewed the title of “minister” as “relevant” but “neither
necessary nor sufficient.” Id., at 202. It noted that “most
faiths do not employ the term ‘minister’ ” and that some
16 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
“consider the ministry to consist of all or a very large per-
centage of their members.” Ibid. The opinion concluded
that the “ ‘ministerial’ exception” “should apply to any ‘em-
ployee’ who leads a religious organization, conducts wor-
ship services or important religious ceremonies or rituals,
or serves as a messenger or teacher of its faith.” Id., at 199.
D
1
In determining whether a particular position falls within
the Hosanna-Tabor exception, a variety of factors may be
important.10 The circumstances that informed our decision
in Hosanna-Tabor were relevant because of their relation-
ship to Perich’s “role in conveying the Church’s message
and carrying out its mission,” id., at 192, but the other
noted circumstances also shed light on that connection. In
a denomination that uses the term “minister,” conferring
that title naturally suggests that the recipient has been
given an important position of trust. In Perich’s case, the
title that she was awarded and used demanded satisfaction
of significant academic requirements and was conferred
only after a formal approval process, id., at 191, and those
circumstances also evidenced the importance attached to
her role, ibid. But our recognition of the significance of
those factors in Perich’s case did not mean that they must
——————
10 In considering the circumstances of any given case, courts must take
care to avoid “resolving underlying controversies over religious doctrine.”
Presbyterian Church in U. S. v. Mary Elizabeth Blue Hull Memorial Pres-
byterian Church, 393 U. S. 440, 449 (1969); ibid. (“First Amendment val-
ues are plainly jeopardized when . . . litigation is made to turn on the
resolution by civil courts of controversies over religious doctrine and
practice”); see also Serbian Eastern Orthodox Diocese for United States
and Canada v. Milivojevich, 426 U. S. 696, 715, n. 8 (1976) (“ ‘It is not to
be supposed that the judges of the civil courts can be as competent in the
ecclesiastical law and religious faith of all these bodies as the ablest men
in each are in reference to their own’ ” (quoting Watson v. Jones, 13 Wall.
679, 729 (1872))); cf. Thomas v. Review Bd. of Ind. Employment Security
Div., 450 U. S. 707, 714–716 (1981).
Cite as: 591 U. S. ____ (2020) 17
Opinion of the Court
be met—or even that they are necessarily important—in all
other cases.
Take the question of the title “minister.” Simply giving
an employee the title of “minister” is not enough to justify
the exception. And by the same token, since many religious
traditions do not use the title “minister,” it cannot be a nec-
essary requirement. Requiring the use of the title would
constitute impermissible discrimination, and this problem
cannot be solved simply by including positions that are
thought to be the counterparts of a “minister,” such as
priests, nuns, rabbis, and imams. See Brief for Respond-
ents 21. Nuns are not the same as Protestant ministers. A
brief submitted by Jewish organizations makes the point
that “Judaism has many ‘ministers,’ ” that is, “the term
‘minister’ encompasses an extensive breadth of religious
functionaries in Judaism.”11 For Muslims, “an inquiry into
whether imams or other leaders bear a title equivalent to
‘minister’ can present a troubling choice between denying a
central pillar of Islam—i.e., the equality of all believers—
and risking loss of ministerial exception
protections.”12
If titles were all-important, courts would have to decide
which titles count and which do not, and it is hard to see
how that could be done without looking behind the titles to
what the positions actually entail. Moreover, attaching too
much significance to titles would risk privileging religious
traditions with formal organizational structures over those
that are less formal.
For related reasons, the academic requirements of a po-
sition may show that the church in question regards the po-
sition as having an important responsibility in elucidating
or teaching the tenets of the faith. Presumably the purpose
——————
11 Brief for Colpa et al. as Amici Curiae i, 3 (quotation modified).
12 Brief for Asma T. Uddin as Amicus Curiae 2.
18 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
of such requirements is to make sure that the person hold-
ing the position understands the faith and can explain it
accurately and effectively. But insisting in every case on
rigid academic requirements could have a distorting effect.
This is certainly true with respect to teachers. Teaching
children in an elementary school does not demand the same
formal religious education as teaching theology to divinity
students. Elementary school teachers often teach secular
subjects in which they have little if any special training. In
addition, religious traditions may differ in the degree of for-
mal religious training thought to be needed in order to
teach. See, e.g., Brief for Ethics and Religious Liberty Com-
mission of the Southern Baptist Convention et al. as Amici
Curiae 12 (“many Protestant groups have historically re-
jected any requirement of formal theological training”). In
short, these circumstances, while instructive in Hosanna-
Tabor, are not inflexible requirements and may have far
less significance in some cases.
What matters, at bottom, is what an employee does. And
implicit in our decision in Hosanna-Tabor was a recognition
that educating young people in their faith, inculcating its
teachings, and training them to live their faith are respon-
sibilities that lie at the very core of the mission of a private
religious school. As we put it, Perich had been entrusted
with the responsibility of “transmitting the Lutheran faith
to the next generation.” 565 U. S., at 192. One of the con-
currences made the same point, concluding that the excep-
tion should include “any ‘employee’ who leads a religious
organization, conducts worship services or important reli-
gious ceremonies or rituals, or serves as a messenger or
teacher of its faith.” Id., at 199 (opinion of ALITO, J.) (em-
phasis added).
Religious education is vital to many faiths practiced in
the United States. This point is stressed by briefs filed in
support of OLG and St. James by groups affiliated with a
Cite as: 591 U. S. ____ (2020) 19
Opinion of the Court
wide array of faith traditions. In the Catholic tradition, re-
ligious 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 reli-
gious 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).
Similarly, Protestant churches, from the earliest settle-
ments in this country, viewed education as a religious obli-
gation. A core belief of the Puritans was that education was
essential to thwart the “chief project of that old deluder, Sa-
tan, to keep men from the knowledge of the Scriptures.”13
Thus, in 1647, the Massachusetts General Court passed
what has been called the Old Deluder Satan Act requiring
every sizable town to establish a school.14 Most of the oldest
educational institutions in this country were originally es-
tablished by or affiliated with churches, and in recent years,
non-denominational Christian schools have proliferated
with the aim of inculcating Biblical values in their stu-
dents.15 Many such schools expressly set themselves apart
from public schools that they believe do not reflect their
values.16
Religious education is a matter of central importance in
——————
13 Old Deluder Satan Act of 1647, in The Laws and Liberties of Massa-
chusetts 47 (M. Farrand ed. 1929).
14 Ibid.
15 See P. Parsons, Inside America’s Christian Schools (1987); see also
Association of Christian Schools International, Why Christian School-
ing?, https://www.acsi.org/membership/why-christian-schooling; Association
of Classical Christian Schools, What is CCE?, https://classicalchristian.org/
what-is-cce/?v=a44707111a05.
16 R. Dreher, The Benedict Option 146, 155, 160 (2017); see, e.g., J.
Ekeland & B. Walton, Discover Christian Schools: Ten Differences,
https : / / discoverchristianschools.com/wp-content/uploads/2019/02/DCS_
TenDifferences.pdf.
20 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
Judaism. As explained in briefs submitted by Jewish or-
ganizations, the Torah is understood to require Jewish par-
ents to ensure that their children are instructed in the
faith.17 One brief quotes Maimonides’s statement that reli-
gious instruction “is an obligation of the highest order, en-
trusted only to a schoolteacher possessing ‘fear of
Heaven.’ ”18 “The contemporary American Jewish commu-
nity continues to place the education of children in its faith
and rites at the center of its communal efforts.”19
Religious education is also important in Islam. “[T]he ac-
quisition of at least rudimentary knowledge of religion and
its duties [is] mandatory for the Muslim individual.”20 This
precept is traced to the Prophet Muhammad, who pro-
claimed that “ ‘[t]he pursuit of knowledge is incumbent on
every Muslim.’ ”21 “[T]he development of independent pri-
vate Islamic schools ha[s] become an important part of the
picture of Muslim education in America.”22
The Church of Jesus Christ of Latter-day Saints has a
long tradition of religious education, with roots in revela-
tions given to Joseph Smith. See Doctrine and Covenants
of the Church of Jesus Christ of Latter-day Saints §93:36
(2013). “The Church Board of Education has established
elementary, middle, or secondary schools in which both sec-
ular and religious instruction is offered.”23
——————
17 See Deuteronomy 6:7, 11:19.
18 Brief for General Conference of Seventh-day Adventists et al. as
Amici Curiae 7–8 (quoting Maimonides, Mishne Torah, Hilkhot Talmud
Torah 1:2; 2:1, 3).
19 Brief for Church of God in Christ, Inc., et al. as Amici Curiae 15.
20 Afsaruddin, Muslim Views on Education: Parameters, Purview, and
Possibilities, 44 J. Cath. Legal Studies 143, 143–144 (2005).
21 Id., at 143.
22 Haddad & Smith, Introduction: The Challenge of Islamic Education
in North America, in Educating the Muslims of America 3, 6, 11 (Y. Had-
dad, F. Senzai, & J. Smith eds. 2009).
23 Berrett, Church Educational System (CES) in 1 Encyclopedia of Mor-
monism 274, 275 (D. Ludlow ed. 1992).
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Opinion of the Court
Seventh-day Adventists “trace the importance of educa-
tion back to the Garden of Eden.”24 Seventh-day Adventist
formation “restore[s] human beings into the image of God
as revealed by the life of Jesus Christ” and focuses on the
development of “knowledge, skills, and understandings to
serve God and humanity.”25
This brief survey does not do justice to the rich diversity
of religious education in this country, but it shows the close
connection that religious institutions draw between their
central purpose and educating the young in the faith.
2
When we apply this understanding of the Religion
Clauses to the cases now before us, it is apparent that Mor-
rissey-Berru and Biel qualify for the exemption we recog-
nized in Hosanna-Tabor. There is abundant record evi-
dence that they both performed vital religious duties.
Educating and forming students in the Catholic faith lay at
the core of the mission of the schools where they taught, and
their employment agreements and faculty handbooks spec-
ified in no uncertain terms that they were expected to help
the schools carry out this mission and that their work would
be evaluated to ensure that they were fulfilling that respon-
sibility. As elementary school teachers responsible for
providing instruction in all subjects, including religion,
they were the members of the school staff who were en-
trusted most directly with the responsibility of educating
their students in the faith. And not only were they obli-
gated to provide instruction about the Catholic faith, but
they were also expected to guide their students, by word
and deed, toward the goal of living their lives in accordance
with the faith. They prayed with their students, attended
——————
24 Brief for General Conference of Seventh-day Adventists et al. as
Amici Curiae 9.
25 Seventh-day Adventist Church, About Us, https://adventisteducation.
org/abt.html.
22 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
Mass with the students, and prepared the children for their
participation in other religious activities. Their positions
did not have all the attributes of Perich’s. Their titles did
not include the term “minister,” and they had less formal
religious training, but their core responsibilities as teachers
of religion were essentially the same. And both their
schools expressly saw them as playing a vital part in carry-
ing out the mission of the church, and the schools’ definition
and explanation of their roles is important. In a country
with the religious diversity of the United States, judges can-
not be expected to have a complete understanding and ap-
preciation of the role played by every person who performs
a particular role in every religious tradition. A religious in-
stitution’s explanation of the role of such employees in the
life of the religion in question is important.
III
In holding that Morrissey-Berru and Biel did not fall
within the Hosanna-Tabor exception, the Ninth Circuit
misunderstood our decision. Both panels treated the cir-
cumstances that we found relevant in that case as checklist
items to be assessed and weighed against each other in
every case, and the dissent does much the same. That ap-
proach is contrary to our admonition that we were not im-
posing any “rigid formula.” 565 U. S., at 190. Instead, we
called on courts to take all relevant circumstances into ac-
count and to determine whether each particular position
implicated the fundamental purpose of the exception.26
——————
26 The dissent charges that we transform the holding in Hosanna-
Tabor, but that is what the dissent does. Post, at 8. According to the
dissent: “Hosanna-Tabor charted a way to separate leaders who ‘person-
ify’ a church’s ‘beliefs’ [and] ‘minister to the faithful’ from individuals
who may simply relay religious tenets.” Post, at 7 (quoting 565 U. S., at
188, 195).
The dissent cobbles together this new test by taking phrases out of
context from separate passages and inserting a proposition never sug-
gested in Hosanna-Tabor, namely, that an individual cannot qualify for
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Opinion of the Court
The Ninth Circuit’s rigid test produced a distorted anal-
ysis. First, it invested undue significance in the fact that
Morrissey-Berru and Biel did not have clerical titles. 769
Fed. Appx., at 460; 911 F. 3d, at 608–609; Post, at 15–16. It
is true that Perich’s title included the term “minister,” but
we never said that her title (or her reference to herself as a
“minister”) was necessary to trigger the Hosanna-Tabor ex-
ception. Instead, “those considerations . . . merely made
Perich’s case an especially easy one.” Brief for United
States as Amicus Curiae 19. Moreover, both Morrissey-
Berru and Biel had titles. They were Catholic elementary
school teachers, which meant that they were their students’
primary teachers of religion. The concept of a teacher of
religion is loaded with religious significance. The term
“rabbi” means teacher, and Jesus was frequently called
rabbi.27 And if a more esoteric title is needed, they were
——————
the exception if he or she “simply relay[s] religious tenets” without “ ‘min-
ister[ing] to the faithful.’ ” Post, at 7. Hosanna-Tabor never adopted this
unworkable test. It did not suggest that the exception it recognized ap-
plied only to “leaders.” Post, at 4–5, and n. 1. The term is never used in
the opinion of the Court. Insisting on leadership as a qualification would
shrink the exception even more than respondents advocate. For exam-
ple, they agree that it should apply to nuns, see Brief for Respondents
21, but, under the dissent’s test, is every cloistered nun—or every clois-
tered monk—disqualified? And even if leadership were a requirement,
why couldn’t a religious teacher be regarded as a leader of the students
in the class?
Nor did our opinion in Hosanna-Tabor draw a critical distinction be-
tween a person who “simply relay[s] religious tenets” and one who relays
such tenets while also “ ‘minister[ing] to the faithful.’ ” Post, at 7. A
teacher, such as an instructor in a class on world religions, who merely
provides a description of the beliefs and practices of a religion without
making any effort to inculcate those beliefs could not qualify for the ex-
ception, but otherwise the distinction makes no sense. If a member of
the Christian clergy or a rabbi spends almost all of his or her time stud-
ying Scripture or theology and writing instead of ministering to a con-
gregation, would that individual fall outside the exception as understood
by the dissent?
27 See, e.g., Mark 9:5, 11:21; John 1:38, 3:26, 4:31, 6:25, 9:2.
24 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
both regarded as “catechists.”28
Second, the Ninth Circuit assigned too much weight to
the fact that Morrissey-Berru and Biel had less formal reli-
gious schooling than Perich. 769 Fed. Appx., at 460–461;
911 F. 3d, at 608; post, at 16–17. The significance of formal
training must be evaluated in light of the age of the stu-
dents taught and the judgment of a religious institution re-
garding the need for formal training. The schools in ques-
tion here thought that Morrissey-Berru and Biel had a
sufficient understanding of Catholicism to teach their stu-
dents,29 and judges have no warrant to second-guess that
judgment or to impose their own credentialing require-
ments.
Third, the St. James panel inappropriately diminished
the significance of Biel’s duties because they did not evince
“close guidance and involvement” in “students’ spiritual
lives.” 911 F. 3d, at 609; post, at 12, 17–18. Specifically,
the panel majority suggested that Biel merely taught “reli-
gion from a book required by the school,” “joined” students
in prayer, and accompanied students to Mass in order to
keep them “ ‘quiet and in their seats.’ ” 911 F. 3d, at 609.
This misrepresents the record and its significance. For bet-
ter or worse, many primary school teachers tie their in-
struction closely to textbooks, and many faith traditions
prioritize teaching from authoritative texts. See Brief for
InterVarsity Christian Fellowship USA et al. as Amici Cu-
riae 26; Brief for Senator Mike Lee et al. as Amici Curiae
24–27. As for prayer, Biel prayed with her students, taught
——————
28 See App. to Pet. for Cert. in No. 19–267, at 56a, 60a; ER 593 (St.
James) (“teachers are expected to . . . engage in catechetical . . . develop-
ment”); Record in No. 2:15–CV–04248 (CD Cal.), Doc. 67–1, ¶10 (“re-
quir[ing]” attendance at “Catholic education conference” to “prepare
teachers as religious educators”).
29 The record also makes clear (contrary to the Ninth Circuit’s and dis-
sent’s conclusion, post, at 17) that Morrissey-Berru and Biel “held them-
selves out” as authorities on religion to their students, and, by extension,
their families. See supra, at 2–9.
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Opinion of the Court
them prayers, and supervised the prayers led by students.
She prepared them for Mass, accompanied them to Mass,
and prayed with them there. See supra, at 8–9.
In Biel’s appeal, the Ninth Circuit suggested that the
Hosanna-Tabor exception should be interpreted narrowly
because the ADA, 42 U. S. C. §12101 et seq., and Title VII,
§2000e–2, contain provisions allowing religious employers
to give preference to members of a particular faith in em-
ploying individuals to do work connected with their activi-
ties. 911 F. 3d, at 611, n. 5; post, at 2–3. But the Hosanna-
Tabor exception serves an entirely different purpose. Think
of the quintessential case where a church wants to dismiss
its minister for poor performance. The church’s objection in
that situation is not that the minister has gone over to some
other faith but simply that the minister is failing to perform
essential functions in a satisfactory manner.
While the Ninth Circuit treated the circumstances that
we cited in Hosanna-Tabor as factors to be assessed and
weighed in every case, respondents would make the govern-
ing test even more rigid. In their view, courts should begin
by deciding whether the first three circumstances—a min-
isterial title, formal religious education, and the employee’s
self-description as a minister—are met and then, in order
to check the conclusion suggested by those factors, ask
whether the employee performed a religious function. Brief
for Respondents 20–24. For reasons already explained,
there is no basis for treating the circumstances we found
relevant in Hosanna-Tabor in such a rigid manner.
Respondents go further astray in suggesting that an em-
ployee can never come within the Hosanna-Tabor exception
unless the employee is a “practicing” member of the religion
with which the employer is associated. Brief for Respond-
ents 12–13, 21. In hiring a teacher to provide religious in-
struction, a religious school is very likely to try to select a
person who meets this requirement, but insisting on this as
a necessary condition would create a host of problems. As
26 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
Opinion of the Court
pointed out by petitioners, determining whether a person
is a “co-religionist” will not always be easy. See Reply Brief
14 (“Are Orthodox Jews and non-Orthodox Jews co-
religionists? . . . Would Presbyterians and Baptists be sim-
ilar enough? Southern Baptists and Primitive Baptists?”).
Deciding such questions would risk judicial entanglement
in religious issues.
Expanding the “co-religionist” requirement, Brief for Re-
spondents 28–29, 44, to exclude those who no longer prac-
tice the faith would be even worse, post, at 13. Would the
test depend on whether the person in question no longer
considered himself or herself to be a member of a particular
faith? Or would the test turn on whether the faith tradition
in question still regarded the person as a member in some
sense?
Respondents argue that Morrissey-Berru cannot fall
within the Hosanna-Tabor exception because she said in
connection with her lawsuit that she was not “a practicing
Catholic,” but acceptance of that argument would require
courts to delve into the sensitive question of what it means
to be a “practicing” member of a faith, and religious employ-
ers would be put in an impossible position. Morrissey-
Berru’s employment agreements required her to attest to
“good standing” with the church. See App. 91, 144, 154.
Beyond insisting on such an attestation, it is not clear how
religious groups could monitor whether an employee is
abiding by all religious obligations when away from the job.
Was OLG supposed to interrogate Morrissey-Berru to con-
firm that she attended Mass every Sunday?
Respondents argue that the Hosanna-Tabor exception is
not workable unless it is given a rigid structure, but we de-
clined to adopt a “rigid formula” in Hosanna-Tabor, and the
lower courts have been applying the exception for many
years without such a formula. Here, as in Hosanna-Tabor,
it is sufficient to decide the cases before us. When a school
Cite as: 591 U. S. ____ (2020) 27
Opinion of the Court
with a religious mission entrusts a teacher with the respon-
sibility of educating and forming students in the faith, judi-
cial intervention into disputes between the school and the
teacher threatens the school’s independence in a way that
the First Amendment does not allow.
* * *
For these reasons, the judgment of the Court of Appeals
in each case is reversed, and the cases are remanded for
proceedings consistent with this opinion.
It is so ordered.
Cite as: 591 U. S. ____ (2020) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–267 and 19–348
_________________
OUR LADY OF GUADALUPE SCHOOL, PETITIONER
19–267 v.
AGNES MORRISSEY-BERRU
ST. JAMES SCHOOL, PETITIONER
19–348 v.
DARRYL BIEL, AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF KRISTEN BIEL
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 8, 2020]
JUSTICE THOMAS, with whom JUSTICE GORSUCH joins,
concurring.
I agree with the Court that Morrissey-Berru’s and Biel’s
positions fall within the “ministerial exception,”1 because,
as Catholic school teachers, they are charged with
“carry[ing] out [the religious] mission” of the parish schools.
Ante, at 21. The Court properly notes that “judges have no
warrant to second-guess [the schools’] judgment” of who
should hold such a position “or to impose their own creden-
tialing requirements.” Ante, at 24. Accordingly, I join the
Court’s opinion in full. I write separately, however, to reit-
erate my view that the Religion Clauses require civil courts
——————
1 As the Court acknowledges, the term “ministerial exception” is some-
what of a misnomer. See ante, at 11. The First Amendment’s protection
of religious organizations’ employment decisions is not limited to mem-
bers of the clergy or others holding positions akin to that of a “minister.”
Ibid. Rather, as these cases demonstrate, such protection extends to the
laity, provided they are entrusted with carrying out the religious mission
of the organization. Ante, at 2, 21.
2 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
THOMAS, J., concurring
to defer to religious organizations’ good-faith claims that a
certain employee’s position is “ministerial.” See Hosanna-
Tabor Evangelical Lutheran Church and School v. EEOC,
565 U. S. 171, 196 (2012) (THOMAS, J., concurring).
This deference is necessary because, as the Court rightly
observes, judges lack the requisite “understanding and ap-
preciation of the role played by every person who performs
a particular role in every religious tradition.” Ante, at 22.
What qualifies as “ministerial” is an inherently theological
question, and thus one that cannot be resolved by civil
courts through legal analysis. See Hosanna-Tabor, supra,
at 197 (THOMAS, J., concurring); see also Memorial and Re-
monstrance Against Religious Assessments, in Selected
Writings of James Madison 21, 24 (R. Ketcham ed. 2006)
(the idea that a “Civil Magistrate is a competent Judge of
Religious truth” is “an arrogant pretension” that has been
“falsified”). Contrary to the dissent’s claim, judges do not
shirk their judicial duty or provide a mere “rubber stamp”
when they defer to a religious organization’s sincere beliefs.
Post, at 9 (opinion of SOTOMAYOR, J.). Rather, they heed
the First Amendment, which “commands civil courts to de-
cide [legal] disputes without resolving underlying contro-
versies over religious doctrine.” Presbyterian Church in U.
S. v. Mary Elizabeth Blue Hull Memorial Presbyterian
Church, 393 U. S. 440, 449 (1969); see also ante, at 16, n. 10.
Moreover, because the application of the exception turns
on religious beliefs, the duties that a given religious organ-
ization will deem “ministerial” are sure to vary. Although
the functions recognized as ministerial by the Lutheran
school in Hosanna-Tabor are similar to those considered
ministerial by the Catholic schools here, such overlap will
not necessarily exist with other religious organizations,
particularly those “outside of the ‘mainstream.’ ” 565 U. S.,
at 197 (THOMAS, J., concurring). To avoid disadvantaging
these minority faiths and interfering in “a religious group’s
Cite as: 591 U. S. ____ (2020) 3
THOMAS, J., concurring
right to shape its own faith and mission,” id., at 188 (major-
ity opinion), courts should defer to a religious organization’s
sincere determination that a position is “ministerial.” Id.,
at 197 (THOMAS, J., concurring).
The Court’s decision today is a step in the right direction.
The Court properly declines to consider whether an em-
ployee shares the religious organization’s beliefs when de-
termining whether that employee’s position falls within the
“ministerial exception,” explaining that to “determin[e]
whether a person is a ‘co-religionist’ . . . would risk judicial
entanglement in religious issues.” Ante, at 26. But the
same can be said about the broader inquiry whether an em-
ployee’s position is “ministerial.” This Court usually goes
to great lengths to avoid governmental “entanglement”
with religion, particularly in its Establishment Clause
cases. See, e.g., Lemon v. Kurtzman, 403 U. S. 602, 613
(1971).2 For example, the Court has held that a public
school became impermissibly “entangle[d]” with religion by
simply permitting students to say a prayer before football
games and overseeing a class election for whom would de-
liver the prayer. Santa Fe Independent School Dist. v. Doe,
530 U. S. 290, 305–307 (2000). And, in Locke v. Davey, 540
U. S. 712 (2004), the Court concluded that it would violate
States’ “antiestablishment interests” if tax dollars even in-
directly supported the education of ministers, id., at 722.
But, when it comes to the autonomy of religious organiza-
tions in our ministerial-exception cases, these concerns of
entanglement have not prevented the Court from weighing
——————
2 As I have previously explained, this Court’s Establishment Clause
jurisprudence “is unmoored from the original meaning of the First
Amendment.” Espinoza v. Montana Dept. of Revenue, ante, at 2 (concur-
ring opinion). Properly understood, the Establishment Clause proscribes
governmental “ ‘coercion of religious orthodoxy and of financial support
by force of law and threat of penalty.’ ” American Legion v. American
Humanist Assn., 588 U. S. ___, ___ (2019) (THOMAS, J., concurring in
judgment) (slip op., at 3) (quoting Lee v. Weisman, 505 U. S. 577, 640
(1992) (Scalia, J., dissenting)).
4 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
THOMAS, J., concurring
in on the theological questions of which positions qualify as
“ministerial.”
As this Court has explained, the Religion Clauses do not
permit governmental “interfere[nce] with . . . a religious
group’s right to shape its own faith and mission through its
appointments.” Hosanna-Tabor, supra, at 188. To avoid
such interference, we should defer to these groups’ good-
faith understandings of which individuals are charged with
carrying out the organizations’ religious missions.
Here, the record confirms the sincerity of petitioners’
claims that, as lay teachers, Morrissey-Berru and Biel held
ministerial roles in these parish schools. For example, the
Our Lady of Guadalupe Faculty Handbook states that lay
teachers serve “special pastoral administrative roles . . . in
the service of the people of God.” App. to Pet. for Cert. in
No. 19–267, p. 52a (emphasis added). Moreover, their “es-
sential job duties” include “[m]odeling, teaching of and com-
mitment to Catholic religious and moral values.” Id., at 55a
(boldface deleted); see also id., at 32a (Morrissey-Berru’s
teaching contract); App. to Pet. for Cert. in No. 19–348,
p. 96a (Biel’s teaching contract). And both Morrissey-
Berru’s and Biel’s teaching contracts required that their
“duties and responsibilities . . . be performed [with an] over-
riding commitment” to “develop[ing] . . . a Catholic School
Faith Community” in accordance with “the doctrines, laws
and norms of the Catholic Church.” Ibid.; App. to Pet. for
Cert. in No. 19–267, at 32a. Finally, amicus curiae United
States Conference of Catholic Bishops confirms that peti-
tioners’ understanding is consistent with the Church’s view
that “Catholic teachers play a critical role” in the Church’s
ministry. Brief for United States Conference of Catholic
Bishops 10–11; see also Catechism of the Catholic Church
8 (2d ed. 2016) (noting that the goal of “education in the
faith of children [is] to initiat[e] the hearers into the full-
ness of Christian life” (emphasis deleted; internal quotation
marks omitted)).
Cite as: 591 U. S. ____ (2020) 5
THOMAS, J., concurring
The foregoing is more than enough to sustain the sincer-
ity of petitioners’ claims that Morrissey-Berru and Biel held
ministerial roles in the parish schools. Their claims thus
warrant this Court’s deference and serve as a sufficient ba-
sis for applying the ministerial exception.
Cite as: 591 U. S. ____ (2020) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 19–267 and 19–348
_________________
OUR LADY OF GUADALUPE SCHOOL, PETITIONER
19–267 v.
AGNES MORRISSEY-BERRU
ST. JAMES SCHOOL, PETITIONER
19–348 v.
DARRYL BIEL, AS PERSONAL REPRESENTATIVE OF THE
ESTATE OF KRISTEN BIEL
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[July 8, 2020]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG
joins, dissenting.
Two employers fired their employees allegedly because
one had breast cancer and the other was elderly. Purport-
ing to rely on this Court’s decision in Hosanna-Tabor Evan-
gelical Lutheran Church and School v. EEOC, 565 U. S. 171(2012), the majority shields those employers from disability
and age-discrimination claims. In the Court’s view, because
the employees taught short religion modules at Catholic el-
ementary schools, they were “ministers” of the Catholic
faith and thus could be fired for any reason, whether reli-
gious or nonreligious, benign or bigoted, without legal re-
course. The Court reaches this result even though the
teachers taught primarily secular subjects, lacked substan-
tial religious titles and training, and were not even required
to be Catholic. In foreclosing the teachers’ claims, the Court
skews the facts, ignores the applicable standard of review,
2 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
and collapses Hosanna-Tabor’s careful analysis into a sin-
gle consideration: whether a church thinks its employees
play an important religious role. Because that simplistic
approach has no basis in law and strips thousands of school-
teachers of their legal protections, I respectfully dissent.
I
A
Our pluralistic society requires religious entities to abide
by generally applicable laws. E,g., Employment Div., Dept.
of Human Resources of Ore. v. Smith, 494 U. S. 872, 879–
882 (1990). Consistent with the First Amendment (and
over sincerely held religious objections), the Government
may compel religious institutions to pay Social Security
taxes for their employees, United States v. Lee, 455 U. S.
252, 256–261 (1982), deny nonprofit status to entities that
discriminate because of race, Bob Jones Univ. v. United
States, 461 U. S. 574, 603–605 (1983), require applicants for
certain public benefits to register with Social Security num-
bers, Bowen v. Roy, 476 U. S. 693, 699–701 (1986), enforce
child-labor protections, Prince v. Massachusetts, 321 U. S.
158, 166–170 (1944), and impose minimum-wage laws,
Tony and Susan Alamo Foundation v. Secretary of Labor,
471 U. S. 290, 303–306 (1985).
Congress, however, has crafted exceptions to protect reli-
gious autonomy. Some antidiscrimination laws, like the
Americans with Disabilities Act, permit a religious institu-
tion to consider religion when making employment deci-
sions. 42 U. S. C. §12113(d)(1). Under that Act, a religious
organization may also “require that all applicants and em-
ployees conform” to the entity’s “religious tenets.”
§12113(d)(2). Title VII further permits a school to prefer
“hir[ing] and employ[ing]” people “of a particular religion”
if its curriculum “propagat[es]” that religion. §2000e–2(e);
see also §2000e–1(a). These statutory exceptions protect a
religious entity’s ability to make employment decisions—
Cite as: 591 U. S. ____ (2020) 3
SOTOMAYOR, J., dissenting
hiring or firing—for religious reasons.
The “ministerial exception,” by contrast, is a judge-made
doctrine. This Court first recognized it eight years ago in
Hosanna-Tabor, concluding that the First Amendment cat-
egorically bars certain antidiscrimination suits by religious
leaders against their religious employers. 565 U. S., at188–190. When it applies, the exception is extraordinarily
potent: It gives an employer free rein to discriminate be-
cause of race, sex, pregnancy, age, disability, or other traits
protected by law when selecting or firing their “ministers,”
even when the discrimination is wholly unrelated to the em-
ployer’s religious beliefs or practices. Id., at 194–195. That
is, an employer need not cite or possess a religious reason
at all; the ministerial exception even condones animus.
When this Court adopted the ministerial exception, it af-
firmed the holdings of virtually every federal appellate
court that had embraced the doctrine. Id., at 188, and n. 2.
Those courts had long understood that the exception’s stark
departure from antidiscrimination law is narrow. Wary of
the exception’s “potential for abuse,” federal courts treaded
“case-by-case” in determining which employees are minis-
ters exposed to discrimination without recourse. Scharon
v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F. 2d
360, 363, n. 3 (CA8 1991). Thus, their analysis typically
trained on whether the putative minister was a “spiritual
leade[r]” within a congregation such that “he or she should
be considered clergy.” Rayburn v. General Conference of
Seventh-day Adventists, 772 F. 2d 1164, 1168–1169 (CA4
1985) (internal quotation marks omitted); see also Hankins
v. Lyght, 441 F. 3d 96, 117–118, and n. 13 (CA2 2006) (So-
tomayor, J., dissenting) (cataloging Circuit consensus).
That approach recognized that a religious entity’s ability to
choose its faith leaders—rabbis, priests, nuns, imams, min-
isters, to name a few—should be free from government in-
terference, but that generally applicable laws still protected
most employees.
4 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
This focus on leadership led to a consistent conclusion:
Lay faculty, even those who teach religion at church-affili-
ated schools, are not “ministers.” In Geary v. Visitation of
Blessed Virgin Mary Parish School, 7 F. 3d 324 (1993), for
instance, the Third Circuit rejected a Catholic school’s view
that “[t]he unique and important role of the elementary
school teacher in the Catholic education system” barred a
teacher’s discrimination claim under the First Amendment.
Id., at 331. In Dole v. Shenandoah Baptist Church, 899
F. 2d 1389 (1990), the Fourth Circuit found a materially
similar statutory ministerial exception inapplicable to
teachers who taught “all classes” “from a pervasively reli-
gious perspective,” “le[d]” their “students in prayer,” and
were “required to subscribe to [a church] statement of faith
as a condition of employment.” Id., at 1396. Similar exam-
ples abound. See, e.g., EEOC v. Mississippi College, 626
F. 2d 477, 479, 485 (CA5 1980) (ministerial exception inap-
plicable to faculty members of a Baptist college that “con-
ceive[d] of education as an integral part of its Christian mis-
sion” and “expected” faculty “to serve as exemplars of
practicing Christians”); EEOC v. Fremont Christian School,
781 F. 2d 1362, 1369–1370 (CA9 1986) (ministerial excep-
tion inapplicable to teachers whom a church considered as
performing “an integral part of the religious mission of the
Church to its children”); cf. Rayburn, 772 F. 2d, at 1168(“Lay ministries, even in leadership roles within a congre-
gation, do not compare to the institutional selection for hire
of one member with special theological training to lead oth-
ers”).
Hosanna-Tabor did not upset this consensus. Instead, it
recognized the ministerial exception’s roots in protecting re-
ligious “elections” for “ecclesiastical offices” and guarding
the freedom to “select” titled “clergy” and churchwide lead-
ers. 565 U. S., at 182, 184, 186–187 (internal quotation
marks omitted). To be sure, the Court stated that the “min-
isterial exception is not limited to the head of a religious
Cite as: 591 U. S. ____ (2020) 5
SOTOMAYOR, J., dissenting
congregation.” Id., at 190. Nevertheless, this Court ex-
plained that the exception applies to someone with a lead-
ership role “distinct from that of most of [the organization’s]
members,” someone in whom “[t]he members of a religious
group put their faith,” or someone who “personif[ies]” the
organization’s “beliefs” and “guide[s] it on its way.” Id., at
188, 191, 196.1
This analysis is context-specific. It necessarily turns on,
among other things, the structure of the religious organiza-
tion at issue. Put another way (and as the Court repeats
throughout today’s opinion), Hosanna-Tabor declined to
adopt a “rigid formula for deciding when an employee qual-
ifies as a minister.” 565 U. S., at 190. Rather, Hosanna-
Tabor focused on four “circumstances” to determine
whether a fourth-grade teacher, Cheryl Perich, was em-
ployed at a Lutheran school as a “minister”: (1) “the formal
title given [her] by the Church,” (2) “the substance reflected
in that title,” (3) “her own use of that title,” and (4) “the
important religious functions she performed for the
Church.” Id., at 190, 192. Confirming that the ministerial
exception applies to a circumscribed sub-category of faith
leaders, the Court analyzed those four “factors,” ante, at 16,
to situate Perich as a minister within the Lutheran
Church’s structure.
B
Those considerations showed that Perich had a unique
leadership role within her church. First, the Court noted
that the school had “held Perich out as a minister, with a
role distinct from that of most of its members.” 565 U. S.,
——————
1 While jettisoning most of Hosanna-Tabor’s majority opinion and in-
sisting on “implicit” rationales that featured in a two-Justice concur-
rence, ante, at 18, today’s Court curiously accuses this dissent of
“cobb[ling] together” a standard focused on leadership, ante, at 22, n. 26.
But leadership was central in Hosanna-Tabor, just as it was explicit in
the appellate court consensus that Hosanna-Tabor embraced. See supra,
at 3–4.
6 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
at 191. When the school fired her, Perich was in the role of
a “called teacher,” as opposed to her prior position of “lay
teacher.” Id., at 178. When the church “extended [Perich]
a call,” it also “issued her a ‘diploma of vocation’ according
her the title ‘Minister of Religion, Commissioned.’ ” Id., at
191. And “[i]n a supplement to the diploma, the congrega-
tion undertook to periodically review Perich’s ‘skills of min-
istry’ and ‘ministerial responsibilities,’ and to provide for
her ‘continuing education as a professional person in the
ministry of the Gospel.’ ” Ibid.
Second, the Court observed that Perich’s job title “re-
flected a significant degree of religious training followed by
a formal process of commissioning.” Ibid. Further distin-
guishing Perich from the rest of her faith community, the
Court explained that Perich’s “eligib[ility] to become a com-
missioned minister” turned on her completion of a six-year
process requiring “eight college-level courses in subjects in-
cluding biblical interpretation, church doctrine, and the
ministry of the Lutheran teacher,” obtaining “the endorse-
ment of her local Synod district,” and passing “an oral ex-
amination by a faculty committee at a Lutheran college.”
Ibid.
Third, the Court observed that Perich “held herself out as
a minister of the Church by accepting the formal call to re-
ligious service” and “in other ways as well.” Ibid. Unlike
the lay teachers, for example, Perich claimed a tax exemp-
tion available only to employees earning compensation “in
the exercise of the ministry.” Id., at 192 (internal quotation
marks omitted).
Finally, the Court looked to function, finding that
Perich’s “job duties reflected a role in conveying the
Church’s message and carrying out its mission” notably dif-
ferent from other members of the church. Id., at 192; see
also id., at 188, 191. Perich was “expressly charged” with
“lead[ing] others” in their faith and did so by teaching “her
students religion four days a week” and “le[ading] them in
Cite as: 591 U. S. ____ (2020) 7
SOTOMAYOR, J., dissenting
prayer three times a day.” Id., at 192 (internal quotation
marks omitted). About twice a year, Perich led the school-
wide chapel service by “choosing the liturgy, selecting the
hymns, and delivering a short message based on verses
from the Bible.” Ibid. Perich also “led” her students “in a
brief devotional exercise each morning.” Ibid. The Court
thus observed that, “[a]s a source of religious instruction,
Perich performed an important role in transmitting the Lu-
theran faith to the next generation.” Ibid.
Because this inquiry is holistic, the Court warned that it
is “wrong” to “say that an employee’s title does not matter.”
Id., at 193. The Court was careful not to give religious func-
tions undue weight in identifying church leaders. And the
“amount of time an employee spends on particular activi-
ties,” the Court added, “is relevant in assessing that em-
ployee’s status” when measured against “the nature of the
religious functions performed and the other considera-
tions,” like titles, training, and how the employee held her-
self out to the public. Id., at 194.
Hosanna-Tabor’s well-rounded approach ensured that a
church could not categorically disregard generally applica-
ble antidiscrimination laws for nonreligious reasons. By
analyzing objective and easily discernable markers like ti-
tles, training, and public-facing conduct, Hosanna-Tabor
charted a way to separate leaders who “personify” a
church’s “beliefs” or who “minister to the faithful” from in-
dividuals who may simply relay religious tenets. Id., at
188, 195.2 This balanced First Amendment concerns of
——————
2 Today’s Court resists this commonsense approach, warning that it
might mean that “a member of the Christian clergy or a rabbi” who
“spends almost all of his or her time studying Scripture or theology and
writing” would not fall within the ministerial exception. Ante, at 23,
n. 26. Those examples betray the Court’s holding: As the Court intuits
(but does not recognize), the examples likely fall within the ministerial
exception not just because of the functions involved but also because of
8 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
state-church entanglement while avoiding an overbroad
carve-out from employment protections.
II
Until today, no court had held that the ministerial excep-
tion applies with disputed facts like these and lay teachers
like respondents, let alone at the summary-judgment stage.
See 911 F. 3d 603, 610 (CA9 2018) (case below in No. 19–
348); see also supra, at 3–4.
Only by rewriting Hosanna-Tabor does the Court reach a
different result. The Court starts with an unremarkable
view: that Hosanna-Tabor’s “recognition of the significance
of ” the first three “factors” in that case “did not mean that
they must be met—or even that they are necessarily im-
portant—in all other cases.” Ante, at 16–17. True enough.
One can easily imagine religions incomparable to those at
issue in Hosanna-Tabor and here. But then the Court re-
casts Hosanna-Tabor itself: Apparently, the touchstone all
along was a two-Justice concurrence. To that concurrence,
“[w]hat matter[ed]” was “the religious function that
[Perich] performed” and her “functional status.” Hosanna-
Tabor, 565 U. S., at 206 (opinion of ALITO, J.). Today’s
Court yields to the concurrence’s view with identical rheto-
ric. “What matters,” the Court echoes, “is what an em-
ployee does.” Ante, at 18.
But this vague statement is no easier to comprehend to-
day than it was when the Court declined to adopt it eight
years ago. It certainly does not sound like a legal frame-
work. Rather, the Court insists that a “religious institu-
tion’s explanation of the role of [its] employees in the life of
the religion in question is important.” Ante, at 22; see also
——————
the titles (“clergy” and “rabbi”), the training required to obtain those ti-
tles, and the time spent on religious activity (“almost all” of one’s time).
Ibid. It should be equally obvious that someone who spends a sliver of
time reading, writing, or teaching about religion does not automatically
become a minister of that religion.
Cite as: 591 U. S. ____ (2020) 9
SOTOMAYOR, J., dissenting
ante, at 1–2 (THOMAS, J., concurring) (urging complete def-
erence to a religious institution in determining which em-
ployees are exempt from antidiscrimination laws). But be-
cause the Court’s new standard prizes a functional
importance that it appears to deem churches in the best po-
sition to explain, one cannot help but conclude that the
Court has just traded legal analysis for a rubber stamp.3
Indeed, the Court reasons that “judges cannot be ex-
pected to have a complete understanding and appreciation”
of the law and facts in ministerial-exception cases, ante, at
22, and all but abandons judicial review. Although today’s
decision is limited to certain “teachers of religion,” ante, at
22–23, its reasoning risks rendering almost every Catholic
parishioner and parent in the Archdiocese of Los Angeles a
Catholic minister.4 That is, the Court’s apparent deference
here threatens to make nearly anyone whom the schools
might hire “ministers” unprotected from discrimination in
the hiring process. That cannot be right. Although certain
——————
3 Elsewhere, the Court hints at a comparative inquiry, noting that Biel
and Morrissey-Berru were the school staff “entrusted most directly” with
“educating their students in the faith.” Ante, at 21. Setting aside the
Court’s factual assumptions, one must ask: “[M]ost directly” compared to
what (or whom)? The Court does not say. Perhaps the Court means to
embrace the predominant circuit approach, which looked at whether a
putative minister “serv[ed] primarily religious roles.” Hankins v. Lyght,
441 F. 3d 96, 117, 118, n. 13 (CA2 2006) (Sotomayor, J., dissenting) (iden-
tifying seven Circuits); see also, e.g., Petruska v. Gannon University, 462
F. 3d 294, 304, n. 6, 307 (CA3 2006). But were that the case, the teachers
would have undoubtedly prevailed here.
4 See, e.g., Archdiocese of Los Angeles, Administrative Handbook §2.3.1
(“[P]arishioners are vital to parish life as volunteers. They partic-
ipate as catechists in religious education, organize youth ministry and
adult events, assist in charitable and social outreach activities in the
community, and serve as extraordinary ministers of the Eucharist, lec-
tors, altar servers, and ushers, as well as in other supporting ministerial
roles”); Pope Francis, Post-Synodal Apostolic Exhortation on Love in the
Family 13–14 (2015) (“The family is . . . the place where parents become
their children’s first teachers in the faith . . . . Parents have a serious
responsibility for this work of education”).
10 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
religious functions may be important to a church, a person’s
performance of some of those functions does not mechani-
cally trigger a categorical exemption from generally appli-
cable antidiscrimination laws.
Today’s decision thus invites the “potential for abuse”
against which circuit courts have long warned. Scharon,
929 F. 2d, at 363, n. 3. Nevermind that the Court renders
almost all of the Court’s opinion in Hosanna-Tabor irrele-
vant. It risks allowing employers to decide for themselves
whether discrimination is actionable. Indeed, today’s deci-
sion reframes the ministerial exception as broadly as it can,
without regard to the statutory exceptions tailored to pro-
tect religious practice. As a result, the Court absolves reli-
gious institutions of any animus completely irrelevant to
their religious beliefs or practices and all but forbids courts
to inquire further about whether the employee is in fact a
leader of the religion. Nothing in Hosanna-Tabor (or at
least its majority opinion) condones such judicial abdica-
tion.
III
Faithfully applying Hosanna-Tabor’s approach and com-
mon sense confirms that the teachers here are not Catholic
“ministers” as a matter of law. This is especially so because
the employers seek summary judgment, meaning the Court
must “view the facts and draw reasonable inferences in the
light most favorable to” the teachers. Scott v. Harris, 550
U. S. 372, 378 (2007) (internal quotation marks omitted).5
——————
5 The Court maintains that the Court of Appeals erred by “in effect”
granting summary judgment to the teachers on the ministerial exception
instead of “remand[ing] for a trial.” Ante, at 3, n. 1. Yet today’s decision
commits the exact error it claims to diagnose: The Court views the facts
in the light most favorable to the schools and “in effect” grants summary
judgment to the movants instead of remanding for a trial. As explained
below, the Court is also wrong to assert that there is no material fact
genuinely in dispute. Compare ibid. (asserting that “neither party takes
Cite as: 591 U. S. ____ (2020) 11
SOTOMAYOR, J., dissenting
A
1
Respondent Kristen Biel was a teacher at St. James
School, a Catholic school in the Archdiocese of Los Angeles.6
Biel initially served as a substitute teacher, teaching first
grade two days a week. App. 248–249. At the end of the
2013 school year, the school hired Biel as a full-time fifth-
grade teacher. 911 F. 3d, at 605; App. 250.
Biel’s employment contract identified her position as just
that: “Grade 5 Teacher.” App. to Pet. for Cert. in No. 19–
348, p. 103a; App. 328–329. The contract referred to Biel
throughout as “teacher,” and directed her to the benefits
guide for “Lay Employees.” App. to Pet. for Cert. in No. 19–
348, at 105a; App. 320, 325, 327–329. The contract also
stated that Biel would work ‘‘within [St. James’s] overrid-
ing commitment’’ to church ‘‘doctrines, laws, and norms’’
and would ‘‘model, teach, and promote behavior in conform-
ity to the teaching of the Roman Catholic Church.’’ 911
F. 3d, at 605 (internal quotation marks omitted). According
to the faculty handbook, all faculty (religion teachers or not)
‘‘participate in the Church’s mission’’ of providing ‘‘quality
Catholic education to . . . students, educating them in aca-
demic areas and in . . . Catholic faith and values.” Id., at
605–606 (internal quotation marks omitted). The faculty
handbook further instructs teachers to follow California’s
public-school curricular requirements. Id., at 606.
Although St. James School “recommended” that teachers
be Catholic, the school did not require it. App. 289. Nor did
the school require teachers to have experience, training, or
——————
the position that any material fact is genuinely in dispute) with, e.g.,
Brief for Respondents 12–13, n. 4, 40–41 (taking the position that mate-
rial facts are genuinely in dispute).
6 Unlike the Court, I begin with Biel’s case because it was the first one
decided and the only one deemed precedential below. Biel passed away
last year, losing her life to the same cancer that allegedly lost her a job
at St. James. Biel’s husband now represents her estate.
12 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
schooling in religious pedagogy. 911 F. 3d, at 605. Biel had
no such credentials when the school hired her, as she had
received her bachelor’s degree in liberal arts and a teaching
credential from a public university. Ibid. Even after she
began working at St. James School, Biel’s “only” training in
religious pedagogy was “a single half-day conference where
topics ranged from the incorporation of religious themes
into lesson plans to techniques for teaching art classes.”
Ibid.; see also App. 242–244, 261–263.
Biel taught her fifth-grade class all its academic subjects,
including English, spelling, reading, literature, mathemat-
ics, science, and social studies. 911 F. 3d, at 605; Excerpts
of Record in No. 17–55180 (CA9), p. 588. This also involved
a standard religion curriculum, which Biel taught for about
30 minutes four days a week. 911 F. 3d, at 605. When
teaching religion, Biel followed instructions in a workbook
that the school administration had prescribed. Ibid.; App.
254–255. Twice a day, Biel would pray with her students,
but she “did not lead them.” 911 F. 3d, at 605. Rather, the
class had student “prayer leaders” and “[t]he prayers that
were said in the classroom were said mostly by the stu-
dents.” App to Pet. for Cert. in No. 19–348, at 93a. As Biel
explained, she “didn’t need to teach” her students any pray-
ers, either, because “[t]hey already kn[e]w them” and “had
prayer leaders.” Ibid.; contra, ante, at 24–25 (asserting
without citation that Biel “taught [her students] prayers”).
Once a month, Biel joined her students in the school’s mul-
tipurpose room for mass, which were always officiated by a
Catholic priest or a nun. App. 258. The record does not
show that Biel taught her students what to do at mass.
Ibid. Rather, Biel’s “sole responsibility” during liturgy was
“to keep her class quiet and orderly.” 911 F. 3d, at 605; App.
258–259.
Near the end of the school year, Biel learned that she had
breast cancer and would need surgery and chemotherapy.
Biel informed the school and explained that her condition
Cite as: 591 U. S. ____ (2020) 13
SOTOMAYOR, J., dissenting
would require her to take time off from work. 911 F. 3d, at
606; App. 266–269, 309. The school responded that she
would not be welcomed back. 911 F. 3d, at 606; App. 270–
273. At no point has St. James School suggested a religious
reason for terminating Biel’s employment.
2
In 1998, after a 20-year career in newspaper advertising
and copywriting, respondent Agnes Deirdre Morrissey-
Berru began working as a substitute teacher at Our Lady
of Guadalupe School, another Catholic school in Southern
California. App. to Pet. for Cert. in No. 19–267, p. 80a; App.
74. More recently, she taught fifth and sixth grade full
time. App. 73–75.
Each year, Morrissey-Berru signed an employment con-
tract with the school. Like Biel’s contracts, these agree-
ments referred to Morrissey-Berru as “Teacher” and di-
rected her to the benefits guide for “Lay Employees.”
App. 91–100, 127–164; App. to Pet. for Cert. in No. 19–267,
at 32a–42a. Notably, the faculty handbook promised not to
discriminate on the basis of any protected characteristic, in-
cluding “race,” “sex,” “disability,” or “age.” Record Excerpts
in No. 17–56624, p. 648.
“At no time” during her employment did Morrissey-Berru
“feel God was leading [her] to serve in the ministry,” nor did
she “believe [she] was accepting a formal . . . call to religious
service by working at Our Lady of Guadalupe as a fifth and
sixth grade teacher.” App. to Brief in Opposition in No. 19–
267, p. 2a. Morrissey-Berru, in fact, is not a practicing
Catholic. Ibid. Although Our Lady of Guadalupe School
“preferred” its teachers to be Catholic, there is a factual dis-
pute whether the school insisted on that prerequisite with-
out exception (and thus, for summary-judgment purposes,
the Court must assume there was no absolute require-
ment). App. 110–111; Scott, 550 U. S., at 378. Nor did the
school require teachers to have any background or training
14 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
in Catholic pedagogy (or even religion). Morrissey-Berru
had no such credentials when the school hired her, as she
held a bachelor’s degree in English language arts with a mi-
nor in secondary education. App. 73–74. Many years after
Morrissey-Berru had begun teaching at the school, though,
the school did ask her to attend a catechist course on the
history of the Catholic Church. 769 Fed. Appx. 460, 461
(CA9 2019) (per curiam) (opinion below in No. 19–267);
App. to Pet. for Cert. in No. 19–267, at 85a. The record does
not disclose whether Morrissey-Berru ever completed the
full catechism-certification program, and in fact suggests
that she did not. E.g., Excerpts of Record in No. 17–56624
(CA9), pp. 41–42, 44–45, 67.
Morrissey-Berru taught her class a range of subjects:
reading, writing, math, grammar, vocabulary, science, so-
cial studies, and religion. App. 75. When teaching religion,
Morrissey-Berru followed the contents of a preselected
workbook. App. 79–80. Morrissey-Berru also “led her stu-
dents in daily prayer” and assisted with planning a monthly
mass. 769 Fed. Appx., at 461. But she did not recall
“lead[ing her] students in any devotional exercises.” App.
to Pet. for Cert. in No. 19–267, at 89a.
In 2014, when Morrissey-Berru was in her sixties, the
school did not renew Morrissey-Berru’s contract. Id., at
30a–31a. Like St. James, Our Lady of Guadalupe School
has neither cited nor asserted a religious reason for the ter-
mination.
B
On these records, the Ninth Circuit correctly concluded
that neither school had shown that the ministerial excep-
tion barred the teachers’ claims for disability and age dis-
crimination. At the very least, these cases should have pro-
ceeded to trial. Viewed in the light most favorable to the
teachers, the facts do not entitle the employers to summary
judgment.
Cite as: 591 U. S. ____ (2020) 15
SOTOMAYOR, J., dissenting
First, and as the Ninth Circuit explained, neither school
publicly represented that either teacher was a Catholic
spiritual leader or “minister.” Neither conferred a title re-
flecting such a position. Rather, the schools referred to both
Biel and Morrissey-Berru as “lay” teachers, which the cir-
cuit courts have long recognized as a mark of nonministe-
rial, as opposed to “ministerial,” status. See supra, at 3–4;
App. to Pet. for Cert. in No. 19–267, at 32a–42a; App. 91–
100, 127–164, 244–46, 320–329.
In response, the Court worries that “attaching too much
significance to titles would risk privileging religious tradi-
tions with formal organizational structures over those that
are less formal.” Ante, at 17. That may or may not be true,
but it is irrelevant here. These cases are not about “less
formal” religions; they are about the Catholic Church and
its publicized and undisputedly “formal organizational
structur[e].” Ibid. After all, the right to free exercise has
historically “allow[ed] churches and other religious institu-
tions to define” their own “membership” and internal “or-
ganization.” McConnell, The Origins and Historical Under-
standing of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1464–1465 (1990). But that freedom of choice should
carry consequences in litigation. And here, like the faith at
issue in Hosanna-Tabor, the Catholic Church uses formal
titles.
The Court then turns to irrelevant or disputed facts. The
Court notes, for example, that a religiously significant term
“rabbi” translates to “teacher,” ante, at 23, suggesting that
Biel’s and Morrissey-Berru’s positions as lay teachers con-
ferred religious titles after all. But that wordplay unravels
when one imagines the Court’s logic as applied to a math or
gym or computer “teacher” at either school. The title
“teacher” does not convey ministerial status. Nor does the
Court gain purchase from the disputed fact that Biel and
Morrissey-Berru were “regarded as ‘catechists’ ” “ ‘responsi-
ble for the faith formation of the[ir] students.’ ” Ante, at 4,
16 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
24. For one thing, the Court discusses evidence from only
Morrissey-Berru’s case (not Biel’s).7 For another, the Court
invokes the disputed deposition testimony of a school ad-
ministrator while ignoring record evidence refuting that
characterization and suggesting that Morrissey-Berru
never completed the full catechist training program. See,
e.g., Excerpts of Record in No. 17–56624 (CA9), at 41–42,
44–45, 67. Although the Archdiocese does confer titles and
holds a formal “Catechist Commissioning” every Septem-
ber, id., at 42, 45, the record does not suggest that either
teacher here was so commissioned. In relying on disputed
factual assertions, the Court’s blinkered approach com-
pletely disregards the summary-judgment standard.
Second (and further undermining the schools’ claims),
neither teacher had a “significant degree of religious train-
ing” or underwent a “formal process of commissioning.” Ho-
sanna-Tabor, 565 U. S., at 191; cf. Excerpts of Record in No.
17–56624 (CA9), at 42 (identifying similarly formal train-
ing and commissioning process within the Catholic
Church). Nor did either school require such training or
commissioning as a prerequisite to gaining (or keeping) em-
ployment. In Biel’s case, the record reflects that she at-
tended a single conference that lasted “four or five hours,”
briefly discussed “how to incorporate God into . . . lesson
plans,” and otherwise “showed [teachers] how to do art and
make little pictures or things like that.” App. 262. Notably,
all elementary school faculty attended the conference, in-
cluding the computer teacher. Id., at 261–263. In turn, Our
Lady of Guadalupe did not ask Morrissey-Berru to undergo
——————
7 In Biel’s case, the Court cites a page from St. James School’s “Staff
Guidelines and Responsibilities” setting out “ ‘expect[ations]’ ” and a dec-
laration by the school principal about required attendance at a teacher
conference. See ante, at 24, n. 28. Neither shows as a matter of law that
Biel was a “catechist” or that formal religious training was a prerequisite
to her position. See infra, this page and 17.
Cite as: 591 U. S. ____ (2020) 17
SOTOMAYOR, J., dissenting
any religious training for her first 13 years of teaching, un-
til it asked her to attend the uncompleted program de-
scribed above. See id., at 76–77. This consideration in-
structs that the teachers here did not fall within the
ministerial exception.
Third, neither Biel nor Morrissey-Berru held herself out
as having a leadership role in the faith community. Neither
claimed any benefits (tax, governmental, ceremonial, or ad-
ministrative) available only to spiritual leaders. Cf. Ho-
sanna-Tabor, 565 U. S., at 191–192. Nor does it matter that
all teachers signed contracts agreeing to model and impart
Catholic values. This component of the Hosanna-Tabor in-
quiry focuses on outward-facing behavior, and neither Biel
nor Morrissey-Berru publicly represented herself as any-
thing more than a fifth-grade teacher. App. to Brief in Op-
position in No. 19–267, at 1a–2a; App. 249–250. The Court
does not grapple with this third component of Hosanna-Ta-
bor’s inquiry, which seriously undermines the schools’
cases.
That leaves only the fourth consideration in Hosanna-Ta-
bor: the teachers’ function. To be sure, Biel and Morrissey-
Berru taught religion for a part of some days in the week.
But that should not transform them automatically into
ministers who “guide” the faith “on its way.” Hosanna-Ta-
bor, 565 U. S., at 196; see also supra, at 3–4. Although the
Court does not resolve this functional question with “a stop-
watch,” it still considers the “amount of time an employee
spends on particular activities” in “assessing that em-
ployee’s status.” Hosanna-Tabor, 565 U. S., at 193–194.
Here, the time Biel and Morrissey-Berru spent on secular
instruction far surpassed their time teaching religion. For
the vast majority of class, they taught subjects like reading,
writing, spelling, grammar, vocabulary, math, science, so-
cial studies, and geography. In so doing, both were like any
public school teacher in California, subject to the same
statewide curriculum guidelines. 911 F. 3d, at 606. In
18 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
other words, both Biel and Morrissey-Berru had almost ex-
clusively secular duties, making it especially improper to
deprive them of all legal protection when their employers
have not offered any religious reason for the alleged dis-
crimination.
Nor is it dispositive that both teachers prayed with their
students. Biel did not lead devotionals in her classroom,
did not teach prayers, and had a minor role in monitoring
student behavior during a once-a-month mass. App. 79,
252–253, 256–259. Morrissey-Berru did lead classroom
prayers, bring her students to a cathedral once a year, di-
rect the school Easter play, and sign a contract directing
her to “assist with Liturgy Planning.” App. to Pet. for Cert.
in No. 19–267, at 42a, 68a–69a, 95a–96a. But these occa-
sional tasks should not trigger as a matter of law the min-
isterial exception. Morrissey-Berru did not lead mass, de-
liver sermons, or select hymns. Id., at 89a. And unlike the
teacher in Hosanna-Tabor, there is no evidence that Mor-
rissey-Berru led devotional exercises. App. to Pet. for Cert.
in No. 19–267, at 89a. Her limited religious role does not
fit Hosanna-Tabor’s description of a “minister to the faith-
ful.” 565 U. S., at 189.
Nevertheless, the Court insists that the teachers are min-
isters because “implicit in our decision in Hosanna-Tabor
was a recognition that 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.” Ante, at 18. But
teaching religion in school alone cannot dictate ministerial
status. If it did, then Hosanna-Tabor wasted precious
pages discussing titles, training, and other objective indicia
to examine whether Cheryl Perich was a minister. Not sur-
prisingly, the Government made this same point earlier in
Biel’s case: “If teaching religion to elementary school stu-
dents for a half-hour each day, praying with them daily, and
accompanying them to weekly or monthly religious services
Cite as: 591 U. S. ____ (2020) 19
SOTOMAYOR, J., dissenting
were sufficient to establish a teacher as a minister of the
church within the meaning of the ministerial exception, the
Supreme Court would have had no need for most of its dis-
cussion in Hosanna-Tabor.” Brief for EEOC as Amicus Cu-
riae in No. 17–55180 (CA9), p. 21. Rather, “the Court made
clear in Hosanna-Tabor that context matters.” Ibid. In-
deed.8
Were there any doubt left about the proper result here,
recall that neither school has shown that it required its re-
ligion teachers to be Catholic. The Court does not explain
how the schools here can show, or have shown, that a non-
Catholic “personif[ies]” Catholicism or leads the faith. Ho-
sanna-Tabor, 565 U. S., at 188. Instead, the Court remarks
that a “rigid” coreligionist requirement might “not always
be easy” to apply to faiths like Judaism or variations of
Protestantism. Ante, at 25–26. Perhaps. But that has
nothing to do with Catholicism.
Pause, for a moment, on the Court’s conclusion: Even if
the teachers were not Catholic, and even if they were for-
bidden to participate in the church’s sacramental worship,
they would nonetheless be “ministers” of the Catholic faith
simply because of their supervisory role over students in a
religious school. That stretches the law and logic past their
breaking points. (Indeed, it is ironic that Our Lady of Gua-
dalupe School seeks complete immunity for age discrimina-
tion when its teacher handbook promised not to discrimi-
nate on that basis.) As the Government once put it, even
when a school has a “pervasively religious atmosphere,” its
faculty are unlikely ministers when “there is no require-
ment that its teachers even be members of [its] religious
denomination.” Brief for Appellee in No. 84–2779 (CA9
——————
8 Although the Government supported Biel below, it has since switched
sides without explanation. Odder still, the Government’s brief to this
Court faults the Ninth Circuit for having embraced the Government’s
prior views. Compare Brief for EEOC as Amicus Curiae in No. 17–55180
(CA9), p. 21, with Brief for United States as Amicus Curiae 16–17.
20 OUR LADY OF GUADALUPE SCHOOL v.
MORRISSEY-BERRU
SOTOMAYOR, J., dissenting
1986), pp. 11, 29, n. 17. It is hard to imagine a more con-
crete example than these cases.
* * *
The Court’s conclusion portends grave consequences. As
the Government (arguing for Biel at the time) explained to
the Ninth Circuit, “thousands of Catholic teachers” may
lose employment-law protections because of today’s out-
come. Recording of Oral Arg. 25:15–25:30 in No. 17–55180
(July 11, 2018), https://www.ca9.uscourts.gov/media/
view_video.php?pk_vid=0000014022. Other sources tally
over a hundred thousand secular teachers whose rights are
at risk. See, e.g., Brief for Virginia et al. as Amici Curiae
33, n. 25. And that says nothing of the rights of countless
coaches, camp counselors, nurses, social-service workers,
in-house lawyers, media-relations personnel, and many
others who work for religious institutions. All these em-
ployees could be subject to discrimination for reasons com-
pletely irrelevant to their employers’ religious tenets.
In expanding the ministerial exception far beyond its his-
toric narrowness, the Court overrides Congress’ carefully
tailored exceptions for religious employers. Little if nothing
appears left of the statutory exemptions after today’s con-
stitutional broadside. So long as the employer determines
that an employee’s “duties” are “vital” to “carrying out the
mission of the church,” ante, at 21–22, then today’s laissez-
faire analysis appears to allow that employer to make em-
ployment decisions because of a person’s skin color, age, dis-
ability, sex, or any other protected trait for reasons having
nothing to do with religion.
This sweeping result is profoundly unfair. The Court is
not only wrong on the facts, but its error also risks upending
antidiscrimination protections for many employees of reli-
gious entities. Recently, this Court has lamented a per-
ceived “discrimination against religion.” E.g., Espinoza v.
Montana Dept. of Revenue, ante, at 12. Yet here it swings
Cite as: 591 U. S. ____ (2020) 21
SOTOMAYOR, J., dissenting
the pendulum in the extreme opposite direction, permitting
religious entities to discriminate widely and with impunity
for reasons wholly divorced from religious beliefs. The in-
herent injustice in the Court’s conclusion will be impossible
to ignore for long, particularly in a pluralistic society like
ours. One must hope that a decision deft enough to remold
Hosanna-Tabor to fit the result reached today reflects the
Court’s capacity to cabin the consequences tomorrow.
I respectfully dissent.