The Supreme Court Just Gave Religious Employers a License to Discriminate Against Workers

The Supreme Court stripped civil rights protections from hundreds of thousands of American workers on Wednesday in a sweeping decision that exempts countless religious employers from nondiscrimination statutes. Justice Samuel Alito's 7-2 majority opinion carved a huge loophole in the employment laws in all 50 states and the federal government, allowing religious employers to discriminate against any worker they deem "ministerial."

Wednesday's ruling in Our Lady of Guadalupe School v. Morrissey-Berru involves a doctrine called the ministerial exception. This principle, which courts derived from the First Amendment, bars the government from telling a religious institution whom to choose as its faith leaders. Respecting that principle sometimes requires the courts to butt out of employment disputes, even when a worker claims unlawful discrimination.

The basic premise makes sense; no one seriously argues that the government should be able to tell a church it can't fire its priest. But religious institutions employ a lot of people, and not all of them play a key role in the overarching spiritual mission. Consider, for instance, the two plaintiffs here. Kristen Biel was a fifth grade teacher at a Catholic school that classified her as a lay employee. It did not require these employees to have religious training, and she had none. Biel primarily taught secular subjects; her chief religious duty was joining the class in twice-daily prayer. Agnes Morrissey-Berru was also a fifth grade teacher at a different Catholic school. Like Biel, she was considered a lay employee, taught secular subjects, and had no religious training. She also led her students in a brief prayer once a day.

After Biel was diagnosed with breast cancer, the school terminated her contract. She sued for disability discrimination. Morrissey-Berru's school terminated her contract, as well-because, she asserted in an age discrimination lawsuit, it considered her too old. Neither school provided a religious reason for its decision. Yet when each woman sued, both schools raised the ministerial exception, suddenly announcing that, in fact, Biel and Morrissey-Berru amounted to "ministers" and thus had no right to sue for discrimination.

Alito accepted the schools' claims at face value and in the process established a new test to determine who fits into the ministerial exception. (Only Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented.) The exception, Alito wrote, applied to "certain important positions with churches and other religious institutions." Courts determine whether a position is "important" by asking if it requires the performance of "vital religious duties." Religious duties are "vital" if they are key to "carrying out the mission of the church." And if the church believes an employee fits this role, courts must defer to its determination. In these two teachers' cases, Alito embraced the schools' declaration that their minimal religious duties rendered them "ministers" who qualified for the exception.

Sotomayor's scathing dissent condemned the decision as "profoundlyunfair."

The upshot of this new constitutional rule is that religious employers now have carte blanche to discriminate against workers. After all, if anyone sues, their employer can simply deem them "ministerial" under Alito's deferential test, thwarting litigation. (Indeed, that appears to be exactly what happened to Biel and Morrissey-Berru.) As Sotomayor pointed out in her scathing dissent, Alito's "laissez-faire analysis appears to allow that employer to make employment decisions because of a person's skin color, age, disability, sex, or any other protected trait for reasons having nothing to do with religion."

The court, Sotomayor continued, defeated the very purpose of civil rights laws by allowing employers "to decide for themselves whether discrimination is actionable." In short, it "traded legal analysis for a rubber stamp." Alito's opinion, she concluded, "absolves religious 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. This sweeping result is profoundly unfair."

After Wednesday's decision, every competent lawyer counseling a religious institution will advise their client to foist some minimal "religious duties" on lay employees to shield themselves from lawsuits. The powerful law firm Alliance Defending Freedom has already mastered this trick. In 2015, its lawyers advised religious employers to dump some trivial religious responsibilities on receptionists-like directing them to "provide religious resources"-so they would qualify as "ministers" and lose legal protections. This tactic will almost certainly become commonplace in the wake of Morrissey-Berru.

There are about 150,000 employees in the country's Catholic schools. Morrissey-Berru will yank a large number of them outside state and federal protections against invidious discrimination. But the fallout won't end there. As Sotomayor noted, the decision also affects "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." From now on, these employees "could be subject to discrimination for reasons completely irrelevant to their employers' religious tenets."

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Morrissey-Berru comes on the heels of Espinoza v. Montana, a 5-4 decision that will force a majority of states to fund parochial schools. Taken together, these two decisions mark a startling expansion of constitutional "religious liberty." Most states must now provide taxpayer money to parochial schools-yet they are handcuffed from enforcing their own civil rights laws against the institutions they fund. The Supreme Court has not only bulldozed the wall separating church and state; it has also handed religious institutions a trump card they can use when the state asks them to follow the rules that apply to the rest of us. Religious liberty is a fundamental American value. But in the hands of this court, it has become a weapon that employers can use to make the rest of us less free.