Do Catholic schools have the right to insist that teachers they hire help promote the Church’s mission and refrain from contradicting Catholic teachings in the classroom and in their public actions?
This question is part of the battle increasingly being waged against the authority of religious employers to carry out their faith in the public square. This is true across the country, including California, where the Archdiocese of San Francisco as well as the dioceses of Santa Rosa and Oakland have faced some resistance to their efforts to support the Catholic identity of their schools.
Earlier this year, for example, Archbishop of San Francisco Salvatore J. Cordileone proposed new language in teacher contracts that Catholic schools “exist to affirm and proclaim the Gospel of Jesus Christ as held and taught by his Catholic Church.” The proposed language affects four archdiocesan high schools where the teachers belong to a union and are negotiating a collective bargaining agreement.
Debates often erupt when dioceses try to clarify what is unquestionably a constitutional right.
Known as the “ministerial exception” to employment laws, churches and other religious groups are free to employ people who serve as role models and help carry out the religious mission of the organization without interference from government. Courts around the country have applied the ministerial exception beyond clergy, for example, to choir directors.
In what the Wall Street Journal called the “most important religious liberty case in a half century," the U.S. Supreme Court, in a 9 to 0 2012 decision, upheld the "ministerial exception.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC involved a church that fired a “commissioned minister,” who taught third and fourth grades in its school and led occasional devotional services, for insubordination and disruptive conduct. She sued, charging employment discrimination. The lower courts found unanimously that ministers cannot sue their churches due to the “ministerial exception.”
The U.S. Court of Appeals for the Sixth Circuit, however, while recognizing the exception, ruled that the plaintiff could not be treated as a ‘minister’ because her duties were not primarily involved in teaching the faith.
The Supreme Court disagreed. Chief Justice John Roberts, writing for the unanimous Court, stated that the Constitution's Free Exercise and Establishment clauses bar the government from interfering with a church's decision to fire a minister. “Such action,” he said, “interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs" as well as "the right to shape its own faith and mission through its appointments."
Further, the Court dismissed as an “extreme position” the plea of the U.S. Equal Employment Opportunity Commission’s to limit any “ministerial exception” solely to workers who perform “exclusively religious functions.” Court rulings dating back to 1872, Roberts noted, “confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.”
In short, a denomination may determine which employees are deemed a “minister,” within its “internal definition,” Lyle Denniston wrote on SCOTUS blog, the primary website for experts monitoring the Supreme Court. The employee can be “anyone from the congregational leader, on down to any worker considered to be advancing the religious mission.”
Defending the ministerial exception as it relates to religious employers at a recent State Assembly hearing, Jeffrey Berman, an attorney with Seyfarth Shaw LLP of Los Angeles, said that, “Teachers qualify because they are role models in fulfilling the religious mission of the school.”
The Court’s ruling applied only to employment discrimination claims and did not address any other type of lawsuit by a church employee, such as claims relating to breach of contract. Indeed, Archbishop Cordileone has assured teachers that those employee rights would not be abrogated by the proposed contract language and a grievance procedure will be retained.
In a letter earlier this year to teachers, he also made it clear that the intent of the updated language was “not to target for dismissal from our schools any teachers, singly or collectively.” He said separately that some staff and teachers – Catholic or non-Catholic – may not agree with all that the Catholic Church teaches, nor is that necessarily required.
At the same time, he wrote, we must acknowledge the “tremendous pressure the contemporary culture places on everyone to conform to a certain agenda at variance with, and often aggressively so, our Christian understanding of the human person and God’s purpose in creation ... As teaching institutions, therefore,” he said, “Catholic schools have to be very clear about what constitutes the true teachings of the Catholic Church. They owe that to the teachers, to the students, and to the parents of the students."
Archbishop Cordileone summed up the issue succinctly in a reply to a group of Democratic lawmakers who wrote him objecting to his efforts.
“Would you hire a campaign manager who advocates policies contrary to those that you stand for and who shows disrespect toward you and the Democratic Party in general?” the archbishop replied. “My point is,” he added, “I respect your right to employ or not employ whomever you wish to advance your mission. I simply ask the same respect from you.”