Supreme Court Offers 'Glimmer of Hope' on Religious Freedom After Disastrous Trans Ruling

The U.S. Supreme Court building, Wikimedia Commons, Daderot.

On Wednesday, the U.S. Supreme Court ruled that courts cannot second-guess the employment decisions of religious schools. In a 7-2 decision, the Court upheld the right of two Roman Catholic parochial schools in Los Angeles to fire two fifth-grade teachers whose performance the schools found unsatisfactory. The decision expanded the so-called “ministerial exemption” to federal employment law, allowing religious schools broad discretion in hiring and firing religious teachers. This ruling provides some hope after the Court unilaterally inserted transgender activism into federal law just last month.


“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate,” Justice Samuel Alito wrote in Our Lady of Guadalupe School v. Morrissey-Berru (2020).

“State interference” in the matters of faith and doctrine “would obviously violate the free exercise of religion, and any attempt by government to dictate or even to influence such matters would constitute one of the central attributes of an establishment of religion. The First Amendment outlaws such intrusion,” Alito added. Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh joined the opinion. Thomas filed a concurring opinion, which Gorsuch joined. Justice Sonia Sotomayor filed a dissent, which Justice Ruth Bader Ginsburg joined.

The Supreme Court reversed the Ninth Circuit Court of Appeals’ ruling against the schools. The Ninth Circuit strictly followed the Supreme Court case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) to apply a “rigid formula” on the ministerial exemption. In that case, the Court ruled that the Lutheran school was within its rights to fire a teacher under the ministerial exemption because: (1) the teacher held the title of minister, (2) her position reflected “a significant degree of religious training followed by a formal commissioning,” (3) she held herself out as a minister of the church, and (4) her job duties reflected a role in carrying out the church’s message and mission.


While the two cases in Our Lady of Guadalupe did not meet such a test, Alito argued that the Court in Hosanna-Tabor “did not announce ‘a rigid formula’ for determining whether an employee falls within this exception.” Instead, the Court “identified circumstances that we found relevant in that case.” In fact, the ruling including an “admonition” that the Court was “not imposing any ‘rigid formula.'”

“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 responsibilities that lie at the very core of the mission of a private religious school,” Alito explained. “As we put it, [Cheryl] Perich had been entrusted with the responsibility of ‘transmitting the Lutheran faith to the next generation.'”

The Court noted that transmitting the faith to the next generation is a central religious role in Catholic, Protestant, Jewish, Muslim, Mormon, and Seventh-Day Adventist traditions. As for the two teachers in this case, “there is abundant record evidence 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 specified 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 responsibility.”


Justice Thomas wrote a concurring opinion, insisting that “what qualifies as ‘ministerial’ is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.”

Meanwhile, Sotomayor condemned Alito’s approach as having “no basis in law” and argued that it “strips thousands of schoolteachers of their legal protections.” In these cases, one teacher claimed that she was fired due to her age and the other claimed she was fired because she requested leave for breast cancer treatment.

Religious freedom firms hailed the decision.

“As the Supreme Court has made clear in the past and has now made clear again, the First Amendment bars the government from interfering with a religious group’s employment decisions regarding its ministers,” John Bursch, senior counsel at Alliance Defending Freedom (ADF), said in a statement. ADF filed a friend-of-the-court brief in the case.

“The court’s decision today clears up disagreements in the lower courts about the right way to define ‘minister,’ concluding that any definition should be primarily based on the religious functions an employee is asked to perform as defined by those qualified to make that judgment: the religious groups who know their faith best,” Bursch added. “In so doing, the court has respected the autonomy of faith-based schools and prevented the government from interfering with the internal operations and autonomy of religious organizations.”


“There should no longer be any doubt that religious schools and institutions have the right to freely choose who will preach their religious message, teach their religious doctrine, and lead our future generations according to their religious tradition,” Kelly Shackelford, president, CEO, and chief counsel for First Liberty Institute, said in a statement.

“Today’s Supreme Court decision confirms that government has no business second-guessing the selection of religion teachers at religious schools,” Dr. Grazie Christie, policy advisor for The Catholic Association, insisted. “Like other church leaders who minister to believers, religion teachers impart a love and understanding of the faith to their young students. Their work is at the heart of a church’s mission to pass on the faith to future generations.”

“It is a clear win for the First Amendment and religious liberty when the highest court affirms the right of religious institutions to be free of government interference and meddling,” Christie added.

Tony Perkins, president of Family Research Council (FRC), noted the importance of the ministerial exemption following the disastrous Supreme Court decision in Bostock v. Clayton County (2020), which redefined “sex discrimination” in federal law to include “discrimination on the basis of sexual orientation” and “discrimination on the basis of gender identity.”

“Despite the egregious decision in the recently-decided Bostock v. Clayton County case, today’s First Amendment decision suggests that religious institutions still have a prayer of preserving and promoting their biblical teachings when it comes to employment decisions,” Perkins said in a statement. “This tiny step is far from sufficient, but it does offer a glimmer of hope that the Supreme Court has not forgotten that religious freedom is the most fundamental right of all.”


In his dissent in Bostock, Alito warned that the wholesale redefinition of sex discrimination in federal law will create problems in bathrooms, women’s sports, housing, religious employment, health care, freedom of speech, and legal cases involving constitutional claims. Our Lady of Guadalupe helps address one of those seven areas of concern.

In Bostock, the Supreme Court effectively made law. In Guadalupe, it protected religious freedom, expanding the ministerial exemption in a way that helps limit the negative effects of Bostock. But Perkins is right — this “glimmer of hope” falls far short of protecting Americans from the devastating ramifications of Bostock.

Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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