LGBTQ rights in the workplace. Access to abortion. Federal funding for Christian schools.
In the last week, the U. S. Supreme Court has issued major decisions on these highly-charged issues.
But there’s another decision — one that could come Thursday — that’s being watched closely by dozens of local Christian organizations, some of which have filed friend-of-the-court briefs.
The decision may help answer an important question: Who qualifies as a minister? Or as local attorneys John Wylie and Stuart Lark of Sherman & Howard phrase it: “Who qualifies as an employee carrying out ministry functions?”
Answering this question is complicated, but the urgency for an answer has risen here after the court’s decision last Friday on LGBTQ rights in Bostock v. Clayton County, Ga.
In a 6-3 ruling, the court said that Title VII of the Civil Rights Act of 1964 prohibiting sex discrimination in employment prohibits discrimination based on gender identity or sexual orientation, angering religious conservatives like Focus on the Family founder James Dobson, who called the decision “an affront against God,” an “attack against the founding framework that governs our nation," and a sign that “our country is in the midst of a spiritual war over its very heart and soul.”
The ruling did not address a tricky "ministerial" question, which leaves ministry leaders confused about how to settle conflicts between some of the most cherished American freedoms we celebrate this Fourth of July.
What should happen when an individual’s freedom from sexual discrimination at work conflicts with an organization’s freedom to require certain employees to embrace, practice, and communicate its core values and practices?
For example, whose freedoms would prevail in a case where an employee working for a ministry supporting traditional marriage between a husband and a wife comes out as gay and promotes nontraditional lifestyles?
In his majority opinion on Bostock, Justice Neil Gorsuch said the court would need to address that conflict in future rulings.
Wylie and Lark, who have spent decades guiding nonprofit organizations through such conflicts, expect the court to provide greater clarity before the justices conclude this eventful term.
“Those of us who’ve been working on religious freedom issues for years can’t remember a previous Supreme Court term with as many major cases,” said Wylie.
Our Lady and St. James
Leaders of churches and religious organizations hope the court will balance the freedoms granted to individuals in Bostock with broad freedoms for religious organizations to hold “ministerial” employees to high standards.
They hope the court does so in ruling in two cases pitting Catholic schools in California against fifth-grade teachers who were fired, and then sued the schools claiming wrongful termination.
In the two cases, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the court will decide whether the schools were justified when it did not renew the teachers’ contracts.
The teachers argued that they had been fired without cause, one claiming she was the victim of age discrimination, and the other, who has since died, claiming she was fired because she had cancer.
Because the schools claimed the teachers were employed to carry out ministry functions, and because the First Amendment gives religious organizations’ broad discretion to hire and fire such employees, the two schools are asking the court to throw out the teachers’ claims of employment discrimination.
But determining which employees perform ministry functions is complicated.
That’s why the court is trying to navigate the complex territory of who qualifies as a minister .
Pastors and priests at churches qualify, but what about church secretaries, support staff or janitors?
What about teachers at Christian schools who instruct students in reading, writing, and religion?
What about a high school football coach who says a prayer with students before practices or games?
What about employees at evangelical parachurch organizations, where the titles are corporate (CEO and director), not ecclesiastical (father or reverend).
Many local groups argue that they, not the government, should determine who carries out their missions and conveys their messages.
But opponents argue that while the ministerial exception serves important purposes for organizations, it comes at the expense of employees' rights and protections.
“It confers on religious institutions the extraordinary power to discriminate against ministerial employees on any basis whatsoever, including race, disability, sex, and age,” said the ACLU in its brief. “And this discrimination need not even be tied to religious doctrine or practice; it can be purely invidious.”
The National Women’s Law Center and more than 60 other human rights groups argue in their brief that the ministerial exception is overly broad and “invites manipulation, offering religious employers complete immunity from civil rights claims so long as they assign their employees some modicum of religion-related responsibility.”
These groups also say the “extraordinary immunity” offered to religious organizations “exacts a costly toll from employees who are denied rights of the highest order,” warning that women, people of color, older workers, workers with disabilities, immigrant workers and LGBTQ workers “will be acutely harmed if the court allows expansive immunity from civil rights protections.”
Local groups seek broad ministerial exemptions
Stuart Lark authored a friend-of-the-court brief in the Our Lady and St. James cases on behalf of a number of clients, including these Springs-based groups: the Navigators, the Catholic Diocese Of Colorado Springs, the Christian and Missionary Alliance denomination of 2,000 U.S. churches, The Orchard Alliance, which works with C&MA, and The Crowell Trust.
The brief also includes Denver-based Cherry Hills Community Church and Missions Door, and national organizations including the Evangelical Council for Financial Accountability and Fellowship of Christian Athletes.
Another law firm is representing Springs-based Young Life, and U.S. Rep. Douglas Lamborn has signed on to a brief sponsored by Utah Sen. Mike Lee and 27 other members of Congress.
The Christian Legal Society filed a brief in behalf of the National Association of Evangelicals and the Springs-based Association of Christian Schools International. Wylie and Lark have both served as leaders in the Christian Legal Society for decades.
Lark’s main argument is clear.
“Constitutional principles of religious deference and neutrality dictate a ‘ministerial exception’ that applies to all positions that define, exercise or express an organization's religious character or mission,” he wrote in his brief.
He also argues that government officials lack the competence and authority to determine which employees carry out ministerial functions.
“A religiosity test which requires government officials to determine whether an activity or job duty is sufficiently religious sets government officials adrift in a sea of subjective religious determinations,” and “will produce arbitrary and discriminatory results.”
Lark also claims that courts can’t exclude religious activities merely because they are similar to secular or commercial activities, arguing that humanitarian organizations, soup kitchens, hospitals, and educational institutions should have the freedom to determine which of their employees perform ministry functions.
Lark also argues that courts “cannot favor traditional religious positions” or beliefs over positions and beliefs that are outside of the mainstream or unpalatable to some Americans, concluding that organizations’ freedom to hire and fire employees “lies at the heart of their religious exercise and expression.”
The Our Lady and St. James decision are important for hundreds of workers for local ministries like Young Life, which each week reaches nearly 350,000 young people around the world, and the Navigators, whose motto is Life-to-Life Discipleship, and whose employees lead Bible studies.
“Many of us hope the court affirms or even strengthens the important constitutional protections that have allowed religious organizations like these to make employment decisions based on religious belief and practice for those who communicate and teach their message,” said Wylie.