In Our Lady of Guadalupe School v. Morrissey-Berru, 591 U.S. ___ (2020), the Supreme Court, in a seven to two decision, expanded the so-called ministerial exception to employment laws. In a sense, the decision is a victory for Christians (and, indeed, believers of any stripe), especially in the wake of the expansion of Title VII in Bostock v. Clayton County. The flexible, totality-of-the-circumstances standard announced by the Court will undoubtedly provide ample protection to Catholic schools. But it is worth considering the distinction between the majority’s test and the approach advocated by Justice Clarence Thomas in his concurrence, especially if one rightly views “religious liberty” as the wrong way to think about these issues.
After the disappointments of Bostock and June Medical Services v. Russo, the Court’s decision in Our Lady of Guadalupe came as a welcome relief. (Likewise the decision in the Little Sisters of the Poor case, while it does not guarantee victory for the Little Sisters, was welcome.) And there is much to admire in the Our Lady of Guadalupe decision. To be sure, it expands the Court’s ministerial exception, articulated in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171, 132 S. Ct. 694 (2012). Justice Alito’s majority opinion—joined by six other Justices—takes a straightforward approach to the questions in Our Lady of Guadalupe. Indeed, given some of the fractured, complicated decisions of the last few weeks, the clarity of Our Lady of Guadalupe is itself a welcome relief.
To take one example: the ruling in Our Lady of Guadalupe stands in contrast with the decision late last month in Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020). The five-four decision in Espinoza is hard to understand in the light of the facts and the law in that case. One would not have imagined that there would be much dispute over the Blaine Amendments, though one would would (apparently) be wrong. By the same token, one would not have imagined that there would be much dispute over Our Lady of Guadalupe in light of Hosanna-Tabor, notwithstanding the Ninth Circuit’s crabbed application of Hosanna-Tabor. And, this time, one would be right. (Which makes Espinoza a little harder to understand.)
Certainly there is nothing wrong with celebrating a good outcome for churches and church-run institutions throughout the United States. One might even think that the Court has tried to strike a balance this term with Bostock and Our Lady of Guadalupe: expanding Title VII protections and expanding the exception for churches. Some might well celebrate this balance as the best compromise available. Gregory Caridi’s excellent post here demonstrates the dangers of that thinking, however. Religious liberty is at bottom a refuge granted to people—or institutions—that have lost the political debate. On the other hand (and in fairness), my piece on Gratian’s D.10 c.1 demonstrates (I think) that the Church has never turned up her nose at a gift like the holding in Our Lady of Guadalupe. To understand why, it is necessary to look a little more closely at the Court’s opinion and the concurrence.
In Our Lady of Guadalupe, Justice Alito proposes a flexible test, not bound by the specific facts and circumstances of Hosanna-Tabor. A court has to look to what an employee actually does—and how that is understood by the church—to determine whether or not the ministerial exception applies. This is, to a great extent, an intuitive standard. The Ninth Circuit proposed a rigid, mechanical approach, relying on the specific facts of Hosanna-Tabor as a checklist. However, Justice Thomas, joined by Justice Gorsuch, proposed a broader test that would defer to a church’s good-faith claims as to who is or is not a minister. There may not ultimately be too much daylight between how Justice Alito’s test and Justice Thomas’s test would cash out. Certainly there would be in many cases, as the dissent shows, a claim that the ministerial exception was being invoked in bad faith, which would likely lead to the sort of analysis that the Court’s opinion anticipates.
In the Catholic context, at any rate, it is hard to see that there is a lot of difference between the facts emphasized by the majority and the standard Justice Thomas calls for. The Second Vatican Council’s Declaration on Christian Education Gravissimum educationis emphasizes that Christian education is inextricably bound up with baptism and the duties of Christians both in the temporal and spiritual orders. See Our Lady of Guadalupe, 591 U.S. at ___, slip op. at 21–22. Additionally, the Council reaffirmed the traditional teaching that Catholics have an obligation to send their children to Catholic schools where those schools are available. All of this is to say that the Church’s teaching provides the sort of background that contributed to the favorable ruling in Our Lady of Guadalupe.
The fact that the majority’s approach and Justice Thomas’s approach cash out in more or less the same way practically ought not to be disregarded, though. The Church’s traditional teaching is that the civil authorities simply do not have jurisdiction in ecclesiastical affairs. Gratian shows that this is a principle of great antiquity (e.g., D.10 c.3, c.5). More than that, the two famous bulls of Boniface VIII, Ausculta fili and Unam sanctam, make it clear—and in a dogmatic dimension—that the Church has jurisdiction over the temporal authorities and not vice versa (Digard et al., eds., Les Registres de Boniface VIII, nos. 4424, 5382). One may fairly ask, therefore, whether Justice Thomas’s approach more carefully respects the superior jurisdiction of the Church insofar as it would prohibit subjecting the Church to an inquiry regarding its employees’ duties carrying out a task that the Church clearly believes to be an integral part of its mission in the world. At the very least, Justice Thomas’s approach is more consistent with the teaching of Boniface VIII that the state holds its power at the sufferance of the Church.
All of this is connected with Caridi’s point, I think. Religious liberty represents an escape valve for courts that have accepted the claim of neutral laws. But it is not an escape valve without consequences. As Caridi notes, religious liberty creates private spaces, which in turn leads to religious leaders thinking in mostly private terms, eschewing political and political claims in favor of purely private religion. One could also argue, following Carl Schmitt’s 1960 essay, The Tyranny of Values, that the endless devaluation and revaluation, the endless war of all against all, especially in this context, is the inevitable consequence of value philosophy as opposed to properly metaphysical—and, therefore, properly political—thought. We see here, however, another consequence, in which religious liberty ultimately results in a denial of the Church’s own understanding of her jurisdiction, which is conferred upon her by Our Lord. There is, to put it another way, an inversion here: the Church has to claim an exception from the state’s all-encompassing jurisdiction, as opposed to the state acknowledging the Church’s superior jurisdiction. Justice Thomas’s approach would go a little farther than the Court’s approach in preserving that understanding (or at least respecting it).
However, one ought to keep in mind the fact that Our Lady of Guadalupe involves statutory rights of action and administrative agencies. Nothing prohibits Congress from adopting a broader ministerial exception, more in keeping with Justice Thomas’s approach. Nothing prohibits President Trump—or some future president—from appointing EEOC commissioners who will adopt policies within the agency consistent with such an approach. Likewise, nothing prohibits the Church from accepting the favor of the civil law while maintaining that the temporal authorities are without jurisdiction over the Church.
Pat Smith
