This editorial appeared in the Los Angeles Times.
The Supreme Court has agreed to hear two cases from California in which teachers who lost their jobs at Catholic schools sued the schools under federal anti-discrimination laws. At first glance, the cases might seem to pose a novel and difficult question: whether freedom of religion guaranteed by the First Amendment can override laws against bias in the workplace.
But appearances are deceiving. The justices already addressed that issue in 2012 when they unanimously held that a religious school may not be sued over personnel decisions involving employees who are expected to “personify its beliefs” — even if those workers aren’t being employed as priests or pastors.
So teachers of religion or other employees involved in religious instruction, for instance, can be fired and will not have recourse to anti-discrimination laws. One the other hand, employees whose duties are entirely secular would be able to challenge their termination.
The issue raised by these new cases is how lower courts should interpret that decision.
The answer, in our view, is “generously,” even though we acknowledge that it could result in unjust outcomes. A woman could be denied a job as a Catholic school teacher — or a disabled Hebrew school teacher could be fired — without recourse to the anti- discrimination protections they would receive in other settings. But as all nine Supreme Court justices noted in 2012, that’s the price that we pay if we want to maintain a separation between religious institutions and government.
In this new case, however, the court also must reiterate clearly that employees of a church school whose duties are totally secular can go to court to allege discrimination on the basis of race, age, gender or disability.
The 2012 decision involved a teacher dismissed by a Lutheran school who challenged her termination under the Americans With Disabilities Act. She said she was fired because she had suffered from narcolepsy.
Writing for the court, Chief Justice John G. Roberts Jr. said religious organizations, including schools, enjoy a “ministerial exception” to anti-discrimination laws that is grounded in the First Amendment’s protection of freedom of religion.
“Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision,” Roberts wrote. “Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”
The court needs to insist that the ministerial exception doesn’t prohibit anti-discrimination lawsuits by employees of religious schools who aren’t responsible for imparting the faith — teachers who engage in no religious duties as well as such employees as janitors, secretaries and food-service workers.