Refusing Even to Decide?

Both last week's NLRB decision and a case before the Supreme Court, writes Patrick Hornbeck, focus on one query: What kind of questions can courts constitutionally ask about faculty at religiously affiliated educational institutions?

June 23, 2020

This spring has been the season for disputes about the rights of employees at religiously affiliated institutions of education. These disputes revolve around a common core: What kinds of questions about religious schools, colleges and universities -- and specifically about the religious functions of their employees -- does the U.S. Constitution permit courts to ask?

Advocates for religious schools and colleges in Kansas and California have given conflicting answers. They can’t have it both ways.

  • In Kansas, two faculty members filed a charge of unfair labor practices against Bethany College, a Lutheran institution. Recently, in a move that was expected but still earthshaking, the National Labor Relations Board ruled that it lacked jurisdiction over the case. The decision, signed by three NLRB members all appointed by President Trump, overturned a 2014 ruling in which the board had ruled that it could exercise jurisdiction over faculty at religious institutions who do not perform “a specific religious function.” Under the test announced yesterday, wherever an institution holds itself out as religious, is a nonprofit and is religiously affiliated, the First Amendment exempts it from the NLRB’s oversight.
  • In California, teachers at two Catholic elementary schools claimed that they were fired for legally impermissible reasons: one because of a cancer diagnosis that rose to the level of a disability, the other because of age. The schools have argued that they merit categorical immunity from discrimination laws with regard to employees who perform “important religious functions.” The Supreme Court heard oral argument in these cases in May, and a ruling is expected within weeks.

These disputes implicate different aspects of First Amendment law. In the Bethany College case, the NLRB drew largely on a 1979 Supreme Court case involving the doctrine of “entanglement.” In short, courts are not constitutionally empowered to peer too closely into the internal workings of religious institutions, especially if Congress does not explicitly direct them to do so.

The California Catholic schools pointed instead to the “ministerial exception,” a separate strand of First Amendment jurisprudence that affords religious institutions such freedom in choosing who personifies their teachings that antidiscrimination laws, even laws against race and sex discrimination, do not apply to the selection of employees that courts deem ministerial.

These two sets of ideas have evolved over time. By limiting the authority of judges and administrative agencies where religious institutions are concerned, they aim to preserve institutions’ freedom to govern themselves. Not a few religious liberty scholars have gone so far as to label this overarching concept the doctrine of “church autonomy.”

But some religious libertarians want to have their cake and eat it, too. In the Kansas and California cases, advocates for the religiously affiliated schools staked out two very different positions. Agreeing with Bethany College, the NLRB held yesterday that it could not hear its employees’ complaint because even to ask the question “whether faculty members at religiously affiliated institutions of higher learning are held out as performing a specific religious function entails an impermissible inquiry into what does and what does not constitute a religious function.” The California schools argued the opposite before the Supreme Court, insisting that whether an employee performs “important religious functions” is precisely the question courts should ask to determine whether the law should treat that employee as a minister, exempt from antidiscrimination protections.

What’s at stake in this thicket of constitutional law is the peace of mind and the job security of tens of thousands of faculty members who teach at religiously affiliated colleges and universities. To the extent the NLRB refuses to exercise jurisdiction, or that courts permit institutions to hire and fire entirely at will, faculty members who teach everything from chemistry to history to social work will lose some of the basic protections of labor and employment law. LGBTQ faculty could be vulnerable even despite the Supreme Court’s blockbuster decision last week, since First Amendment protections supersede antidiscrimination laws.

Judges owe it to these faculty, at minimum, to be consistent. If courts decide the First Amendment permits them to inquire into the particulars of employees’ religious functions in discrimination cases, but not in labor relations cases, that would be unjust. Either such questions are out of bounds and religious institutions’ employment practices are categorically immune from oversight, or courts should be able to exercise discretion in determining whether the facts of a particular case require them to defer to a particular employer.

Drawing the Line

If last month’s oral arguments in the California cases are anything to go by, the NLRB may have gotten ahead of the Supreme Court in choosing the former path. Many of the justices’ questions had to do with how courts should go about distinguishing ministerial from nonministerial employees -- not with whether courts have any business making such distinctions in the first place. U.S. appellate courts have developed different standards after the Supreme Court formally recognized the ministerial exception in a 2012 case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Most of the time, courts have looked to whether an employee was or was not performing religious functions. But the Ninth Circuit, from which the California cases emerged, has required that there also be some objective indicator of an employee’s status as a minister, say, a job title, educational and training requirements, or how the employee identifies herself.

The Supreme Court is expected to rule in the California cases later this term, and it is unclear whether the justices will affirm the Ninth Circuit’s approach or adopt the approach of the other appellate courts. But what both approaches have in common is that they don’t just permit, they actually require courts to determine whether an employee’s role entails religious functions. Even the Trump administration, which took the side of the institutions, did not tell the court it lacked jurisdiction in this area. There is “a pretty defined set” of duties that are identifiably religious, the solicitor general’s representative argued, “so it’s not going to be an exceptionally indeterminate analysis.”

And this is common sense. While it’s clearly not the province of secular courts and administrative bodies to resolve questions about theology or ministry, courts do not and must not avert their gaze from everything that happens inside religious schools, colleges and universities. Using the same principles that they employ in disagreements among secular parties, courts routinely resolve property disputes, contract disputes and tort claims involving religious institutions -- including, increasingly in recent years, cases involving clergy sexual misconduct.

In last week’s decision protecting LGBTQ employees from employment discrimination, religion was, as Justice Stephen Breyer put it, “the elephant in the room.” But just as in other areas of the law, courts should be able to employ neutral principles in resolving labor disputes at religiously affiliated institutions, except in those instances where the nature of an employee’s functions requires that an employer receive special, deferential treatment. Reasonable people can disagree how and where to draw that line, but it’s a whole other matter to refuse to draw any lines at all.


Patrick Hornbeck is chair and professor of theology at Fordham University, where he is also a J.D. candidate at Fordham Law School.


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