Supreme Court Signals Support for Broad Ministerial Exception in Education

The U.S. Supreme Court on Feb. 28, 2022, denied a petition for writ of certiorari in an important ministerial exception case, Gordon College v. DeWeese-Boyd.

The religious college had appealed a 2021 decision from the Massachusetts Supreme Judicial Court that ruled against the school on an employment dispute with a faculty member. Justice Alito penned a statement on behalf of himself and three other Justices, agreeing with the denial of certiorari at this stage of the case but noting that “the state court’s understanding of religious education is troubling” on this “important question of religious liberty.” Justice Alito’s statement provides insight for religious institutions regarding the future of the scope of the ministerial exception.

Twice in the last decade, the U.S. Supreme Court has addressed the scope of the ministerial exception. In the unanimous 2012 decision Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court affirmed that the establishment and free exercise clauses of the First Amendment protect the freedom of a religious organization to control the employment of teachers engaged in ministry without interference from general employment nondiscrimination statutes. Hosanna-Tabor marked the Supreme Court’s first recognition of the doctrine widely adopted by lower courts.

The Supreme Court followed up with a 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru that clarified how a court’s determination of who is a ministerial employee at a religious school is not based on a “rigid formula” but is context-specific, focused on the role the employee served within the religious organization. The Court in Our Lady of Guadalupe provided the following direction to lower courts: “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”

In Gordon College, the highest court in Massachusetts held that Gordon College sociology professor Margaret DeWeese-Boyd was not covered by the ministerial exception, noting that DeWeese-Boyd did not “undergo formal religious training, pray with her students, participate in or lead religious services, take her students to chapel services, or teach a religious curriculum.” Although the court recognized that she was required to “integrate the Christian faith into her teaching, scholarship, and advising,” it distinguished that integrated teaching from religious instruction. The school sought review of that holding in the Supreme Court.

Justice Alito’s statement criticized the Massachusetts Supreme Judicial Court for holding that DeWeese-Boyd was not covered by the ministerial exception because, although she was required to integrate her faith into her teaching, scholarship, and student advising, she did not “teach religion, the Bible, or religious doctrine.” Justice Alito found this to be a “troubling and narrow view of religious education.” He explained, “What many faiths conceive of as ‘religious education,’ includes much more than instruction in explicitly religious doctrine or theology.”

Justice Alito emphasized several factors that weighed in favor of a determination that the faculty of Gordon College, even outside the theology and ministry departments, are covered by the ministerial exception:

• The college’s bylaws state that it “strives to graduate men and women distinguished by intellectual maturity and Christian character.”
• The bylaws describe the college as “a Christian community of the liberal arts and sciences” that “is dedicated to” a set of principles related to integrated spiritual and intellectual scholarship and education.
• The college asks each member of the faculty to integrate faith and learning “to help students make connections between course content, Christian thought and principles, and personal faith and practice.”
• The college requires its faculty to sign a “Christian Statement of Faith,” which includes endorsements of specific Christian doctrines.
• The faculty handbook explains that the college’s professors are expected to “engage students in their respective disciplines from the perspectives of Christian faith” and “to participate actively in the spiritual formation of its students into godly, biblically-faithful ambassadors for Christ.”
• The faculty handbook states that the most important task of the “Christian educator” is the “integration” of faith and learning.

Justice Alito also noted the following facts that would support a finding that DeWeese-Boyd in particular is covered by the ministerial exception:

• Her application for employment at Gordon College acknowledged her “personal agreement with Gordon’s Statement of Faith, stated her Christian beliefs, described her pilgrimage as a Christian, [and] explained how her Christian commitment affected her scholarship.”
• Her application mentioned her overseas Christian missionary work and indicated that she had earned an advanced degree in theology.
• Her application for tenure included a paper titled “Reflections on Christian Scholarship” that discussed her “integration of the Christian faith into her work.”
• A subsequent application for promotion explained she believed the “work of integration” required “pursuing scholarship that is faithful to the mandates of Scripture, the vocational call of Christ, and the dictates of conscience.”
• Student evaluations included in her application for promotion stated that she “did a great job of connecting class materials with Christian faith” and “calling our thoughts to a higher level of Christian responsibility.”

Despite his criticisms of the narrow application of the ministerial exception, Justice Alito acknowledged that the case’s procedural posture weighed against Supreme Court review. The Gordon College case was before the U.S. Supreme Court on interlocutory appeal, and Justice Alito reasoned that it was at least unclear whether the Massachusetts court’s decision qualified as a “final judgment” reviewable by the Supreme Court. Justice Alito noted, however, DeWeese-Boyd’s concession that, if she were to ultimately prevail in the trial court, nothing would preclude the college from again seeking Supreme Court review.

Private religious schools and institutions, especially colleges and universities, should carefully study the factors in Justice Alito’s statement. Religious institutions of higher education that desire to protect the employment relationship for teachers and other employees who serve in ministry can learn from examples of the factors four Justices found meaningful.

In particular, establishing the religious character of a teaching position before there is an employment dispute will strengthen a future ministerial exception claim. While it is well established that the ministerial exception applies to employees beyond formal ministers or clergy, it is not always obvious to courts which positions are sufficiently religious in nature to fall under the protection of the religion clauses of the First Amendment. As a result, religious institutions that are not proactive in this area risk losing the protections the ministerial exception provides.

Institutions of higher education may do well to consider how to articulate and express the religious value and importance of teaching positions in ways consistent with Justice Alito’s statement and recent Supreme Court decisions. For questions related to the ministerial exception or for other matters related to faith-based educational institutions, please contact any of the authors of this alert.

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