On the heels of the recent U.S. Supreme Court decision affirming that religious schools are largely exempt from most employment discrimination claims, some fear the ruling is concerningly broad and affords churches a blanket license to show prejudice.
The Supreme Court in its 7-2 decision (Our Lady of Guadalupe v. Morrissey-Berru; St. James School v. Estate of Kristen Biel) upheld and expanded what it calls “ministerial exception,” which shields religious schools when it comes to the enforcement of antidiscrimination laws. Under ministerial exception, staff members who teach religion in just about any capacity are considered “ministers” and therefore not able to sue.
“The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” Associate Justice Samuel Alito wrote in the majority opinion. “Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.”
Associate Justice Ruth Bader Ginsburg, who joined fellow Associate Justice Sonia Sotomayor in dissenting the decision, asserted that the court’s ruling gave the schools “free rein to discriminate.”
Lynn Starkey was a guidance counselor at Roncalli, a Catholic high school in Indianapolis, where she worked for nearly four decades. Last spring, Starkey — a 2009 state teacher of the year honoree — was told by the archdiocese that her contract would not be renewed after it came to light she was married to a woman, according to a complaint filed in federal court in Indianapolis.
In August, another female guidance counselor, Shelly Fitzgerald, married to a woman was also put on leave and ultimately fired. Both women separately sued the Archdiocese of Indianapolis.
Kathleen DeLaney, the Indianapolis attorney representing Starkey, said in an interview with the Legal Examiner that she wasn’t overly concerned that the high court’s ruling would have any real effect on her client’s case, pointing to the fact that Starkey did not teach religion or theology.
“I’m not overly concerned about the cases I’m currently working on, but globally as a former Catholic, (the ruling’s) very disturbing,” DeLaney said. “Basically the Catholic Church and other institutions have been moving very strategically toward ultimate immunity from suit. They want courts to say they’re above the law. That’s where they’re headed.”
“And incrementally,” she added, “the Supreme Court took another step in that direction.”
In 2014, DeLaney represented a woman, Emily Herx, who successfully sued the Diocese of Fort Wayne when she lost her job as a teacher at St. Vincent de Paul School after she attempted to become pregnant via in-vitro fertilization. A jury awarded Herx $2 million.
Herx was fired because the church deemed her decision to pursue in-vitro as going against the teachings of the faith.
Had last week’s Supreme Court ruling on ministerial exception preceded Herx’s jury trial, DeLaney said, “I don’t know if we would’ve prevailed.”
Elsewhere, in Palm Bay, FL, Monica Toro Lisciandro, 38, was fired last fall from her job as a theater teacher at Covenant Christian School after administrators learned she’s gay.
Lisciandro told the Legal Examiner that she lost her job after a parent from the school told school officials she had attended a local LGBTQ Pride celebration.
Though the former teacher has not brought legal action against the school, she said she is assessing her options, adding that last week’s ruling adds even more uncertainty into the equation.
“It’s just so scary to think that we can guise our discrimination against or behind religion,” Toro Lisciandro said. “For me, to be honest, it’s really hard because I am a Christian, and I didn’t want to go after the school in that way. And so it has been a really kind of tricky road to maneuver in what’s the right thing to do for me.”
Andrew Koppelman, a political science professor specializing in First Amendment law at Northwestern University’s Pritzker School of Law, said that while the court’s decision undoubtedly expands ministerial exception, there remains some wiggle room.
Prior to the high court’s decision, for example, Koppelman wondered whether the scope of ministerial exception would be broadened to the point where virtually any staff member at a religious institution would be considered a minister or teacher of the faith.
“There clearly are folks who want to go in that direction,” Koppelman said. “And they haven’t gone there yet.”