The Supreme Court’s misguided and unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC continues to wreak havoc on Catholic schoolteachers. Because of the opinion, San Francisco schoolteachers are fighting to maintain minimum employment rights.
Justices Ginsburg, Breyer, Sotomayor and Kagan should have anticipated that Hosanna-Tabor would become a weapon in the war against reproductive freedom. Justice Kennedy should have foreseen that Hosanna-Tabor would undermine LGBT rights and marriage equality. Justice Scalia should have ruled that Catholic schools must obey neutral laws of general applicability. All nine Justices should have understood that free speech would be silenced in religious institutions.
Instead, the Justices handed religious employers a blank check, which the Catholic bishops are now cashing in big numbers. The teachers’ situation confirms the blind spot that all the Justices have on matters of institutional religious freedom. They refused to see the harm in unchecked ecclesial power. Now Catholic schoolteachers bear the brunt of the decision.
Hosanna-Tabor involved a Lutheran grade school teacher, Cheryl Perich, whose employer refused to rehire her after she took sick leave during the school year. Perich should have won her lawsuit against the school for disabilities discrimination under the Americans With Disabilities Act. However, the Court ruled unanimously that because Perich was a minister, the First Amendment barred her lawsuit against her employer.
Anyone with common sense can easily spot the non sequitur—because she is a minister Hosanna-Tabor can discriminate against her on the basis of disability. What? Hosanna-Tabor had no religious belief in disabilities discrimination. Moreover, its employment handbook announced its conformity to the antidiscrimination laws. Nonetheless, the Court foolishly ruled that the First Amendment kept Perich from her day in court.
The opinion left two small openings for employees’ rights. First, who qualifies as a “minister” was treated as a factual question that needed to be decided case-by-case taking into account the employee’s circumstances. Second, employees could pursue breach of contract claims against their religious employers.
These openings have resulted in a few small victories for fired Catholic schoolteachers. Both Emily Herx and Christa Dias won jury verdicts after they were fired for using in vitro fertilization in violation of church teaching. The courts rejected their schools’ arguments that Herx, a language teacher, and Dias, a computer technology instructor, were ministers.
Across the country, numerous Catholic schoolteachers have already been fired for being gay, marrying a same-sex partner, announcing public support for a same-sex marriage, being in a gay relationship, or using in vitro fertilization. Those who can prove they are non-ministers have a chance at winning a breach of contract claim.
Now, in order to close the Hosanna-Tabor loopholes, Catholic dioceses around the country are ordering their employees to sign contracts acknowledging they are ministers.
San Francisco’s archbishop is not only asking all teachers to sign “minister” contracts but also adding language to the faculty handbook binding all teachers to the church’s teachings on sexual morality. Even non-Catholic teachers are to be treated as ministers and held specifically to the standards to “affirm and believe the Church’s teaching about the sinfulness of contraception, affirm and believe that the fundamental demands of justice require that the civil law preserve the definition of marriage as the union of one man and one woman, and affirm and believe the grave evil of artificial reproductive technology.”
The archbishop dishonestly claims that “the intention underlying this document is not to target for dismissal from our schools any teachers, singly or collectively, nor does it introduce anything essentially new into the contract or the faculty handbook.” The only reason to change the contract language is to make it easier to fire teachers under Hosanna-Tabor. The only purpose of the new contracts is to block employees from civil rights and rob them of any right to legal redress.
Fortunately, local legislators, parents and students in the City of Saint Francis are fighting back, wondering what happened to the new tolerance allegedly promoted by Pope Francis. On Ash Wednesday, students and parents protested the archbishop’s actions at the local cathedral.
Bay Area lawmakers unanimously sent a letter urging the archbishop to withdraw the changes. The archbishop’s actions, they wrote, are in “conflict with settled areas of law and foment a discriminatory environment in the communities we serve.” The archbishop’s action “effectively removes civil rights protections guaranteed to all Californians,” including the “freedom to choose who to love and marry, how to plan a family, and what causes or beliefs to support through freedom of speech and association.” The Church’s position “would be illegal for any other employer,” and “goes beyond regulating behavior in the workplaces and infringes upon the personal freedoms” of employees.
Unfortunately, the archbishop is already pushing back and rejecting the legislators’ suggestions.
The Ministerial Exception
The California lawmakers had the right idea when they wrote “the narrow exception for ‘ministers’ in federal anti-discrimination law was never intended to be a tool for discrimination.”
Now the lower courts need to follow that principle when they interpret Hosanna-Tabor. What the archbishop is proposing for his employees should be illegal even under Hosanna-Tabor for two reasons.
First, contracts whose only purpose is to avoid civil litigation and undermine employees’ constitutional rights should be void as a matter of public policy.
Second, constitutional rights should enjoy more protection than statutory ones. Perich lost her statutory disabilities claim to the ministerial exception. Courts should be reluctant to rule that an employer’s First Amendment religion claim always trumps employees’ constitutional rights to marry, to speak, to bear children, to sexual privacy, and to freedom of association, as the archbishop is proposing in San Francisco.
Hosanna-Tabor is a bad decision. But there is still time for employees and legislators to push back against its worst implications, and for the courts to narrow its reach in order to keep employees’ constitutional protections alive.