Counselors and teachers at Indianapolis Catholic high schools looked to have a solid case when they sued after being fired for being married to same-sex partners. But the legal ground may be shifting beneath them.
Arguments heard Monday by the U.S. Supreme Court could result in religious schools being given a blank check for widespread employment discrimination.
“It’s important,” said Dan Conkle, a constitutional law expert at the Indiana University Maurer School of Law. “And depending on how the court decides, it could have pretty dramatic implications for parochial school teachers.”
The case heard Tuesday involves two fifth-grade teachers at California Catholic schools who said they were unjustly fired, one because of her age and the other because she needed time off for cancer treatment. The schools countered with the so-called ministerial exception, which says ministers and others who perform important religious functions aren’t covered by anti-discrimination laws.
The question is, who is and who isn’t a minister? In 2012, the Supreme Court ruled unanimously that a Lutheran school teacher who was also a trained minister was covered by the exception. But lawyers for the California teachers argued that teaching religion was a small part of their jobs and they weren’t ministers.
Conkle said the idea that religious institutions should be free to decide who serves clerical functions makes perfect sense under the First Amendment’s separation of church and state, as evidenced by the 2012 Supreme Court decision.
“But once you get into who counts as minister, it becomes much more of a problem,” he said, “not only in terms of definitions but also whether religious institutions should have absolute protection against discrimination complaints.”
In Indianapolis, Roncalli High School counselors Shelly Fitzgerald and Lynn Starkey and Cathedral High School teacher Joshua Payne-Elliott sued the schools and the Archdiocese of Indianapolis when they were fired after officials learned of their same-sex marriages. The schools and archdiocese claimed they were not covered by anti-discrimination laws because of the ministerial exemption.
The Indianapolis teachers and counselors didn’t teach religion or consider themselves ministers. But the increasingly conservative Supreme Court could broaden the exception to cover more employees of religious institutions.
From Tuesday’s oral arguments, Conkle said, it seemed likely that the court’s four liberal justices would side with the teachers and the five conservative justices would rule for the schools. But both sides were uncomfortable with the idea that courts could meddle in religion by deciding who counts as a minister.
On the conservative side, some justices seemed to favor letting religious institutions decide whom to exempt from the law. The result, said Jeffrey Fisher, attorney for the teachers, would be to strip anti-discrimination rights from hundreds of thousands of people, including lay teachers in religious schools and possibly nurses at Catholic hospitals who pray with patients.
“It could be very significant if the court decides in favor of the schools and decides broadly in their favor,” Conkle said.
Even if the court doesn’t broaden the ministerial exception, there’s another land mine laid for the Indianapolis counselors and teacher. Federal courts have split on whether Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation. Cases expected to settle the question were heard by the Supreme Court in October 2019. The court will decide both issues near the end of its term, expected in July.
For Indiana, discrimination by the Catholic schools raises policy as well as legal issues. Under the state’s voucher program, schools in the Archdiocese of Indianapolis received nearly $40 million in state tuition assistance last year.
In 2018-19, Indiana provided $161.4 million in vouchers for private schools, nearly all of them religious. Many discriminate in employment and some discriminate in enrollment on the basis of sexual orientation, religion and disability.
Regardless of how the Supreme Court rules, should we be spending taxpayer dollars on schools that discriminate?