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Published in NH Bar News(4/21/2021)
In the past several years a number of religious accommodationcases have reached the U.S. Supreme Court, an interesting trendwhere the religious beliefs and rights of individuals andbusinesses conflict with other fundamental rights of employees,students, and even the public. The cases have receivedtremendous publicity and have stirred rancorous debate inclassrooms, bar rooms, and on talk radio. The social mediasoundbites, however, sometimes miss the subtle and not-so-subtlelegal arguments along this collision course.
In 2014, the Supreme Court decided the case of Burwell v.Hobby Lobby Stores, Inc., 573 US 682 (2014) ruling that HobbyLobby's owners' religious beliefs trumped theiremployees' rights to health insurance coverage forcontraception as required by the Affordable Care Act. TheCourt ruled 5-4 that the Religious Freedom Restoration Act of 1993allowed the for-profit company to deny this coverage to itsemployees.
This was followed by Masterpiece Cakeshop, Ltd. v. ColoradoCivil Rights Commission, 584 US ___ (2018), a 7-2 decisionwhich permitted a bakery owner to refuse to bake a cake for a gaycouple's wedding. However, rather than deciding whetherfree exercise or free speech rights are violated by forcing abusiness to provide services to a couple with whose lifestyle theowners do not agree, the Court ruled for Masterpiece Cakeshopconcluding that the Colorado Civil Rights Commission demonstratedimpermissible hostility to religion in finding in favor of thecouple. Noteworthy is that by this time the Supreme Court hadaffirmed in Obgerfell v. Hodges, 576 U.S. 644 (2015) thatgay couples have the fundamental right to marry.
Supreme Court scholar Erwin Chemerinsky in his analysis ofMasterpiece Cakeshop opined that "allantidiscrimination statutes pose a tension between equality andliberty." More precisely, "Is a business'sfreedom to choose its customers [or employees] more important thanthe government's interest in stopping sexual orientationdiscrimination?"
By 2020, the Court had also decided Bostock v. ClaytonCounty, GA, 140 S.Ct. 1731 (2020) ruling that Title VIIprohibits employment discrimination based on lesbian, gay, bisexualand transgender (LGBTQ) status.
Last year, in Our Lady of Guadalupe School v.Morrissey-Berru,140 S.Ct. 2049 (2020) the Court, heldthat the "ministerial exception" which was established inthe Hosanna-Tabor Evangelical Lutheran Church &School v.EEOC, 565 U.S. 171 (2012) precluded twoteachers, employed by different Catholic schools, from pursuingemployment discrimination claims.The ministerial exceptionbars ministers from suing churches and other religious institutionsfor employment discrimination. Although the teachers were notordained ministers, the schools in the consolidated cases arguedthat the exception nonetheless applied because the teachers playeda key role in teaching religion to their students. TheSupreme Court, in a 7-2 vote, agreed.
Things got more interesting when the Equal EmploymentOpportunity Commission ("EEOC") proposed an update to its2008 guidance on religious discrimination in the workplace.The commission voted 3-2 (with the two democratic membersobjecting) to finalize it on January 15, 2021 just days beforePresident Biden took office. The EEOC was clear that theguidance was being updated in large part due to the Our Lady ofGuadalupe decision.
The EEOC routinely issues guidance, which does not have theforce of law, on a number of workplace issues. Guidance isroutinely relied upon by employers, courts, and investigatorsreviewing charges of discrimination in interpreting the federalanti-discrimination laws.
The Biden EEOC, with new leadership, could further modify orwithdraw the proposed guidance or simply refocus its enforcementefforts differently.
On March 5, the Massachusetts SJC ruled in DeWeese-Boyd v.Gordon College that the "ministerial exception" doesnot apply to an associate professor of social work at a privateChristian liberal arts college, and she should be allowed to pursueher claims that the school retaliated against her for hervocal opposition to the school's LGBTQ+ policies. The SJCspecifically noted that the facts of Hosanna Taborand Our Lady of Guadalupe were "materiallydifferent" in that DeWeese-Boyd was neither hired to be aminister or a teacher of religion in a primary or secondary schoolenvironment as in those cases. In Hosanna-Tabor, theemployer was an Evangelical Lutheran church and school, and theplaintiff was a "called" teacher, who had undergoneformal religious training and accepted a formal call to religiousservice. She and her employer both viewed her as a minister,and her employment documents described her as such. The twoteachers in Our Lady of Guadalupe worked in an elementaryschool where they taught all subjects, including religion. Theywere expected not only to teach the faith to their students butalso to guide them "by word and deed" toward the goal ofliving their lives in accordance with the Catholic faith. Theyprayed with the students, attended Mass with them, and prepared thechildren for participation in other religious activities.
As a Professor, DeWeese-Boyd was not ordained or commissioned,not held out as a minister, was not required to undergo formalreligious training, pray with her students, participate in or leadreligious services, take her students to chapel services, or teacha religious curriculum.
The SJC also rejected Gordon College's argument that all itsemployees should come under the ministerial exception as too broadan interpretation which would allow religious organizations tosimply ignore secular anti-discrimination laws.
The Supreme Court will likely see more cases of this nature inthe coming years as both religious and non-religious organizationsgrapple with the inevitable tug that comes with balancing therights of all.
The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances.
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