Published: New Hampshire Bar News April 21, 2021

In the past several years a number of religious accommodation cases have reached the U.S. Supreme Court, an interesting trend where the religious beliefs and rights of individuals and businesses conflict with other fundamental rights of employees, students, and even the public.  The cases have received tremendous publicity and have stirred rancorous debate in classrooms, bar rooms, and on talk radio.  The social media soundbites, however, sometimes miss the subtle and not-so-subtle legal 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 Hobby Lobby’s owners’ religious beliefs trumped their employees’ rights to health insurance coverage for contraception as required by the Affordable Care Act.  The Court ruled 5-4 that the Religious Freedom Restoration Act of 1993 allowed the for-profit company to deny this coverage to its employees.

This was followed by Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 US ___ (2018), a 7-2 decision which permitted a bakery owner to refuse to bake a cake for a gay couple’s wedding.  However, rather than deciding whether free exercise or free speech rights are violated by forcing a business to provide services to a couple with whose lifestyle the owners do not agree, the Court ruled for Masterpiece Cakeshop concluding that the Colorado Civil Rights Commission demonstrated impermissible hostility to religion in finding in favor of the couple.  Noteworthy is that by this time the Supreme Court had affirmed in Obgerfell v. Hodges, 576 U.S. 644 (2015) that gay couples have the fundamental right to marry.

Supreme Court scholar Erwin Chemerinsky in his analysis of Masterpiece Cakeshop opined that “all antidiscrimination statutes pose a tension between equality and liberty.”  More precisely, “Is a business’s freedom to choose its customers [or employees] more important than the government’s interest in stopping sexual orientation discrimination?”

By 2020, the Court had also decided Bostock v. Clayton County, GA, 140 S.Ct. 1731 (2020) ruling that Title VII prohibits employment discrimination based on lesbian, gay, bisexual and transgender (LGBTQ) status.

Last year, in Our Lady of Guadalupe School v. Morrissey-Berru, 140 S.Ct. 2049 (2020) the Court, held that the “ministerial exception” which was established in the  Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012) precluded two teachers, employed by different Catholic schools, from pursuing employment discrimination claims. The ministerial exception bars ministers from suing churches and other religious institutions for employment discrimination.  Although the teachers were not ordained ministers, the schools in the consolidated cases argued that the exception nonetheless applied because the teachers played a key role in teaching religion to their students.  The Supreme Court, in a 7-2 vote, agreed.

Things got more interesting when the Equal Employment Opportunity Commission (“EEOC”) proposed an update to its 2008 guidance on religious discrimination in the workplace.  The commission voted 3-2 (with the two democratic members objecting) to finalize it on January 15, 2021 just days before President Biden took office.  The EEOC was clear that the guidance was being updated in large part due to the Our Lady of Guadalupe decision.

The EEOC routinely issues guidance, which does not have the force of law, on a number of workplace issues. Guidance is routinely relied upon by employers, courts, and investigators reviewing charges of discrimination in interpreting the federal anti-discrimination laws.

The Biden EEOC, with new leadership, could further modify or withdraw the proposed guidance or simply refocus its enforcement efforts differently.

On March 5, the Massachusetts SJC ruled in DeWeese-Boyd v. Gordon College that the “ministerial exception” does not apply to an associate professor of social work at a private Christian liberal arts college, and she should be allowed to pursue her claims that the school  retaliated against her for her vocal opposition to the school’s LGBTQ+ policies.  The SJC specifically noted that the facts of  Hosanna Tabor and Our Lady of Guadalupe were “materially different” in that DeWeese-Boyd was neither hired to be a minister or a teacher of religion in a primary or secondary school environment as in those cases.  In Hosanna-Tabor, the employer was an Evangelical Lutheran church and school, and the plaintiff was a “called” teacher, who had undergone formal religious training and accepted a formal call to religious service.  She and her employer both viewed her as a minister, and her employment documents described her as such. The two teachers in Our Lady of Guadalupe worked in an elementary school where they taught all subjects, including religion. They were expected not only to teach the faith to their students but also to guide them “by word and deed” toward the goal of living their lives in accordance with the Catholic faith. They prayed with the students, attended Mass with them, and prepared the children 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 formal religious training, pray with her students, participate in or lead religious services, take her students to chapel services, or teach a religious curriculum.

The SJC also rejected Gordon College’s argument that all its employees should come under the ministerial exception as too broad an interpretation which would allow religious organizations to simply ignore secular anti-discrimination laws.

The Supreme Court will likely see more cases of this nature in the coming years as both religious and non-religious organizations grapple with the inevitable tug that comes with balancing the rights of all.