SCOTUS appears divided in Catholic schools employment case

The US Supreme Court on Monday seemed divided over how broadly religious institutions including schools, hospitals and social service centers should be shielded from job discrimination lawsuits by employees.

The court heard arguments by telephone, with the audio available live, for a second week because of the coronavirus pandemic. The court has two days left of scheduled telephone arguments. Tuesday’s arguments are high-profile fights over disclosure of President Donald Trump’s financial records.

On Monday, the high court heard a case stemming from a unanimous 2012 Supreme Court decision in which the justices said the Constitution prevents ministers from suing their churches for employment discrimination. But the court didn’t rigidly define who counts as a minister.

Lawyer Eric Rassbach, representing two Catholic schools sued by former fifth-grade teachers who taught religion among other subjects, told the justices that the women count as ministers exempt from suing.

“If separation of church and state means anything at all, it must mean that government cannot interfere with the church’s decisions about who is authorized to teach its religion,” Rassbach told the justices.

But the court struggled Monday with who should count as a minister, with the court’s four more liberal members expressing concern about broadening the current exception.

Justice Sonia Sotomayor, a member of the court’s liberal wing, told Rassbach that he was seeking an exception that was “broader than is necessary to protect the church.”

Justice Elena Kagan, meanwhile, asked whether a series of people working for religious institutions would count as a minister, including: a math teacher who begins class with a prayer, a nurse who prays with patients, a church organist and a cook who is not Jewish but prepares kosher meals. No, yes, yes and no, Rassbach answered.

“What’s the connection, what are we supposed to draw from this?” Kagan asked, expressing concern about how the court should draw the line between who counts as a minister and who does not.

The court’s conservatives, including Justice Clarence Thomas, Justice Neil Gorsuch and Justice Brett Kavanaugh seemed more comfortable giving broad latitude to religious institutions in defining who is a minister.

Thomas, one of several justices who went to Catholic schools growing up, suggested courts should stay out of the issue, asking: “How exactly would … a secular court go about, determining whether an employee’s duties and functions are religious or whether they’re important?”

Five of the justices are Catholic, three are Jewish and Gorsuch attended Catholic schools but now attends a Protestant church.

The case before the justices Monday involves two schools in Southern California. Kristen Biel taught at St. James Catholic School in Torrance and Agnes Morrissey-Berru at Our Lady of Guadalupe in nearby Hermosa Beach. Morrissey-Berru’s teaching contract wasn’t renewed in 2015, when she was in her 60s, after she’d taught more than 15 years at the school. And Biel’s contract wasn’t renewed after she disclosed she had breast cancer and would need time off.

Both sued their former employers, with Morrissey-Berru alleging age discrimination and Biel alleging disability discrimination. A lower court said both lawsuits could go forward, but the schools appealed and have the support of the Trump administration.

Biel died last year at age 54 after a five-year battle with breast cancer. Her husband has represented her side in her place.

Justice Ruth Bader Ginsburg, who has been treated for cancer four times, suggested she’d side with Morrissey-Berru and Biel.

“What I find very disturbing in all this,” Ginsburg said at one point, is “that the person can be fired or refused to be hired for a reason that has absolutely nothing to do with religion, like needing to take care of chemotherapy.”

The court also heard arguments by phone Monday in an appeal by a Native American man who claims state courts have no authority to try him for a crime committed on reservation land that belongs to the Muscogee (Creek) Nation.

The justices considered a case involving the same question a year ago, but Gorsuch didn’t participate because he took part in the case when he served on the appeals court in Denver before becoming a justice in 2017. With only eight justices, the court was apparently evenly divided and so the justices took up a different case so the full group of nine could rule. On Monday, Gorsuch appeared to be a pivotal vote for the view that a large chunk of eastern Oklahoma remains an American Indian reservation.