The Right’s Religious Liberty Agenda Is on a Collision Course With Labor Law

The Right’s Religious Liberty Agenda Is on a Collision Course With Labor Law

The Right’s Religious Liberty Agenda Is on a Collision Course With Labor Law

Religious employers have found a way to give themselves cover for blatant discrimination—and the Supreme Court is ready to back them up.


Michelle Fitzgerald, who goes by “Shelly,” dates her connection to Roncalli, a Catholic high school in Indianapolis, to when she was 5 years old and attending a kindergarten that feeds into the school. She enrolled at Roncalli as a freshman, as her siblings did later—she’s the oldest of five—as well as her cousins, nieces, and nephews. The family had a saying: “Don’t date anybody at Roncalli, because you’re probably related to them,” she told me.

After college, Fitzgerald got a master’s degree in school counseling and decided to do her internship at Roncalli, which turned into a full-time job in 2004. “It was my dream job at my dream location,” she said. After three years as a college guidance counselor, she was promoted to director of guidance. She consistently got “glowing” reviews, she said. “As much as I loved the school, the school loved me.” Fitzgerald had come out in high school, so many in the Roncalli community knew she was gay, and she started dating the woman who would become her wife in 1997. They married soon after Indiana legalized same-sex marriage in 2014. Fitzgerald’s sexual orientation had never posed any problems. “It was a nonissue,” she said.

That is, until four years later. Two weeks into the 2018–19 school year, the president of the school asked her to meet with him and the principal. Fitzgerald was informed that someone had found her marriage certificate and sent it to the president, who shared it with the archdiocese. She was given four options, she said, the first of which was to continue to work at the school but to dissolve her marriage and leave her wife and daughter. If she didn’t do that, she could resign immediately, be fired, or, if she was able to keep it quiet, work through the school year and then be let go. “It was every emotion I’ve ever felt all at once,” Fitzgerald said. “It was heartbreaking.”

She refused to resign or to end her marriage. She was placed on administrative leave the next day.

Fitzgerald filed a lawsuit against Roncalli in early 2019, accusing the school of firing her because she is gay, violating the protection against employment discrimination based on sex under the Civil Rights Act. But she still hasn’t been able to make her case in front of a judge or jury. Instead, the case has gotten hung up on a question that took her totally by surprise: Is Fitzgerald a Catholic minister?

In trying to get Fitzgerald’s lawsuit dismissed, Roncalli has asserted that she was not just a guidance counselor but a “minister of faith” to her students. If the school is successful in arguing that, her role would be subject to what’s become known as the “ministerial exception.” At that point, her case would come to a standstill, because the Supreme Court has ruled that ministers can’t sue the religious institutions that employ them for discriminatory hiring or firing. To do so, in the eyes of the court, would entangle the government in the internal workings of these institutions, which would be a violation of their religious liberty. But instead of applying this loophole only to actual clergy, an increasing number of religious employers have been claiming that an ever wider universe of employees can be considered ministers and are therefore exempt from the major antidiscrimination protections passed in the last several decades, including the Americans With Disabilities Act, the Age Discrimination in Employment Act, and Title VII of the Civil Rights Act, which bars discrimination on the basis of race, color, religion, sex, and national origin.

Conservative groups are helping religious employers in their quest to widen the loophole as far as they can. If they succeed, “hundreds of thousands, if not millions of employees around the country” could be walled off from discrimination protections, according to Bradley Girard, litigation counsel at Americans United for Separation of Church and State (AU), much the way Uber and Lyft have tried to shield themselves from labor laws by classifying their workers as independent contractors.

And yet few people even know that the loophole exists, much less that it’s being actively expanded. “I’ve talked to clients who have said, ‘What do you mean, I’m a minister? That’s crazy,’” Girard said. “Every employee has just been dumbfounded by it.” When Fitzgerald found out that the school was making this claim about her, “my reaction was ‘What?’” she recalled. Religious duties were not part of her job, she told me, nor had she been trained in catechism or any other religious subject. “It just wasn’t part of what we did as counselors,” she said. “We were never evaluated on it.” There were other people on staff whose job it was instead: a chaplain, a priest, a campus minister, and a dozen religion teachers.

There was no mention of ministerial duties in her original contract. But in 2017, more than a decade after Fitzgerald began working at the school, Roncalli and the archdiocese required her and other employees, without explanation, to sign a “School Guidance Counselor Ministry Contract,” which included a “ministry description” for guidance counselors like her. Fitzgerald contends that her duties never changed. But now the school is citing the contract as evidence that she was a minister. It’s a way to “make a justification for why they were firing me,” she said.

In 1964, when Congress passed Title VII of the Civil Rights Act, it barred all employers from discriminating against employees, with no exception for religious institutions. But in 1972, the federal Fifth Circuit Court created the ministerial exception, ruling in favor of the Salvation Army, which argued in an equal pay claim that subjecting a church to Title VII violated its religious rights. The idea is that under the free exercise clause of the Constitution, which protects the right to practice religion, religious institutions must be able to pick their leaders, and under the establishment clause, which ensures the separation of church and state, courts can’t determine whether religious leaders are competent at their job and therefore whether their firing is justified.

“These are genuine concerns,” said Caroline Mala Corbin, a constitutional law professor at the University of Miami. “But they don’t arise in every case where someone brings a discrimination claim.” Courts frequently make decisions about what motivated an employment action—whether someone was fired for poor performance or because of their race, for example. The original, narrow exception is “a protection for religion that’s important,” said Rachel Laser, the president of AU. “It was never intended to place religious employers above the law or grant them a license to discriminate against their entire workforce.”

David Franklin, a professor of constitutional law at DePaul University, concurs. “You would want the court to be quite hesitant before reading in exceptions that aren’t there,” he said. Instead, “the courts [are] really running roughshod over the laws.”

If the ministerial exception applies to an employee bringing a lawsuit, the institution doesn’t have to prove that it fired them for a religious reason—all it has to convince a court of is that the plaintiff is a minister. At that point the court can’t even look into what happened to the employee; the case can’t proceed. The ministerial exception also blocks the employee from bringing claims not just under federal rules but also under state-level antidiscrimination laws.

Religious institutions may sincerely believe that most of their employees actually help transmit their faith. But they also have a clear interest in prying the exception as wide as possible: It can help them get potentially expensive discrimination cases dismissed at the very first stage. To that end, they have been trying to expand this umbrella to cover more and more kinds of employees and more and more kinds of cases.

If conservatives and religious organizations get their way, the exception will grow from a narrow carve-out to a gaping hole in employment law. “It would mean state and federal employment laws largely do not apply to workers for religious businesses,” said Jeffrey Fisher, a professor at Stanford Law School. “Period.”

Gregg Tucker was hired by Faith Christian Academy, a K-12 school in Arvada, Colo., as a science teacher in 2000. He would later become the dean of student life, responsible for working with the student council and planning events like homecoming celebrations. He sought employment at a private religious school because it didn’t require him to get a teaching license. He was never forced to teach creationism or bring any other theology into his science classes. Even when he later taught a world news and religions class, he left theology and the Bible to teachers who had a background in those topics; he had no such qualifications, he said.

Early in his tenure, he asked the school administration whether he qualified for a parsonage allowance, a tax-exempt housing credit available to ministers, but was told he wasn’t one. “Simply put, I wasn’t clergy at all,” he said.

So when he found out that the school was trying to get a racial discrimination lawsuit he brought against it thrown out on ministerial exception grounds, “it didn’t make sense to me,” he said. “It just felt like a cop-out.”

After Tucker, who is white, finalized the adoption of one of his daughters, who is Black, he started to notice incidents of racism at the school. “I couldn’t help but begin to see the world through her eyes,” he said. Then he became the object of racist treatment, with two students writing in anonymous feedback that he was a “n***** lover” and “n***** father.” As the dean of student life, he felt it was important to bring attention to the issue, so in 2018 he organized an assembly focused on race over the Martin Luther King Day weekend. “My hope was that it would be the beginning of our school doing a better job of confronting the issue,” he said.

Instead, some parents and students, offended by discussions of white privilege and systemic racism, complained to the school and called for Tucker’s termination. Faith Christian Academy fired him that February.

Being fired was “professionally devastating,” he said. In the immediate aftermath, Tucker applied unsuccessfully for jobs at other Christian schools in the area. He believes he was blacklisted because of his termination. “It continues to be a black mark on my professional record,” he said. He began to question his teaching career. It “almost felt like this trauma response of just not wanting to be back in the classroom again,” he said. He started working in real estate, and while he does some work coaching volleyball and doing international trips with students, he said, “I have not yet felt that freedom to be fully back in the classroom. I don’t know if that will happen again.”

“I dedicated almost two decades of my life to this job,” he said. “To have that just kind of pulled out from under me was devastating.”

The school offered him about a month’s worth of pay in severance, but in exchange he would have had to sign a nondisclosure agreement, so he turned it down. “Definitely financially I was damaged in the midst of all of this,” he said. And it affected his family. His older daughter was in the middle of her freshman year at Faith Christian Academy’s high school, and it was “just devastating for her,” he said. She decided to finish out the year but didn’t return after that. In the aftermath, she’s had to seek therapy.

Tucker filed the lawsuit against the school in 2019, accusing it of illegal retaliation against him for speaking out against a racially hostile environment. A district court has allowed his case to move forward so that it can be determined whether he’s a minister. But more than two years later, he has yet to tell a judge or jury about his experience—the only thing discussed so far has been the ministerial exception. “The wheels of justice are certainly slow,” he said.

The outlook for cases like those brought by Tucker and Fitzgerald isn’t positive. In 2012, the Supreme Court weighed in on the ministerial exception for the first time, ruling in Hosanna-Tabor v. EEOC that Cheryl Perich, a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School, was a minister, and that the school couldn’t be held accountable for allegedly firing her over her disabling narcolepsy. In its decision, the court noted that the school had classified Perich as a “called” teacher, meaning one who has been “called to their vocation by God.” She had completed theological training, her formal title was “Minister of Religion, Commissioned,” and she led students in prayer and led chapel service twice a year. The decision in Hosanna-Tabor laid out a framework for determining whether employees are ministers for the purposes of antidiscrimination law: whether their titles refer to being a minister, whether the employee has had religious education or training, whether they held themselves out as ministers by doing things like taking advantage of tax benefits, and whether they performed religiously important functions.

But in 2020, the court issued a ruling in Our Lady of Guadalupe School v. Morrissey-Berru that threw out much of that framework. Two teachers at the Catholic school, Agnes Morrissey-Berru and Kristen Biel, sued the school, claiming they were fired illegally—Morrissey-Berru for age discrimination, and Biel for disability discrimination. Neither teacher had religious titles or training or held themselves out as ministers, but because they taught religion classes and prayed with their students, the court said they performed religiously important functions. Much like Fitzgerald, the plaintiffs “were caught rather by surprise to learn that ordinary federal employment law does not apply to them,” said Fisher, who argued the case in front of the Supreme Court. Neither thought of herself as a “steward of the religion,” Fisher said. But in a decision written by Justice Samuel Alito, the court ruled that both were ministers.

The opinion held that the ministerial exception is strictly about “personnel who are essential to the performance” of religious functions, and it was limited to K-12 teachers who actually taught religion. But it “certainly raises the prospect,” Fisher said, that the exception “could be expanded quite a bit by the court.”

What the court hasn’t ruled on yet is whether the exception applies to other kinds of employees and to situations other than hiring and firing. Does it apply in cases of racial discrimination or sexual harassment? Is a debate club leader or football coach who serves as a moral role model for students also a minister? Could the exception apply to math teachers at Jesuit colleges, workers at Catholic Charities soup kitchens, nurses at Catholic hospitals, receptionists at religious nonprofits, camp counselors at the Salvation Army? Could even a janitor who cleans a church be said to be integral to spreading the faith? Could it apply to other employment laws, such as wage and hour laws that set minimum pay and overtime hours?

Some lower courts are already signing on to an expanded ministerial exception, allowing employers to dodge a broader set of antidiscrimination laws even in the absence of a Supreme Court ruling. The Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, just decided against a plaintiff in such a case. Sandor Demkovich was a music and choir director at St. Andrew the Apostle Parish in Illinois. Demkovich, a gay man who suffers from diabetes and other health conditions, alleges that his supervisor harassed him for years before firing him for marrying his partner in 2014. Neither Demkovich nor his employer disputed that he was a minister. But his case wasn’t about hiring and firing; it was about his supervisor creating a hostile work environment based on Demkovich’s sexual orientation and disability. And yet the Seventh Circuit ruled that Demkovich’s case couldn’t move forward because he was a minister. “Because apparently that kind of torrid abuse is just part of the relationship between a supervising minister and another minister within the church,” said Franklin, who represented Demkovich.

The Supreme Court has yet to rule on any cases involving harassment or brought by employees outside K-12 education. But conservatives aren’t waiting to find out what the court ultimately decides. Groups including Christian Legal Society, the Becket Fund for Religious Liberty, and Alliance Defending Freedom, which the Southern Poverty Law Center classifies as a hate group, are “pursuing this full force,” Franklin said.

These religious groups have gotten a boost from an unlikely ally. In late 2020, just before President Joe Biden was sworn in, the Equal Employment Opportunity Commission held a series of “listening sessions” on “Religious Discrimination in Employment.” Led by the EEOC’s general counsel, Sharon Gustafson, and commissioners Andrea Lucas and Keith Sonderling, all Trump appointees, the participants included a who’s who of conservative groups, such as Alliance Defending Freedom, the Becket Fund, Christian Legal Society, the Family Research Council, and First Liberty Institute.

During those sessions, EEOC chair Janet Dhillon, another Trump appointee, rushed through an updated guidance document on religious discrimination. She sent a 120-page draft to her fellow commissioners less than a week before the date she had scheduled to vote on it. “It’s a lot to dig through,” the current chair, Charlotte Burrows, told me at the time. “To vote on it in a week is ludicrous.” The previous version, published in 2008, had been adopted after a six-year process. The commission voted to publish the new guidance for public comment on November 9, 2020, with all three Republican appointees in favor and the two Democratic appointees opposed.

The proposed draft took the ministerial exception farther than the Supreme Court’s current rulings, suggesting that the definition of a religious employer could include not only nonprofits and churches but also for-profit entities. “Whether a for-profit corporation can constitute a religious corporation under Title VII is an open question,” it stated.

That assertion was ultimately removed, but the final guidance is in line with what some lower courts have been ruling. It states that “the exception is not limited to ‘ministers’ or members of the clergy” and suggests that the most important factor in whether an employee is a minister is what an employer says, not what an employee does in their job. It is “maximally encouraging to employers to utilize the ministerial exception,” said Ira Lupu, a constitutional law professor at George Washington University. The guidance also says that the ministerial exception is not an affirmative defense that employers would have to prove as a case proceeds, but a blanket ban on the EEOC’s involvement in these cases—requiring the agency to remove itself before an employer even brings the issue up. And it offers “examples” that outline how a religious employer might defend itself against claims, giving such employers “an escape from antidiscrimination law,” Lupu said.

The commissioners voted to approve the final guidance, again with the Republican appointees in favor and the Democratic appointees against, five days before Biden took office. It’s still in effect.

Conservative groups are also advising religious employers on how to bring all employees under the exception. Alliance Defending Freedom has published a pamphlet called “Protecting Your Ministry,” which advises a religious organization to “assign its employees duties that involve ministerial, teaching, and other spiritual qualifications.” One example: inserting into a church receptionist’s job description a requirement that she answer “basic questions about the church’s faith, provide religious resources, and pray with callers.” It also advises organizations to require “all employees to participate in devotional or prayer time.” Christian Legal Society has a guide telling churches that they should “update employment policies and practices,” because “a ‘ministerial’ position is generally exempt from federal and state anti-discrimination prohibitions.” It recommends not only inserting such language into job descriptions and contracts but doing things like requiring “regular prayer time at staff meetings, and other religious practices on a daily basis.” And First Liberty Institute published a “Religious Liberty Protection Kit for Christian Schools” that says a school’s “employment practices may be further secured by ensuring that its employees fit within the ‘ministerial exception,’” because ministerial employees, who are “most, if not all of your school employees,” “are outside the scope of government regulation—a very strong protection.” It therefore advises a school to write job descriptions and include responsibilities that “emphasize the religious nature of the employee’s role as a messenger or teacher of its faith.”

The employers’ legal teams are in on it, too. The law firm McGuireWoods wrote a blog post advising religious employers to “squeeze [employees] into the cleft created by the ‘ministerial exception’” by updating handbooks and job descriptions, giving employees “explicitly religious duties” like leading prayer, and tying performance reviews to “religious standards,” such as “personal modeling of the faith.” Conner & Winters advised clients to “assign pastor titles wherever justified,” require employees to have theological experience, and “distribut[e] religious duties to as many staff members as is reasonably appropriate,” such as giving them prayer duties even for a “small portion of the workday,” in order to “increase the perception that employees who have those duties are ministers.”

So far, these tactics—inserting language into job descriptions or employee contracts—haven’t been fully tested in the courts. The Supreme Court has said that determining whether someone is a minister requires a functional analysis, which is supposed to go beyond what was written down on paper and consider what duties the employee actually performed in their job. But there are signs some courts are giving such tactics a warm reception. In the case of Lynn Starkey, who worked at Roncalli with Fitzgerald and filed her own lawsuit after she was fired allegedly for being in a same-sex marriage, the Seventh Circuit decided she was a minister in part because, although she said she didn’t actually perform religious duties, the contract and job description the school rolled out in 2017 included them. “What an employee does involves what an employee is entrusted to do, not simply what acts an employee chooses to perform,” the court wrote in its decision. “[A]n employee is still a minister if she fails to adequately perform the religious duties she was hired and entrusted to do.”

The Supreme Court will almost certainly embrace this argument if and when a case makes it there. Since the court last weighed in on the ministerial exception in Morrissey-Berru, its makeup has significantly changed: Justices Ruth Bader Ginsburg and Anthony Kennedy have been replaced by Amy Coney Barrett and Brett Kavanaugh. A study from 2021 found that religious interests had an 81 percent success rate in cases before the current Supreme Court, more than any previous court, and that the five most pro-religion justices in 70 years—Samuel Alito, Neil Gorsuch, Brett Kavanaugh, John Roberts, and Clarence Thomas—are all on the current court. And that was before Amy Coney Barrett joined its ranks.

The most recent term only extended the winning streak for religious entities. The Supreme Court ruled that religious schools have to be included in government-funded tuition assistance programs, and it ruled in favor of a football coach who prayed loudly and coercively on the school’s football field. “This court is extremely sympathetic to promoting the religious rights of Christian people and Christian institutions,” Mala Corbin said.

There may also be an appetite among some of the justices for a far more sweeping view of the exception that relies on “church autonomy”—the idea that religious employers, which include not just churches but other entities like schools and nonprofits, should have complete control over their internal affairs regardless of the laws everyone else follows. This idea is espoused, for example, in the EEOC’s updated religious discrimination guidance. “That is so broad it would cover every employee,” Lupu noted, and not just in terms of hiring and firing but also “minimum wage and hour, occupational health, and all the ways employees are protected by the law.” In his concurrence in Morrissey-Berru, Justice Thomas, joined by Justice Gorsuch, espoused the view that courts must “defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’” He added, “What qualifies as ‘ministerial’ is an inherently theological question, and thus one that cannot be resolved by civil courts through legal analysis.”

A glimpse of this future came in a case the Supreme Court declined to take up this term. Margaret DeWeese-Boyd sued Gordon College, alleging that she was denied a promotion to full professor because of her gender and her opposition to the school’s anti-LGBTQ policies. The nondenominational Christian school has countered that she’s a minister. Though the Supreme Court sent the case back to the lower court, Justice Alito, joined by Thomas, Kavanaugh, and Coney Barret, indicated that the court would be eager to take up the issue at some point. Alito wrote that a state court’s finding that DeWeese-Boyd wasn’t a minister—because she didn’t have religious training and didn’t pray with students, teach religion, or lead or participate in religious services—represented a “troubling and narrow view of religious education,” and that “in an appropriate future case, this Court may be required to resolve this important question of religious liberty.” The ministerial exception “protects the ‘autonomy’ of ‘churches and other religious institutions’ in the selection of the employees who ‘play certain key roles,’” he added.

Could the court go even further? The Family Research Council, a right-wing think tank, has petitioned the IRS to be treated as a church, as have several other major nonprofits. Could they use that status to claim that their employees are ministers? In its 2014 decision in Burwell v. Hobby Lobby Stores, Inc., the Supreme Court applied the Religious Freedom Restoration Act to a for-profit company run by religious people, and the current EEOC guidance notes that the Hobby Lobby decision shows that “it is possible courts may be more receptive to finding a for-profit corporation can qualify” as a religious entity. Could a similar for-profit corporation argue that its employees are ministers, too? “It’s only a matter of time until somebody tries it,” Girard said.

After she was fired, Shelly Fitzgerald couldn’t get another job as a school counselor, since the school year had already begun. She later interviewed for jobs at other schools but found it difficult to contemplate going back. “I just didn’t want to put myself in a position like that again,” she said. Instead, she started a nonprofit, Shelly’s Voice, to advocate for LGBTQ equality. That work was unpaid. It wasn’t until this past March that she returned to full-time paid work after finding a donor relations job at an LGBTQ youth organization. “Until that job came open, I was terrified that I would never want to work again,” she said.

Her wife is still very “pissed off,” Fitzgerald said, and her daughter has had to deal with the attention that followed after her mother’s story made national headlines. The worst part, she added, is the impact the episode had on her parents. Discussing that was the only time in our conversation that she got choked up. When she came out to her parents as a teenager, they were worried about how other people would treat her. Now their worst nightmares had come true. “For them it still is very, very hard,” she said. They also suffered repercussions: Her father, who had been doing volunteer work with the school for 40 years, was told he couldn’t do it anymore.

Fitzgerald still mourns the loss of her job and her community. She’ll think she’s over it, and then something will bring it all back, like back-to-school messages on social media or watching her friends send their children to Roncalli. “I wish that it hadn’t been a place that had been a family to me, because I think it would have been a lot easier and less traumatic emotionally,” she said. “I wish that it had just been a job.”

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