WASHINGTON -- The Supreme Court justices sounded split Monday on whether to broadly deny civil rights protections to hundreds of thousands of teachers in religious schools, as they heard cases involving two who were fired from Catholic schools in Los Angeles.
At issue is whether the Constitution's protections for religious freedom shields church schools from being sued if they discriminate against a teacher in violation of federal or state laws that protect workers.
Advocates for the teachers warned the justices that a broad ruling based on the church's view of its religion mission could severely restrict the rights of millions of other employees in church-run hospitals, nursing homes, colleges, charities and child care centers.
The argument featured a new twist on an old doctrine. In recent decades, conservatives have shunned the phrase "separation of church and state" because they associated it with the liberal era when the justices struck down prayers in public schools and barred state aid for children in parochial schools. But a lawyer representing the Catholic schools in Los Angeles led off Monday's argument by citing that principle.
"If separation of church and state means anything at all, it must mean the government cannot interfere with the church's decisions about who is authorized to teach its religion," said Eric Rassbach of the Becket Fund for Religious Liberty. "Churches must choose those who teach the faith to the next generation. Courts shouldn't be in the business of second guessing" those decisions.
He urged the court to reverse the 9th U.S. Circuit Court of Appeals, which allowed lawsuits from two former elementary teachers who alleged they were wrongly fired by their Catholic schools. Rassbach won the apparent support of several of the court's conservatives and possibly a majority, judging by the questions they asked over a telephone hook-up as the court again met remotely amid the COVID-19 pandemic.
Justice Neil M. Gorsuch said the courts should not question "any sincerely held religious belief." If a church-run school or other institution says an employee is teaching the faith or carrying out its religious mission, their word "should control" the outcome, he said.
Arguing on the side of the teachers, Stanford law professor Jeffrey Fisher said adopting that view would amount to "truly a sea change in the law" and leave 300,000 teachers and perhaps 1 million other employees of church-run institutions without the protections of federal and state laws.
Fisher agreed that teachers who serve as "spiritual leaders" at a school or college come under the so-called "ministerial exception," meaning they can be hired or fired entirely at the discretion of church officials. But he said the court should not extend this notion to cover "lay teachers" at a Catholic school or nurses in a Catholic hospital. He said the former elementary school teachers whose cases are before the court taught a daily lesson from a workbook on the Catholic faith, but had no special religious training or role, and therefore should not be treated as though they were ministers.
One, Kristen Biel, said she was dismissed shortly after she told the principal in 2014 that she had breast cancer and would need time off for surgery and chemotherapy. She sued under the Americans with Disabilities Act, which includes employment protections for people with cancer. Biel died last summer as her case made its way through the courts, but her husband Darryl Biel has continued the suit against St. James School in Torrance. Agnes Morrissey-Berru sued for age discrimination after she was dismissed from her teaching job at Our Lady of Guadalupe School in Hermosa Beach.