Updated at 7:25 p.m.
The Supreme Court's conservative majority signaled Wednesday that it is on the verge of carving out a giant exception to the nation's fair employment laws.
Before the court were two cases, both involving fifth grade teachers at parochial schools in California. One, a veteran of 16 years teaching at her school, contends her firing was a case of age discrimination. The other said she was fired after she told her superior that she had breast cancer and would need some time off.
Both schools denied the allegations but maintain that regardless, the fair employment laws do not apply to their lay teachers because they all teach religion for 40 minutes a day.
The schools argue that their lay teachers are exempted under the so-called "ministerial exception," which the Supreme Court set out in 2012 after the lower courts had for decades had such a rule. But the lower courts have not considered lay teachers exempt from fair employment laws. And the 2012 Supreme Court decision limited its reach to teachers who are "commissioned" ministers of the faith.
For many of the justices, the question is more than theoretical. Five of the current justices attended Catholic secondary schools and Justice Stephen Breyer's daughter is an Episcopal priest. The tone of questioning, nonetheless, broke along liberal/conservative lines, with the conservative justices suggesting they may be ready to work a sea change in the way the nation's employment laws work for schools, hospitals, charities, and other religiously affiliated institutions.
The questioning focused mostly on how to draw the line between those who are ministers of the faith and those who are not.
Justice Elena Kagan peppered the schools' lawyer Eric Rassbach of the Becket Fund for Religious Liberty with hypotheticals. Would a math teacher who led students in a short prayer be exempt under the ministerial exception? What about a coach or a camp counselor leading students in a prayer. And what about nurses or other employees?
Would a "a nurse at a Catholic hospital who prays with sick patients," or "a communications staffer who prepares press releases for a religious institution," or "a counselor at a church affiliated rehab clinic," or "an employee at a soup kitchen," or "a church organist?"
Rassbach replied that the nurse, the communications staffer, and the church organist would all be considered ministers and exempt from fair employment laws. But not the soup-kitchen worker.
At times the slipperiness of the "important religious function" test aroused skepticism even among the conservative justices.
Justice Clarence Thomas, one of the court's conservatives, asked whether it could apply to a chemistry teacher who begins class with a Hail Mary or a lay teacher who teaches religion in a "straightforward, objective way."
"I don't see what standards a secular court would use to determine which of those is an important ... religious duty or function," Thomas said.
And Justice Sonia Sotomayor, who attended parochial school as a child, told one school's lawyer: "You're asking for something broader than giving the schools the power to hire or fire certain kinds of people because of how they teach the religion or don't teach it, and you haven't explained why it's necessary."
The Trump administration, abandoning consistent positions on this issue taken by prior administrations stretching all the way back to the Reagan administration, supported the religious schools. Assistant Solicitor General Morgan Ratner took incoming fire from Justice Ruth Bader Ginsburg, who called "the breadth of the exemption ... staggering."
Ginsburg asked Ratner so suppose a teacher is fired after she reports student complaints about sexual harassment by a priest. Under the ministerial exception, Ginsburg observed, the teacher in that position would have none of the normal employment remedies to protect her.
Ratner dodged the question.
Ginsburg followed up, noting that having cancer has nothing to do with religious functions.
Ratner replied that when dealing with a teacher of religion at a religious school, the exemption is categorical.
That prompted Ginsburg to point out that "it would be the same if what was reported was the principal of the school Sister Mary Margaret, had been stealing ... from the school's till regularly to pay for her gambling excursions to Las Vegas," alluding to the rather embarrassing facts of one of the cases.
Next up was lawyer Jeffrey Fisher representing the teachers, who picked up the thread in his argument, noting that "the school's argument would strip more than 300,000 lay teachers in religious schools across the country of basic employment law protections."
His first question came from Chief Justice John Roberts.
"Your position is more formalized, more focused on titles than function," noted Roberts.
Fisher replied that if the court focuses only on function, religious schools will, as they already have been, write all their job descriptions in religious terms so as to scoop up all the employees into the ministerial exemption.
Ginsburg interjected: "What I find disturbing in all this is a person can be fired or refuse to be hired, for a reason that has absolutely nothing to do with religion. Like needing to take care of chemotherapy."
Fisher agreed, saying the teachers were not challenging a situation where a religious employer wants to hire or fire someone within the ministerial exception for religious reasons. Rather, he said, his clients are challenging the ministerial exception when the employer is firing someone for non-religious reasons, like having cancer.
Kagan returned again to where to draw the line, prompting Fisher to reply that "it's a very odd thing to say that for a person who doesn't even have to be the same religion and who you are firing for a non-religious reason, to say that person is covered by a religious exception."
But the court's conservatives seemed largely unpersuaded.
Justice Samuel Alito noted that teaching religion is central to the mission of a parochial school.
Justice Neil Gorsuch asked why the court should second guess what religious leaders believe?
And when Fisher argued that the court could use different factors to determine who fell within the exception, including titles and formal religious training, Justice Brett Kavanaugh said he wasn't sure "but my guess is that a lot of religion teachers would say their life is their training."
Fisher replied that there has to be something more than that, or else, he said "[the ministerial exception] would blow a hole in our nation's employment laws to say that you can use race, gender, disability in firing."
As it did last week, the court livestreamed audio of the arguments, and the justices participated by telephone conference because of social-distancing measures adopted amid the coronavirus outbreak.
Earlier in the day, the justices heard arguments in a case involving Native American lands. A decision in both cases may well not come until July.
Here's a rundown of the cases so far this month and what's coming up next.
Christina Peck contributed to this report
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