Three years ago the Supreme Court ruled unanimously that religious organizations enjoy a "ministerial exception" from laws against employment discrimination. That case involved a teacher fired by a Lutheran school that had classified her as a "commissioned minister."
In his opinion for the court, Chief Justice
The court's decision left many wondering whether a religious organization could fire a gay teacher or church organist even in states that outlawed discrimination on the basis of sexual orientation. There have been a number of such dismissals in recent years, including one in the Los Angeles area.
That question is still up in the air, but lower courts are beginning to apply the Supreme Court's ruling to new circumstances.
This week a federal appeals court in Cincinnati ruled in favor of the InterVarsity Christian Fellowship, which had fired an employee whose marriage had collapsed. The organization, which promotes Christianity on college campuses, insists that "all married employees honor their marriage vows."
Alyce T. Conlon's title was not "minister" but "spiritual director" whose duties included helping staff members cultivate "intimacy with God and growth in Christ-like character." The U.S. 6th Circuit Court of Appeals concluded that the ministerial exception barred her from suing IVCF for gender discrimination. (Conlon claimed that two male employees who divorced their spouses weren't terminated.)
The appeals court conceded that Conlon's situation wasn't identical to that of the teacher in the Supreme Court case. Nevertheless, Conlon performed "important religious functions." Is the same true of a chemistry teacher in a Catholic school or a church organist?
It's hard to say. Some Catholic schools don't require teachers of non-religious subjects to engage in religious activities; others do. At the Catholic high school I attended, lay teachers began class with a prayer. And teachers at Catholic schools, even if they don't lead prayers or teach religion, are commonly expected to inculcate "Christ-like character" in their pupils during the school day. (Here's the mission statement from my old school.)
The Catholic archbishop of San Francisco has gone further, warning teachers in its schools that they must "avoid contradicting church teaching ... either in the school or in some public way outside the classroom."
As for church organists, some are paid professionals who may not even share the faith of the church in which they play. Others must be believers and are described as "ministers of music."
And there are other sorts of employees who may be "ministerial." One court has decided that an employee of a Catholic cemetery qualifies.
So it looks as if we're in for a series of decisions that will define the contours of the ministerial exception. Some, like the one this week, may involve teachers fired for seeking or contemplating a divorce; others will involve teachers, musicians and maybe gravediggers who entered into same-sex marriages. It's likely that different courts will draw different lines.
That's what happens when the Supreme Court declines to establish a "rigid" test.