On July 8, the Supreme Court ruled that the First Amendment protects the right of religious institutions “to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine,” and so teachers whose duties include religious instruction are not covered by federal employment discrimination protections. Here, Stanford Law Professor Michael McConnell discussed the decision.

What are the key points of the Supreme Court’s decision in OUR LADY OF GUADALUPE SCHOOL v. MORRISSEY-BERRU?

The courts have long held that religious groups have the right to choose their “ministers” without government second-guessing, even based on claims of discrimination. This (misleadingly-named) “ministerial exemption” extends beyond formal clergy to all persons performing the functions of leading religious worship or teaching and promulgating the faith. Eight years ago, in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, the Supreme Court unanimously held that the exemption applied to a fourth grade teacher who, in addition to teaching the full range of secular courses, also taught a religion class four days a week, led her students in daily prayer and devotional exercises, and occasionally led chapel.

This Term, the Supreme Court heard two cases involving elementary teachers with approximately the same duties as the teacher in Hosanna-Tabor, but with two differences: (1) these teachers’ titles were less explicitly ministerial, and (2) these teachers had less formal religious education. Holding that “[w]hat matters, at bottom, is what an employee does,” rather than what they are called, seven Justices agreed that the schools were entitled to hire and fire teachers entrusted “with the responsibility of educating and forming students in the faith” without “judicial intervention.” The Court stressed that making the scope of the exemption hinge on formal title or training would treat different religious denominations differently, with respect to employees with functionally similar responsibilities. Only two Justices, Justices Ginsburg and Sotomayor, dissented.

What is the rationale for the ministerial exception?

The idea is that religious groups should be able to decide for themselves who is charged with leading worship and communicating the faith, even when—as in the case of the all-male priesthood in the Roman Catholic Church or rules about matrilineal descent in Orthodox Judaism–the criteria would violate anti-discrimination laws as applied to secular employers. Moreover, the mere adjudication of discrimination claims would necessarily embroil courts or agencies in second-guessing the religious employer’s claims about the impact on their religious mission. Suppose a church hired a young minister because they thought he or she gave more spirit-filled sermons, and a disappointed 60-year-old applicant with better credentials alleged that the real reason was age discrimination. Will the jury decide who gives the more spirit-filled sermon?

So, the ruling does not extend to say a math teacher whose duties do not include religious instruction?

Teachers who do not teach religion or lead religious worship are not covered.

Can you talk about the tension between separation of church and state vs. religious freedom?

The ministerial exception both protects the religious autonomy of religious groups and also preserves separation between government and institutional religion. Historically, one particularly hated aspect of the establishment of religion was government regulation and licensure of ministers. That is why the Court in Hosanna-Tabor rooted the exception in both the Establishment Clause and the Free Exercise Clause.

Was federal funding an issue in this case?

The schools in these cases did not receive public funds (though some of their students were eligible for federally-subsidized meals), so the funding issue did not come up. In general, first amendment actors like artists, public radio stations, or universities do not forfeit first amendment protections (artistic freedom, editorial freedom, academic freedom) merely because they receive public subsidies. But these issues will likely arise if religious schools receive direct funding in the future.

Michael W. McConnell is the Richard and Frances Mallery professor of law and director of the Constitutional Law Center at Stanford Law School and a senior fellow at the Hoover Institution. He formerly served as a judge on the U.S. Court of Appeals for the 10th Circuit.