Justice Sonia Sotomayor. Photo: John Disney/ALM

The U.S. Supreme Court's Wednesday decision extending an exemption from federal job bias laws for church-run schools will open the door to discrimination against thousands of lay teachers, charged a dissenting Justice Sonia Sotomayor.

A 7-2 majority, led by Justice Samuel Alito, ruled that whether religious school teachers fall under the so-called "ministerial exception" depends "at bottom" on the scope of an employee's work.

In the case of two elementary Catholic school teachers who claimed they were fired because of age and disability discrimination, Alito wrote: "As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. A religious institution's explanation of the role of its employees in the life of the religion in question is important."

But Sotomayor, joined by Justice Ruth Bader Ginsburg, disagreed. The majority reached its result "even though the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic," Sotomayor said.

The two dissenters warned that the majority's "apparent deference here threatens to make nearly anyone whom the schools might hire 'ministers' unprotected from discrimination in the hiring process. That cannot be right." Sotomayor added, "The inherent injustice in the court's conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours."

The decision was the third in a religion-related case this term in which the justices ruled in favor of the party pressing a religious discrimination claim. The other two were Wednesday's ruling in Little Sisters of the Poor v. Pennsylvania, which upheld the Trump administration's effort to restrict access to contraceptives under Obamacare; and last week's decision in Espinoza v. Montana Dept. of Revenue, concerning a tax credit program restricting scholarships to parents of children attending religious schools. Sotomayor and Ginsburg dissented in both cases.

In the 2012 case Hosanna-Tabor Evangelical Lutheran Church v. EEOC, the high court unanimously ruled for the first time that the First Amendment bars employment discrimination claims when the employer is a religious group and the employee is one of the group's "ministers." The opinion, written by Chief Justice John Roberts Jr., used a multifactor analysis to decide whether the exception applied.

In the combined cases decided Wednesday—Our Lady of Guadalupe v. Morrissey-Berru, St. James School v. Biel—the justices were asked to revisit how the ministerial exception should be applied.

Agnes Morrissey-Berru claimed her teaching contract was not renewed because of her age.  Kristen Biel, whose teaching contract was not renewed shortly after she informed the school that she needed time off for breast cancer surgery and chemotherapy, died last summer. Her husband, representing her estate, was the respondent in the high court case. The U.S. Court of Appeals for the Ninth Circuit ruled in favor of both employees based on the totality of the circumstances surrounding their jobs.

The U.S. Equal Employment Opportunity Commission supported Biel's disability job bias claim in the lower courts as her religious school employer sought to bar it. But with a change in administrations, the agency's support vanished at the U.S. Supreme Court.

In the high court, the schools argued that the ministerial exception applies when the employee carried out important religious functions, including leadership, worship, ritual and expression. Eric Rassbach of the Becket Fund for Religious Liberty argued on behalf of both schools. Stanford Law School's Jeffrey Fisher represented Biel and Morrissey-Berru.

Solicitor General's office at Main Justice in Washington. Photo: Mike Scarcella/NLJ

The Justice department, represented by Morgan Ratner, an assistant to the solicitor general, contended that the ministerial exception applies to any employee "who preaches a church's beliefs, teaches its faith, or carries out its religious mission." In close cases, the government argued, "facts that demonstrate a religious organization sincerely regards its employee as performing such important religious functions should be dispositive."

Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, said the Supreme Court passed up an opportunity to "adopt a robust and nuanced test to govern these disputes, one that would have preserved religious institutions' ability to choose their ministers while also protecting the vast majority of employees from invidious discrimination."

Mach added: "Instead, the court appears to defer largely to the say-so of schools, essentially offering them a rubber stamp for discrimination."

Notre Dame Law School's Richard Garnett said in a statement: "Today's important decision does not mean, as some suggest, that religious institutions are above the law or that they have a 'license to discriminate.' It means, instead, that a crucial dimension of our Constitution's religious-freedom guarantee is that civil powers are limited to civil matters and that state lacks authority to second-guess religious decisions and doctrines."

Sotomayor called the majority decision "profoundly unfair." She continued: "The court is not only wrong on the facts, but its error also risks upending antidiscrimination protections for many employees of religious entities."