Amicus Curiae Brief — Our Lady of Guadalupe School, Petitioner v. Agnes Morrissey-Berru

Supreme Court briefFeb 10, 2020

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Nos. 19-267, 19-348

In The

Supreme Court of the United States

_______________

OUR LADY OF GUADALUPE SCHOOL,

Petitioner,

AGNES MORRISSEY-BERRU,

Respondent.

________________

ST. JAMES SCHOOL,

Petitioner,

DANIEL BIEL, AS PERSONAL REPRESENTATIVE OF THE

ESTATE OF KRISTEN BIEL,

Respondent.

________________

On Writs of Certiorari to the

United States Court of Appeals for the Ninth Circuit

AMICUS BRIEF OF THE AMERICAN CENTER FOR

LAW AND JUSTICE IN SUPPORT OF

PETITIONERS

JAY ALAN SEKULOW

Counsel of Record

STUART J. ROTH

COLBY M. MAY

LAURA B. HERNANDEZ

AMERICAN CENTER FOR

LAW & JUSTICE

201 Maryland Ave. NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ...................................... ii

INTEREST OF AMICUS ............................................ 1

SUMMARY OF THE ARGUMENT ............................ 1

ARGUMENT ...............................................................2

The Religious Autonomy Principle

Requires the Judiciary to Defer to

Religious Organizations’

Determinations about Which

Employees Serve as “Ministers” ......................2

II.

This Court Has Held in Many Other

Contexts that Judicial Deference Is

an Essential Means of Safeguarding

Institutional Autonomy ....................................6

A. Judicial Deference in Other First

Amendment Cases ......................................6

B. Judicial Deference in Cases Where

Institutional Autonomy Derives from

Other Constitutional Principles .................7

C. Other Cases Holding that Judicial

Deference Is Appropriate ............................9

CONCLUSION ..........................................................12

TABLE OF AUTHORITIES

Page(s)

Cases

Ambach v. Norwick,

441 U.S. 68 (1979) ................................................. 7

Bd. of Educ. v. Pico,

457 U.S. 853 (1982) ............................................... 7

Biel v. St. James Sch.,

911 F.3d 603 (9th Cir. 2018)............................. 3, 4

Boy Scouts of Am. v. Dale,

530 U.S. 640 (2000) ......................................... 7, 10

Cheney v. U.S. Dist. Court for Dist. of Columbia,

542 U.S. 367 (2004) ............................................... 8

Democratic Party of United States v. Wisconsin,

450 U.S. 107 (1981) ............................................... 7

Employment Div. v. Smith,

494 U.S. 872 (1990) ............................................. 10

Goldman v. Weinberger,

475 U.S. 503 (1986) ............................................... 9

Grutter v. Bollinger,

539 U.S. 306 (2003) ............................................... 6

Holder v. Humanitarian Law Project,

561 U.S. 1 (2010)................................................... 8

iii

Hosanna-Tabor Evangelical Lutheran Church &

Sch. v. EEOC,

565 U.S. 171 (2012) ...................................... passim

Kedroff v. Saint Nicholas Cathedral of Russian

Orthodox Church in North America,

344 U.S. 94 (1952) ................................................. 3

Keyishian v. Bd. of Regents,

385 U.S. 589 (1967) ............................................... 6

Lemon v. Kurtzman,

403 U.S. 602 (1971) ............................................... 4

Meek v. Pittenger,

421 U.S. 349 (1975) ............................................... 4

Nixon v. Fitzgerald,

457 U.S. 731 (1982) ............................................... 8

NLRB v. Catholic Bishop of Chicago,

440 U.S. 490 (1979) ..................................... 4, 5, 11

Orloff v. Willoughby,

345 U.S. 83 (1953) ................................................. 9

Pell v. Procunier,

417 U.S. 817 (1974) ............................................. 10

Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ............................................... 1

Quackenbush v. Allstate Ins. Co.,

517 U.S. 706 (1996) ............................................... 9

Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ............................................... 7

Regents of Univ. of Mich. v. Ewing,

474 U.S. 214 (1985) ............................................... 6

Sterlinski v. Catholic Bishop of Chi.,

934 F.3d 568 (7th Cir. 2019)................................. 5

Theard v. United States,

354 U.S. 278 (1957) ............................................... 9

Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ............................................... 7

Turner v. Safley,

482 U.S. 78 (1987) ............................................... 10

Watson v. Jones,

80 U.S. 679 (1872) ................................................. 3

Wolman v. Walter,

433 U.S. 229 (1977) ............................................... 4

Other Authorities

Christopher C. Lund, In Defense of The Ministerial

Exception,

90 N.C.L. Rev. 1 (2011) ......................................... 2

Gerard V. Bradley, Forum Juridicum: Church

Autonomy in the Constitutional Order: The End

of Church and State?,

49 La. L. Rev. 1057 (1987) .................................... 3

INTEREST OF AMICUS*

The American Center for Law and Justice (ACLJ)

is an organization dedicated to the defense of

constitutional liberties secured by law. ACLJ

attorneys have frequently appeared before this Court

as counsel either for a party, e.g., Pleasant Grove City

v. Summum, 555 U.S. 460 (2009) or for amicus, e.g.,

Hosanna-Tabor Evangelical Lutheran Church & Sch.

v. EEOC, 565 U.S. 171 (2012). The proper resolution

of this case is a matter of utmost concern to the ACLJ

because of its dedication to religious freedom.

SUMMARY OF THE ARGUMENT

The animating principle of the ministerial

exception is preservation of religious autonomy. In

every other context where institutional autonomy has

been an important consideration, this Court has

consistently accorded a significant degree of deference

to the institution’s decisions. The Court has been

particularly reluctant to second-guess an institution’s

management of its internal affairs when the

institution’s autonomy is grounded in a specific

* Counsel of record for Petitioners filed with the Court a blanket

consent to the filing of amicus briefs. Counsel of record for

Respondents consented to the filing of this amicus brief. No

counsel for any party in this case authored this brief in whole or

in part. No person or entity aside from Amicus, its members, or

its respective counsel made a monetary contribution to the

preparation or submission of this brief.

constitutional provision, or when the internal

operation of the institution lies beyond judicial ken.

Because religious autonomy is anchored in the

Religion Clauses, as well as in the right to expressive

association, and because the internal operation of

religious schools (like public schools) lies outside

judicial ken, deference to religious schools in

ministerial exception cases is especially appropriate.

Indeed, denial of deference in ministerial exception

cases would single out religious organizations for

discriminatory treatment and drain the religious

autonomy principle of the vigor it deserves under the

First Amendment.

ARGUMENT

The

Religious

Autonomy

Principle

Requires the Judiciary to Defer to

Religious Organizations’ Determinations

about Which Employees Serve as

“Ministers.”

Religious autonomy is, at a minimum, “a principle

of deference.” Christopher C. Lund, In Defense of The

Ministerial Exception, 90 N.C.L. Rev. 1, 16 (2011).

Grounded as it is in the First Amendment, religious

autonomy safeguards “a religious group’s right to

shape its own faith and mission through its

appointments.”

Hosanna-Tabor

Evangelical

Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 173

(2012). Religious autonomy is the “flagship” religious

liberty issue and the “litmus test” of the Nation’s

“commitment to genuine spiritual freedom.” Gerard

V. Bradley, Forum Juridicum: Church Autonomy in

the Constitutional Order: The End of Church and

State?, 49 La. L. Rev. 1057, 1061 (1987).

Accordingly, this Court’s religious autonomy

decisions recognize a “spirit of freedom for religious

organizations, an independence from secular control

or manipulation--in short, power to decide for

themselves, free from state interference, matters of

church government as well as those of faith and

doctrine.” Hosanna-Tabor, 565 U.S. at 186 (citing

Kedroff v. Saint Nicholas Cathedral of Russian

Orthodox Church in North America, 344 U.S. 94, 116

(1952)); see also Watson v. Jones, 80 U.S. 679, 726–27

(1872) (discussing the control and judgment of

religious organizations over their members).

It is doubtless for that reason that this Court

rejected a “rigid formula for deciding when an

employee qualifies as a minister.” Hosanna-Tabor,

565 U.S. at 190. Rigid formulas on the one hand, and

amorphous standards like the Ninth Circuit’s

“totality of the circumstances” test, Biel v. St. James

Sch., 911 F.3d 603, 614 (9th Cir. 2018), raise the risk

that secular authorities will second-guess religious

groups’ choices about “who will preach their beliefs,

teach their faith, and carry out their mission.”

Hosanna-Tabor, 565 U.S. at 196; see also id. at 197

(Thomas, J., concurring) (“A religious organization’s

right to choose its ministers would be hollow,

however, if secular courts could second-guess the

organization’s sincere determination that a given

employee is a ‘minister’ under the organization’s

theological tenets.”); see also id. at 198 (Alito, J.,

Kagan, J., concurring) (“It would be a mistake if the

term ‘minister’ or the concept of ordination were

viewed as central to the important issue of religious

autonomy that is presented in cases like this one.”).

As this Court has acknowledged, religious schools

assume a major role in teaching religious faith and

values to the next generation. NLRB v. Catholic

Bishop of Chicago, 440 U.S. 490, 503 (1979) (“[T]he

raison d’etre of parochial schools is the propagation of

a religious faith.”) (quoting Lemon v. Kurtzman, 403

U.S. 602, 628 (1971) (Douglas, J., concurring)). And it

is the teachers who fulfill “the critical and unique

role” of both teaching and modeling the faith to the

schools’ students. NLRB, 440 U.S. at 501. Teachers at

many religious educational institutions are expected

to integrate their faith with any subject they teach,

whether theology, math, or physical education. See,

e.g., Wolman v. Walter, 433 U.S. 229, 253–54 (1977);

Meek v. Pittenger, 421 U.S. 349, 370–71 (1975).

“Religious authority necessarily pervades the

[religious] school system.” NLRB, 440 U.S. at 501.

Accordingly, attempts to categorize teacher functions

as secular or religious raise the risk of encroachment

upon the “former autonomous position of [religious

school] management.” Id. at 503 (citation omitted).

The Ninth Circuit’s decisions in the instant cases

illustrate the damage to religious autonomy that

results from judicial second-guessing of religious

schools’ good faith determinations that a teacher

plays an instrumental role in teaching and

exemplifying the schools’ religious values. As the

Seventh Circuit pointed out, the Ninth Circuit in Biel

made its own “independent assessment, essentially

disregarding what [the school thought] . . . about its

own organization and operations.” Sterlinski v.

Catholic Bishop of Chi., 934 F.3d 568, 570 (7th Cir.

2019). Rejecting the schools’ assessments of Catholic

theology and their internal organizations, the Ninth

Circuit ran roughshod over the schools’ religious

autonomy as well as their First Amendment

associational rights.

important

safeguard

against

such

encroachment on religious school autonomy is judicial

deference to the religious school’s assessment of

which employees perform religious functions and

qualify as ministers:

The question whether an employee is a

minister is itself religious in nature, and the

answer will vary widely. Judicial attempts to

fashion a civil definition of “minister” through

a bright-line test or multifactor analysis risk

disadvantaging those religious groups whose

beliefs, practices, and membership are

outside of the “Mainstream” or unpalatable to

some.

Hosanna-Tabor, 565 U.S. at 197 (Thomas, J.,

concurring); see also NLRB, 440 U.S. at 495 (holding

that the NLRB’s attempt to distinguish “completely

religious” schools from “merely religious” schools is

unworkable because it implicates “very sensitive

questions of faith and tradition”).

In every other context where respect for

institutional autonomy has been an important

consideration, this Court has granted some degree of

deference to the institution’s decisions. Given the

inextricable link between religious institutional

autonomy and religious liberty, judicial deference is

doubly warranted in ministerial exception cases.

II.

This Court Has Held in Many Other

Contexts that Judicial Deference Is an

Essential

Means

Safeguarding

Institutional Autonomy.

Judicial deference is a rule of thumb in many other

contexts where institutional autonomy is an

important constitutionally-grounded principle.

A. Judicial Deference

Amendment Cases

Other

First

In First Amendment cases involving academic

freedom and expressive association, the Court has

afforded substantial deference to the institution’s

management of its internal operations. Because

academic freedom is “a special concern of the First

Amendment,” Keyishian v. Bd. of Regents, 385 U.S.

589, 603 (1967), the Court has required deference to

the academy’s “autonomous decision-making.”

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 226

& n.12 (1985) (noting the Court’s “reluctance to trench

on the prerogatives of state and local educational

institutions and our responsibility to safeguard their

academic freedom”); see also Grutter v. Bollinger, 539

U.S. 306, 328–30 (2003) (citing the Court’s “tradition

of giving a degree of deference to a university’s

academic

decisions,

within

constitutionally

prescribed limits”); Regents of Univ. of Cal. v. Bakke,

438 U.S. 265, 312 (1978) (plurality) (stating that

academic

freedom

means

that

educational

institutions may choose “who may teach, what may be

taught, how it shall be taught, and who may be

admitted to study”).

This deference has extended to lower public school

decisions as well. Because public schools are essential

to “the preparation of individuals for participation as

citizens,” and are vehicles for “inculcating

fundamental values necessary to the maintenance of

a democratic political system,” Ambach v. Norwick,

441 U.S. 68, 76–77 (1979), federal courts “should not

ordinarily intervene in the resolution of conflicts

which arise in the daily operation of school systems.”

Bd. of Educ. v. Pico, 457 U.S. 853, 861 (1982) (citing

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S.

503, 507 (1969)).

Where the First Amendment right to expressive

association is at stake, this Court has held it

appropriate to “give deference to an association’s

assertions regarding the nature of its expression,” as

well as its “view of what would impair its expression.”

Boy Scouts of Am. v. Dale, 530 U.S. 640, 653 (2000);

see also Democratic Party of United States v.

Wisconsin, 450 U.S. 107, 123–24 (1981).

B. Judicial Deference in Cases Where

Institutional Autonomy Derives from

Other Constitutional Principles

The Court has held that institutional autonomy

requires judicial deference to the institution’s

decisions when necessary to uphold other

constitutional principles, such as separation of

powers and federalism. A few examples suffice:

Deference to Executive Branch—Nixon v.

Fitzgerald, 457 U.S. 731, 753 (1982)

(recognizing “the President’s constitutional

responsibilities and status as factors

counseling

judicial

deference

and

restraint”); Cheney v. U.S. Dist. Court for

Dist. of Columbia, 542 U.S. 367, 385 (2004)

(noting that “special considerations control

when the Executive Branch’s interests in

maintaining the autonomy of its office and

safeguarding the confidentiality of its

communications are implicated”).

Deference

Congress—Holder

Humanitarian Law Project, 561 U.S. 1, 36

(2010) (noting that on matters of national

security, Congress’s “superior capacity for

weighing competing interests means that

‘we must be particularly careful not to

substitute our judgment of what is desirable

for that of Congress’”) (citation omitted).

Deference to State courts—The federal

abstention doctrines derive from “deference

to the paramount interests of another

sovereign, and the concern is with

principles of comity and federalism.”

Quackenbush v. Allstate Ins. Co., 517 U.S.

706, 723 (1996); see also Theard v. United

States, 354 U.S. 278, 281 (1957) (holding

that a state’s autonomous control over the

practice of law requires general deference

by federal courts to state courts concerning

methods by which to regulate the state bar).

C. Other Cases Holding that

Deference Is Appropriate

Judicial

Even in cases where institutional autonomy is not

necessarily grounded in constitutional principles, the

Court has required deference to the institution’s

internal operation decisions where management of

the institution lies beyond judicial ken.

Deference to the Military—The Court has

accorded substantial deference to the

military’s decision-making autonomy when

the propriety of duty assignments is

questioned. E.g., Orloff v. Willoughby, 345

U.S. 83, 93–94 (1953) (holding that the

special nature of military life has supported

the military establishment’s broad power to

deal with its own personnel); Goldman v.

Weinberger, 475 U.S. 503, 507 (1986)

(noting that judicial review of military

regulations

challenged

First

Amendment grounds is far more deferential

than constitutional review of similar laws or

regulations designed for civilian society).

Deference to Correctional Institutions—

Deference to prison officials is warranted

because prison security decisions are

“peculiarly within the province and

professional expertise of corrections

officials.” Pell v. Procunier, 417 U.S. 817,

827 (1974). Constitutional challenges by

inmates should therefore be reviewed under

a deferential standard of review. Turner v.

Safley, 482 U.S. 78, 89 (1987).

It follows from the foregoing precedents that

judicial deference should be at its zenith in

ministerial exception cases. Unlike academic

freedom, religious autonomy is anchored in two

separate guarantees of the First Amendment – the

Free Exercise Clause and the Establishment Clause,

which both give “special solicitude to the rights of

religious organizations.” Hosanna-Tabor, 565 U.S. at

189.

Additionally, the First Amendment right to

expressive association requires judicial deference to

religious organization personnel decisions. See Dale,

530 U.S. at 653. Because religious organizations are

quintessentially “dedicated to the collective

expression and propagation of shared religious

ideals,” deference should apply “with special force.”

Hosanna-Tabor, 565 U.S. at 200–01 (Alito, J., Kagan,

J., concurring); see also Employment Div. v. Smith,

494 U.S. 872, 882 (1990) (noting that the

constitutional interest in freedom of association may

be “reinforced by Free Exercise Clause concerns”).

Finally, judicial deference to religious school

personnel decisions is supported in this Court’s cases

granting deference to an educational institution’s

operation of its own internal affairs. Management of

religious schools—as is true with public schools—is

beyond judicial ken. Judicial second-guessing of

religious school determinations about which teachers

teach and model the faith is a direct assault on the

institution’s autonomous decision-making. See

NLRB, 440 U.S. at 503.

In light of this Court’s other deference cases, there

can be no principled basis for denying substantial

deference to a religious school’s good faith

determination about which of its teachers possess the

character and conduct to be credible messengers of its

religious beliefs. Withholding such deference would

effectively impose unique disabilities on religious

organizations. Amicus accordingly urges this Court to

hold that the religious autonomy principle mandates

robust judicial deference to a religious organization’s

determination about which employees qualify as

ministers.

CONCLUSION

Amicus respectfully requests this Court to reverse

the Ninth Circuit.

Respectfully submitted,