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

Supreme Court briefMar 11, 2020

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Text

Nos. 19-267 & 19-348

IN THE

Supreme Court of the United States

————

OUR LADY OF GUADALUPE SCHOOL,

Petitioner,

AGNES MORRISEY-BERRU,

Respondent.

————

ST. JAMES SCHOOL,

Petitioner,

DARRYL 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

————

BRIEF AMICI CURIAE OF THE

CENTER FOR INQUIRY, INC.,

AMERICAN ATHEISTS, INC., AND THE

AMERICAN HUMANIST ASSOCIATION,

IN SUPPORT OF RESPONDENTS

————

NICHOLAS J. LITTLE

CENTER FOR INQUIRY, INC.

1012 14th St. NW,

Suite 205

Washington, DC 20005

EDWARD TABASH

Counsel of Record

11500 West Olympic Blvd.,

Suite 400

Los Angeles, CA 90064

(310) 279-5120

etabash@centerforinquiry.org

[Additional Counsel Listed On Inside Cover]

WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D. C. 20002

ALISON M. GILL

AMERICAN ATHEISTS

718 7th St. NW,

Washington DC 20001

MONICA L MILLER

AMERICAN HUMANIST

ASSOCIATION

1821 Jefferson Place NW,

Washington DC 20036

TABLE OF CONTENTS

Page

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

iii

STATEMENT OF THE INTEREST ...................

SUMMARY OF ARGUMENT .............................

ARGUMENT ........................................................

I. THE FIRST AMENDMENT REQUIRES

A NARROW MINISTERIAL EXCEPTION..........................................................

A. The Establishment Clause limits the

scope of the ministerial exception .......

B. Any ministerial exception must be

narrow ..................................................

II. A BROAD EXEMPTION WOULD

CAUSE MAJOR DAMAGE ......................

A. Religious schools dominate the

private school sector ............................

B. Religious hospital groups are widespread...................................................

C. An expansive exception may not be

limited to non-profit organizations .....

III. THE PURPOSE OF THE CIVIL RIGHTS

LAWS ........................................................

IV. RELIGIOUS GROUPS HAVE SOUGHT

TO PLAY BOTH SIDES OF THE

FENCE ......................................................

A. Demands for exemptions from laws of

general applicability ............................

B. Demands for access to public funding

(i)

TABLE OF CONTENTS—Continued

Page

C. The future of the proper interpretation of the Establishment Clause is

uncertain ..............................................

CONCLUSION ....................................................

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Aliciea-Hernandez v. Cath. Bishop of Chi.,

320 F.3d 698 (7th Cir. 2003) .....................

Biel v. St. James. Sch.,

911 F.3d 693 (9th Cir. 2018) .....................

Bob Jones University v. U.S.,

461 US. 574 (1983) ....................................

Burwell v. Hobby Lobby Stores, Inc.,

573 U.S. 682 (2014) ......................... 5, 17, 18, 25

Corp. of Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos,

482 U.S. 327 (1987) ................................... 10, 14

Employment Div., Dep’t of Human

Resources of Oregon v. Smith,

494 U.S. 872 (1990) .................................. 7-8, 25

Epperson v. Ark.,

393 U.S. 97 (1968) ....................................passim

Espinoza v. Montana Dept. of Revenue,

393 Mont. 446 (2018), cert. granted

June 28, 2019 (Docket No. 18-1195,

arguments heard Jan. 22, 2020) ..............

Est. of Thornton v. Caldor, Inc.,

472 U.S. 703 (1985) ...................................

Everson v. Bd. of Educ.,

330 U.S. 1 (1947) .......................................

Fulton v. City of Phila.,

922 F.3d 140 (3d Cir. 2019), cert.

granted by Fulton v. Phila., 2020 U.S.

LEXIS 961 (U.S., Feb. 24, 2020). ............. 26, 28

TABLE OF AUTHORITIES—Continued

Page(s)

Geneva College v. Sec’y United States H.H.S.,

778 F.3d 422 (3rd Cir. 2015).....................

Gomez v. Evangelical Lutheran Church in

Am., No. 1:07CV786, 2008 U.S. Dist.

LEXIS 61143 (M.D.N.C. Aug 7, 2008) .....

Gonzalez v. Roman Archbishop of Manila,

280 U.S. 1 (1929) ....................................... 9, 10

Grussgott v. Milwaukee Jewish Day Sch., Inc.,

882 F.3d 655 (7th Cir. 2018) .....................

Holt v Hobbes,

574 U.S. 352 (2015) ...................................

Hosanna-Tabor Evangelical Lutheran

Church & School v. EEOC,

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

Jones v. Wolf,

443 U.S. 595 (1979) ...................................

Kedroff v. St. Nicholas Cathedral of

Russian Orthodox Church in N. Am.,

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

Lemon v. Kurtzman,

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

Loving v. Virginia,

388 U.S. 1 (1967) .......................................

Masterpiece Cakeshop, Ltd. v. Colorado

Civil Rights Comm’n,

138 S. Ct. 1719 (2018) ...............................

Newman v. Piggy Park Enterprises, Inc.,

390 U.S. 400 (1968) ...................................

TABLE OF AUTHORITIES—Continued

Page(s)

Presbyterian Church in the U.S. v.

Mary Elizabeth Blue Hull Memorial

Presbyterian Church,

393 U.S. 440 (1969) ...................................

Roberts v. U.S. Jaycees,

468 U.S. 609 (1984) ...................................

Rosati v. Toledo, Ohio Cath. Diocese,

233 F. Supp. 2d 917 (N.D. Ohio 2002) ....

Skrzypczak v. Roman Cath. Diocese of

Tulsa, 611 F.3d 1238 (10th Cir. 2010) .....

T.W.A. v. Hardison,

432 U.S. 63 (1977) .....................................

Trinity Lutheran Church of Columbia, Inc.

v. Comer,

137 S. Ct. 2012 (2017) ...............................

United States v. Lee,

455 U.S. 252 (1982) ...................................

Walz v. Tax Comm’n of City of New York,

397 U.S. 664 (1970) ................................... 2, 24

Washington v. Arlene’s Flowers, Inc.,

193 Wn.2d 469 (Wash. 2019), petition

for cert filed, Sept. 11, 2019 ......................

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ...................................

Zubik v. Burwell,

136 S. Ct. 1557 (2016) ...............................

TABLE OF AUTHORITIES—Continued

CONSTITUTION

Page(s)

U.S. Const. amend. I ...................................passim

U.S. Const. amend. XIV ...............................

STATUTES

Age Discrimination in Employment Act, 29

U.S.C. § 621-29 (1967) .............................. 8, 10

Americans with Disabilities Act, 24 U.S.C.

§ 12101 et seq. (1990) ...............................

Patient Protection and Affordable Care

Act, 42 U.S.C. § 18001 et seq. (2010) .......

Religious Freedom Restoration Act, 42

U.S.C. § 2000bb et seq. (1993) ............ 17, 18, 25

Religious Land Use and Institutionalized

Persons Act, 42 U.S.C. § 2000cc et seq.

(2000) .........................................................

Title VII of the Civil Rights Act, 42 U.S.C.

§ 2000e et seq. (1964) ............................ 8, 10, 22

OTHER AUTHORITIES

Anna Barry-Jester & Ameia ThomsonDeVeaux, How Catholic Bishops are

Shaping Healthcare in Rural America,

FiveThirtyEight (July 25, 2018), https://

fivethirtyeight.com/features/how-catholicbishops-are-shaping-health-care-in-ruralamerica/ .....................................................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Brian Grim, Religion may be bigger

business than we thought. Here’s why,

World Economic Forum (Jan. 5, 2017),

https://www.weforum.org/agenda/2017/0

1/religion-bigger-business-than-we-thou

ght/.............................................................

Characteristics of Private Schools in the

US, National Center for Education

Statistics (Aug. 15, 2017), available at

https://nces.ed.gov/pubsearch/pubsinfo.a

sp?pubid=2017073 ....................................

Church Educational System Honor Code,

BYU University Policies, https://policy.

byu.edu/view/index.php?p=26 (last visited

Mar. 6, 2020) .............................................

Colleges and Universities with Religious

Affiliations, Encyclopedia.com (Jan. 26,

2020), https://www.encyclopedia.com/edu

cation/encyclopedias-almanacs-transcriptsand-maps/colleges-and-universities-relig

ious-affiliations .........................................

Ellie Domborwski, Catholicism at Notre

Dame, The Observer (Feb. 8. 2019),

https://ndsmcobserver.com/2019/02/cath

olicism-at-notre-dame/ ..............................

Facts, Council for American Private Education, https://www.capenet.org/facts.html

(last visited Mar. 6, 2020) .........................

viii

TABLE OF AUTHORITIES—Continued

Page(s)

May 2018 National Industry-Specific Occupational Employment and Wage Estimates,

NAICS 622000 – Hospitals, U.S. Bureau

of Labor Statistics, available at https://

www.bls.gov/oes/2018/may/naics3_62200

0.htm .........................................................

Melanie Burney and Kristen Graham,

Catholic schools have fewer nuns, but

those who remain inspire, Philadelphia

Inquirer, (Apr. 21, 2018) available at

https://www.inquirer.com/philly/news/ne

w_jersey/catholic-school-teachers-nuns-dec

line-holy-cross-academy-new-jersey-2018

0421.html ..................................................

Morgan Wegner, Secular Students at Religious Colleges, Best Colleges Blog (May

31, 2019), https://www.bestcolleges.com/

blog/secular-students-at-religious-colleges/ .

Nina Martin, The Growth of Catholic

Hospitals by the Numbers, ProPublica

(Dec. 18, 2013), https://www.propublica.

org/article/the-growth-of-catholic-hospita

ls-by-the-numbers .....................................

Religious exemptions and LGBT service

providers, SAGE (Jan. 4, 2018), https://

www.sageusa.org/news-posts/religious-exe

mptions-and-lgbt-elder-services/ ..............

TABLE OF AUTHORITIES—Continued

Page(s)

The Growth of Religious Health Care Systems,

Advancing New Standards in Reproductive Health, UCSF, https://www.ansirh.

org/research/growth-religious-healthcaresystems (last visited Mar. 6, 2020) ..........

Uta-Renate

Blumenthal,

Investiture

Controversy, Encyclopaedia Brittanica,

https://www.britannica.com/event/Investi

ture-Controversy (last visited Mar. 3,

2020) ..........................................................

STATEMENT OF INTEREST

This amici curiae brief in support of the respondents

is being filed on behalf of the Center for Inquiry (CFI),

American Atheists, Inc. (American Atheists), and the

American Humanist Association (AHA). Amici are nonprofit corporations and have been granted 501(c)(3)

status by the IRS. None has a parent company nor

have they issued stock.1

CFI is a non-profit educational organization dedicated to promoting and defending reason, science, and

freedom of inquiry. Through education, research, publishing, social services, and other activities, including

litigation, CFI encourages evidence-based inquiry into

science, pseudoscience, medicine and health, religion,

and ethics. CFI believes that the separation of church

and state is vital to the maintenance of a free society

that allows for a reasoned exchange of ideas about

public policy.

American Atheists is a national civil rights organization that works to achieve religious equality for

all Americans by protecting what Thomas Jefferson

called the “wall of separation” between government and religion created by the First Amendment.

American Atheists strives to promote understanding of

atheists through education, advocacy, and communitybuilding; works to end the stigma associated with

atheism; and fosters an environment where bigotry

against our community is rejected.

All parties have consented to this amicus. No counsel for a

party authored this brief in whole or in part, and no party or

counsel for a party made a monetary contribution intended to

fund its preparation or submission. No person other than amici

and their counsel made a monetary contribution to the preparation or submission of this brief.

The AHA is a national nonprofit membership organization based in Washington, D.C. Founded in 1941,

the AHA is the nation’s oldest and largest humanist

organization. The AHA has tens of thousands of

members and over 242 local chapters and affiliates

across the country. Humanism is a progressive lifestance that affirms—without theism or other supernatural beliefs—our responsibility to lead meaningful

and ethical lives that add to the greater good of

humanity.

The mission of the AHA’s legal center is to protect

one of the most fundamental principles of our democracy: the separation of church and state. To that end,

the AHA has litigated dozens of First Amendment

cases nationwide, including in the U.S. Supreme

Court.

SUMMARY OF ARGUMENT

The legal relationship between church and state in

the United States stands at a crossroads. The great

achievement spearheaded by Thomas Jefferson and

James Madison, guaranteeing both religious freedom

and government neutrality “between religion and religion, and between religion and nonreligion,” Epperson

v. Ark., 393 U.S. 97, 104 (1968) is under threat. The

separation of church and state, that cornerstone of the

American republic, which has spared the United

States from the religious conflict and destruction all

too familiar to the Europe from where the Framers

descended, is at risk. In case after case, religious

groups have sought to expand the “play in the joints,”

Walz v. Tax Comm’n of City of New York, 397 U.S. 664,

669 (1970), that exists between the First Amendment’s

Free Exercise Clause and its Establishment Clause.

Indeed, they have sought to widen that gap to such a

degree that the Establishment Clause risks becoming

a dead letter, that would prevent nothing more than

the creation of a government-run Church of the United

States of America.

Religious groups have sought access to state funding

across the board. When it comes to access to public

funds, the notion that religious groups should be treated differently than secular ones raises howls of religious protest. Churches claim they must be treated

exactly the same as comparable non-religious groups.

They want religious providers of services to the public

to have equal access to funding. They do not want

religious groups to be excluded from state subsidies.

Religious schools demand access to public money that

is distributed in the form of vouchers and scholarships.

Religious groups are insistent that when it comes to

lining up for the financial benefits of participation in

modern society, they shall not be denied their place.

Yet when the question of bearing the responsibilities

of membership in society is raised, the response from

religious groups is fundamentally different. It is then

that they demand special treatment. They want to be

recognized as different and to be exempt from the

application of the basic laws that allow for a functional, pluralistic society. At the same time religious

providers of social services seek money from tax

payers for their work. They seek the ability to refuse

to provide a full range of program services and the

right to refuse not only to provide services to a particular individual but also to refuse referral or even

disclosure that such services can be received elsewhere. Religious employers seek, and have frequently

attained, exemptions from the civil rights laws society

has deemed necessary to protect those susceptible to

suffering discrimination. Religious individuals claim

that their businesses should be exempt from laws

governing the provision of health care coverage

to their employees. They further claim even when

exemptions are granted that those exemptions do not

go far enough, and that signing a form to take

advantage of such an exception is, in itself, a religious

imposition.

But in the cases now before this Court, the Catholic

schools in question seek to push the envelope even

further. They seek to take the ministerial exception, a

historically-rooted doctrine which, grounded in the

First Amendment, defends the right of religious ministries to determine their own leaders without government interference, and expand it into an allencompassing special privilege. If the Court accepts

the arguments of petitioners, it opens the door to a

ministerial exception that cannot be sensibly limited.

It tells those employees of religious groups that they

have no recourse to the courts, no access to justice, if

their employers decide to terminate them for any reason, be it gender, race, or based on a medical condition.

Employers need not even advise these employees

that the employers have retained such an absolute

right of termination. The ministerial exception as

envisioned by the petitioners goes far beyond defending their right to make merely religious-based

decisions. Instead, it is one that allows them carte

blanche to determine which employees are subject to

the exception, in order to be able to terminate them for

any reason.

Lawyers for petitioners, the Becket Fund for

Religious Liberty, have been honest about petitioners’

aim here. They do not seek a narrow ministerial exception that protects religious groups against government

interference in the selection of their leaders and

preachers. Instead, they describes the ministerial

exception as “something of a misnomer.” Brief of Pet

at 7, n.1. They want complete “ecclesiastical immunity.” Id. Petitioners in this case seek to lift religious

employers completely out of the realm of legal accountability and government regulation, and create a

special legal right so that, if the employer merely

defines a position as “ministerial,” any legal inquiry

must come to a halt.

The scope of this expansion would be staggering.

Religious schools dominate the area of private education. However, any such decision could not logically be

limited to education. If a teacher who a Catholic school

did not require to be a Catholic is deemed ministerial

and subject to exclusion from legal recourse, how can

employees at religious hospitals be expected to have

greater rights? Can a hospital group define its employees as ministerial, spreading their mission through

their healing work and thereby exempt itself from all

employment discrimination laws? Decisions such as

Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682

(2014) have blurred the boundaries between religious

non-profit employers and for-profit ones, leaving no

clear line as to who would or wouldn’t qualify for such

an exemption.

This Court in these and other cases must decide if

the Establishment Clause still applies. If petitioners

receive the “ecclesiastical immunity” they seek, then

teachers at secular private schools will be protected by

civil rights protections such as the Americans with

Disabilities Act and the Age Discrimination in

Employment Act, while otherwise identical educators

in religious private schools will not be. This differen-

tial treatment, based solely on religion, would constitute a violation of the neutrality that the Establishment Clause guarantees. Amici accept the necessity of

the ministerial exception pertaining to true religious

leaders. However, its expansion as sought here would

violate the Establishment Clause.

ARGUMENT

I. THE FIRST AMENDMENT REQUIRES A

NARROW MINISTERIAL EXCEPTION

Amici do not come before this Court to argue that

there is no ministerial exception. As this Court ruled

in Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC, the exception “ensures that the

authority to select and control who will minister to the

faithful—a matter ‘strictly ecclesiastical,’ is the

church’s alone.” 561 U.S. 171, 194-95 (2012) (quoting

Kedroff v. St. Nicholas Cathedral of Russian Orthodox

Church in N. Am., 344 U.S. 94, 119 (1952)). It would

be clearly inappropriate in a country founded upon

religious freedom and secular government for the government to require, for example, that the Roman

Catholic Church should ordain women priests, or that

an Orthodox synagogue should appoint a female rabbi.

Such decisions go to the heart of the doctrines of

religious organizations.

No religious group could be considered truly free if

its leadership were appointed by the state. Indeed,

such conflicts have characterized the relationships

between church and state since at least the Eleventh

Century and the Investiture Controversy that pitted

Pope Gregory VII against Holy Roman Emperor Henry

IV. It was such battles that Chief Justice Roberts

referenced in his opinion in Hosanna-Tabor, 561 U.S.

at 182-84, and which formed “the background [against

which] the First Amendment was adopted.” Id. at 183.

The Framers, then, were fully aware of the dangers

of having the government choose religious leaders. Not

only would such a selection deny religious freedom for

the religions themselves, it would also represent the

very establishment that the Bill of Rights sought to

oppose. In Britain, after all, Church of England

bishops were appointed by the head of state, and took

seats in the upper chamber, the House of Lords. The

right of a religion to pick its own leaders, spokespeople, or ministers is central to the religious freedom and

freedom from establishment guaranteed by the First

Amendment.

A. The Establishment Clause limits the

scope of the ministerial exception

Were this narrow exception all that petitioners are

seeking, this would be an easy case. However, petitioners seek to expand this idea of freedom to select their

religious leaders into a blanket “ecclesiastical immunity,” a broad doctrine which would isolate and protect

any religious group from state scrutiny of any of its

employment decisions, regardless of whether religious

doctrines are involved.

Such an expansive protection from society’s rules

has no basis in the Constitution. This Court has made

clear that the First Amendment provides no exemptions from laws of general applicability. Employment

Uta-Renate Blumenthal, Investiture Controversy, Encyclopaedia Brittanica, https://www.britannica.com/event/InvestitureControversy (last visited Mar. 3, 2020).

Div., Dep’t of Human Resources of Oregon v. Smith,

494 U.S. 872, 878-9 (1990). The ministerial exception,

therefore, cannot emanate from a free exercise right to

be exempt from laws such as the Age Discrimination

in Employment Act (ADEA), 29 U.S.C. § 621-29 (1967),

the Americans with Disabilities Act (ADA), 24 U.S.C.

§ 12101 et seq. (1990), or Title VII of the Civil Rights

Act (Title VII), 42 U.S.C. § 2000e et seq. (1964). There

exists no such free exercise right to avoid complying

with these laws of general applicability.

Any claim to a constitutionally mandated, free exercise exception here must coexist with the restrictions

that the Establishment Clause places upon government action. As the first freedom referenced in the Bill

of Rights, the Establishment Clause requires that

“Congress shall make no law respecting an establishment of religion.” U.S. Const. amend. I. As this Court

has ruled, this prevents government favoritism and

support either for one religion over others, or in favor

of religion in general. Epperson, 393 U.S. at 104 (“The

First Amendment mandates government neutrality

between religion and religion, and between religion

and nonreligion.”). An exemption going beyond the

constitutional norm of equal applicability of all laws to

all individuals and organizations violates the Establishment Clause.

The harm to be avoided is not state adjudication of

matters involving religious groups. Such adjudication

is commonplace, and, as this Court has long held,

“[c]ivil courts do not inhibit the free exercise of religion

merely by opening their doors to disputes.” Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull

Memorial Presbyterian Church, 393 U.S. 440, 449

(1969). What civil courts may not constitutionally do,

however, is rule on matters that are “purely ecclesi-

astical.” Gonzalez v. Roman Archbishop of Manila, 280

U.S. 1, 16 (1929). Where such a question of doctrinal

interpretation exists, the matter is internal to the religious group, and “civil courts must defer to the ‘authoritative resolution of a dispute within the church

itself.’” Jones v. Wolf, 443 U.S. 595, 605 (1979).

B. Any ministerial exception must be narrow

If the purpose of a ministerial exception is to prevent

the state’s appointing religious leaders and officiants,

and thereby interfering with the conduct of religious

practice, its scope must be limited to only such

situations. To do otherwise would simply be to grant

legal privileges to only religious organizations as

opposed to non-religious ones. This would constitute a

violation of the government neutrality guaranteed

by the Establishment Clause. A violation of the

Establishment Clause would occur if a secular private

school is subject to the strictures of the Americans

with Disabilities Act when determining whether to

end the employment of a woman with breast cancer,

but a religious school is not.

Exceptions are by their nature narrow. They are

departures from the norm of universal applicability,

which is the very principle that underlies a nation of

laws. If cast as broadly as the “ecclesiastical immunity” sought by petitioners, the exception would swallow the rule in its entirety. Granting religious groups

the right to ignore employment protection laws when

it comes to decisions regarding their leaders is sufficient. It cannot, though, be extended to allow all

employees in any capacity to be regarded as religious

leaders for the sole purpose of depriving them of

generally applicable employment rights, unrelated to

a denomination’s doctrine.

There is then a clear dividing line when seeking to

limit the scope of the ministerial exception. It exists as

needed to prevent the type of harm to religious freedom that occurs when courts attempt to rule on

“purely ecclesiastical” matters. Gonzalez, 280 U.S. at

16. The ministerial exception should not be available

to religious groups if doctrinal questions are not

involved. Here, neither petitioner presents any religious practice issue that should be beyond the power

of civil courts to adjudicate.

The legislative exemptions present in Title VII and

the ADEA already include such a restriction. In creating the exemptions, Congress took the notion of a

ministerial exception, and applied it to all employees

of religious non-profits, but specifically limited to the

granting of employment preference to co-religionists.

In Corp. of Presiding Bishop of the Church of Jesus

Christ of Latter-Day Saints v. Amos, 482 U.S. 327, 330

(1987), this Court held that this did not violate the

Establishment Clause.3 The situation here, however,

is much broader. There is no claim that these teacher

terminations were based on theological considerations. Petitioners seek instead a sweeping right to

ignore employment law in any situation.

That this Court has chosen to extend the ministerial

exception beyond the clear line requirement of a

religious doctrinal issue in Hosanna-Tabor, does not,

however, mean that it should continue to be expanded

without limit. Hosanna-Tabor, 565 U.S. at 194. As

Justice Alito noted in concurrence, “religious authorities must be free to determine who is qualified to serve

Amici believe this decision to be incorrect, and that such a

broad reaching exemption violates the government neutrality

towards religion guaranteed by the First Amendment.

in positions of substantial religious importance.” Id. at

200 (Alito, J. concurring) (emphasis added). Where a

position does not meet this high bar, there can be no

exception. As the Court has recognized, there is no

hard and fast rule as to which positions are of substantial enough religious importance. However, it should

be necessary, though not sufficient, that a religious

group considers a position religious enough to require

that it be filled by a member of that faith. If a religious

organization determines that any person is eligible for

a particular position (as was the case with Respondent

Biel, Biel v. St. James. Sch., 911 F.3d 693, 605 (9th

Cir. 2018), then it stretches credulity for that same

religious group to later claim that a civil court would

threaten its religious freedom and independence by

adjudicating a matter concerning the termination of

such employees.

To keep within the proper boundaries, and not the

sweeping immunity petitioners admit to seeking, Brief

of Pet. at 7 n.1, the ministerial exception should apply

only in cases where the position has a true, unmistakable religious purpose. Petitioners should not be able

simply to point to a single or a limited religious element in a position, such as supervising prayers, or

teaching religious classes along with secular subjects,

and then assert a claim that a job is now so central to

the religious mission that no court can adjudicate the

legality of termination of employment. Petitioners

claim not only that their schools may legally terminate

teachers for religious reasons, they further insist

that they may terminate teachers for explicitly nonreligious reasons. If upheld, petitioners’ position

would allow unlimited scope in terminating any

employee, regardless of that employee’s actual duties.

II. A BROAD EXEMPTION WOULD CAUSE

MAJOR DAMAGE

A. Religious schools dominate the private

school sector

Private education plays a very significant role in the

U.S. system. In 2015-16, one quarter of American

schools, or almost 35,000 individual schools, made up

the private sector for Pre-Kindergarten to Grade 12.4

These schools enrolled over 5,750,000 students, or

more than 10% of the total school enrollment in the

nation.5 Of these students, 78.4% attend religious private schools.6 Private schools provide almost a half

million full time equivalent teaching positions, of

which 69.8% are at religious schools.7

Of course, private education in the United States is

not limited to pre-kindergarten through 12th grade. At

the level of higher education, there are 1,700 private,

non-profit colleges and universities.8 Of these schools,

nearly 1,000 have a religious affiliation.9 The degree of

religiosity of each particular institution of higher

Facts, Council for American Private Education, https://www.

capenet.org/facts.html (last visited Mar. 6, 2020).

Id.

Characteristics of Private Schools in the US, National Center

for Education Statistics (Aug. 15, 2017), available at https://nces.

ed.gov/pubsearch/pubsinfo.asp?pubid=2017073.

Id.

Morgan Wegner, Secular Students at Religious Colleges, Best

Colleges Blog (May 31, 2019), https://www.bestcolleges.com/blog/

secular-students-at-religious-colleges/.

Colleges and Universities with Religious Affiliations,

Encyclopedia.com, (Jan. 26, 2020), https://www.encyclopedia.

com/education/encyclopedias-almanacs-transcripts-and-maps/col

leges-and-universities-religious-affiliations.

learning of course varies. Some schools were founded

by a religious group and have largely moved away

from association with that group. Others remain

closely tied both in the public eye and in their

demographics with a particular religious organization.10 Others still maintain a strict religious code of

conduct.11

Millions of students in America are educated at

religious institutions. Hundreds of thousands of teachers, lecturers, and professors are employed by them.

The days of Catholic schools being staffed completely

by nuns who have dedicated their lives to service to

the Church are long gone. In 2018, teachers from religious orders (nuns and monks) numbered only 3,000

in the US Catholic school system, only 3% of Catholic

school staff.12 The number of nuns in the nation has

fallen from 180,000 in 1965 to 45,000 in 2018.13 And

the average age of those remaining as teachers has

risen. In one order it was 71 in 2008 and 77 in 2018.14

The University of Notre Dame, for example, reports that

80% of its student body is Roman Catholic. Ellie Domborwski,

Catholicism at Notre Dame, The Observer (Feb. 8. 2019), https://

ndsmcobserver.com/2019/02/catholicism-at-notre-dame/.

For example, Brigham Young University forbids behavior by

students including sexual relations outside of heterosexual marriage, use of profane and vulgar language, and the consumption

of coffee or tea. Church Educational System Honor Code, BYU

University Policies, https://policy.byu.edu/view/index.php?p=26

(last visited Mar. 6, 2020).

Melanie Burney and Kristen Graham, Catholic schools have

fewer nuns, but those who remain inspire, Philadelphia Inquirer,

(Apr. 21, 2018) available at https://www.inquirer.com/philly/

news/new_jersey/catholic-school-teachers-nuns-decline-holy-crossacademy-new-jersey-20180421.html.

Id.

It seems unlikely that the trend of religious schools’

employing lay teachers will reverse itself.

Any decision by this Court that allows religious

schools to claim immunity from the protections for

their teaching employees afforded by labor and civil

rights laws will adversely impact high numbers of

teachers. While this Court referenced the importance

of certainty for the employer, Hosanna-Tabor, 565

U.S. at 197 (Thomas, J., concurring) (“Fear of potential

liability might affect the way an organization carried

out what it understood to be its religious mission” citing Amos, 483 U.S. at 336), no consideration was given

to the absence of certainty for an employee. Whether

civil rights laws will protect an employee against dismissal is an extremely important factor that allows

that individual to plan for the future. A lay teacher,

whose job title contains no religious reference, and

who was not even required to be a member of the faith

of her employing organization, would have no advance

warning that a diagnosis of breast cancer would lead

to her termination, which would also result in the loss

of her health insurance coverage.

B. Religious hospital groups are widespread

Sweeping as the impact of petitioners’ claimed

“ecclesiastical immunity” would be on the large numbers of Americans employed in the private education

sphere, there is nothing in the theology or legal theory

of the ministerial exception that would limit its scope

to only religious schools. Religious groups maintain

that religious schools are integral to their mission.

Such schools are one of the core ways in which they

spread their faith. However, religious organizations

also provide a range of other services and equally see

such services as required by their faith and integral to

proselytizing. Religiously affiliated providers are common in health care in the United States, from hospital

groups, to care facilities for the elderly, to social service providers. All these areas would be adversely

impacted by an unlimited ministerial exception.

In 2016, after a long period of hospital consolidation

resulting from significant growth of religiously affiliated hospital groups, one fifth of hospital beds in the

United States were located in religiously affiliated

hospitals.15 Three quarters of these religious hospitals

were part of Catholic groups, and four of the ten largest health care systems in the United States were

Catholic.16 Between 2001 and 2016, while the number

of hospitals overall shrunk, the number of Catholic

hospitals in the US rose by 22%. In Washington state,

for example, more than 40% of hospital beds in 2016

were in Catholic hospitals.17 From 2001 to 2011, looking only at acute care facilities, the number of secular

non-profit facilities fell by 12%. The number of public

facilities fell by 31%, and the number of Catholic nonprofit acute care facilities rose by 16%.18

The Growth of Religious Health Care Systems, Advancing

New Standards in Reproductive Health, UCSF, https://

www.ansirh.org/research/growth-religious-healthcare-systems

(last visited Mar. 6, 2020).

Id.

Anna Barry-Jester & Ameia Thomson-DeVeaux, How

Catholic Bishops are Shaping Healthcare in Rural America,

FiveThirtyEight (July 25, 2018), https://fivethirtyeight.com/fea

tures/how-catholic-bishops-are-shaping-health-care-in-ruralamerica/.

Nina Martin, The Growth of Catholic Hospitals by the

Numbers, ProPublica (Dec. 18, 2013), https://www.propublica.

org/article/the-growth-of-catholic-hospitals-by-the-numbers.

In hospitals in the United States, over three million

people are employed in the area of “Healthcare practitioners and Technical Occupations.”19 Assuming staffing rates are stable between religious non-profit hospitals and others, this represents over 670,000 workers employed by religious non-profit hospitals to provide health care to patients, and thus to further the

religious based mission of the organization. This number, of course, does not include groups such as counsellors and educators employed by the hospitals, who

equally can be seen as advancing the religious goals of

the organization.

Moreover, approximately 85% of non-profit retirement communities are religiously based.20 Religious

organizations exist across the entire spectrum of

providing services. For example, religious communities in the United States provide 130,000 alcohol

recovery programs, 120,000 programs to help the

unemployed, and 26,000 active ministries for people

living with HIV.21 These programs range from small

volunteer run groups to larger, more established

endeavors with multiple paid employees. All of these

health care and social service programs can claim

their employees are acting to spread their religious

May 2018 National Industry-Specific Occupational Employment and Wage Estimates, NAICS 622000 – Hospitals, U.S.

Bureau of Labor Statistics, available at https://www.bls.gov/

oes/2018/may/naics3_622000.htm.

Religious exemptions and LGBT service providers, SAGE

(Jan. 4, 2018), https://www.sageusa.org/news-posts/religiousexemptions-and-lgbt-elder-services/.

Brian Grim, Religion may be bigger business than we

thought. Here’s why, World Economic Forum (Jan. 5, 2017),

https://www.weforum.org/agenda/2017/01/religion-bigger-busine

ss-than-we-thought/.

mission in the same way as would a teacher at a religious school. The expansive ecclesiastical immunity

sought by petitioners would then apply to all such

workers. Millions of American employees would thus

be removed from the coverage of civil rights employment laws.

C. An expansive exception may not be limited to non-profit organizations

A ministerial exception that was extended to include

teachers, doctors, nurses, alcohol and drug counsellors, retirement home coordinators, job skills trainers

and countless other types of workers employed by nonprofits would be damaging enough to the system of

laws designed to protect employees against discrimination. But as a result of recent legal decisions, it is

unclear that such an exemption could even be limited

to the non-profit sphere.

In Hobby Lobby, 573 U.S. at 690, this Court allowed

a for-profit closely held corporation to sue for an

exemption under the Religious Freedom Restoration

Act (RFRA). 42 U.S.C. § 2000bb et seq. (1993). The arts

and crafts store had sued, demanding the same

exemption from the contraceptive mandate of the

Patient Protection and Affordable Care Act (ACA), 42

U.S.C. § 18001 et seq. (2010), which religious nonprofits had been offered by the Department of Health

and Human Services. Hobby Lobby, 573 U.S. at 69899. Hobby Lobby’s statement of purpose commits its

religious owners to “[h]onoring the Lord in all [they]

do by operating the company in a manner consistent

with religious principles.” Id. at 703.

In finding that RFRA protected private, for-profit

corporations, this Court noted that, as with religious

non-profits, “furthering [for-profit corporations’] reli-

gious freedom also ‘furthers individual religious freedom.” Id. at 709. Because the owners of the corporation

were so closely identified with it, their religious goals

and missions were the goals and missions of the corporate entity. Requiring the corporation to provide insurance that includes methods of contraception alleged to

be abortifacients was no different in this Court’s

majority opinion than requiring the individual owners

to do so.

Applying the same rationale to the current situation, it is reasonable to wonder if a private, for-profit

organization, run on religious principles, could equally

claim that both its religious freedom and its ability to

further a religious mission were unconstitutionally

restricted by government interference in that organization’s employment decisions. A broad ministerial

exception, such as that suggested by Justice Thomas

would require civil courts “to defer to a religious

organization’s good-faith understanding of who qualifies as its minister,” Hosanna-Tabor, 565 U.S. at 196

(Thomas, J. concurring). If for-profit corporations can

assert the same rights as religious organizations, then

the religious owners of a for-profit corporation would

be entitled to the same accommodation of their good

faith determination of who best serves and advances

the religious mission of the corporation.22

If this Court gives petitioners the expansive ecclesiastical immunity which they seek, there is no limit to

how far this can reach. Allowing such a broad exemption, even if it could be restricted only to the field of

While Hobby Lobby, 573 U.S. at 717, dealt with a closely

held corporation, the case does not explicitly exclude publically

traded for-profit corporations from the same protections. Instead,

the Court noted that “it seems unlikely that the sort of corporate

giants to which HHS refers will often assert RFRA claims.” Id.

religious education, would already adversely impact

the lives of large numbers of American workers. Worse

yet, it is far from certain that it would even be possible

to restrict such immunity to only the sphere of religious education. It would undermine the very purpose

of civil rights laws regarding employment and also

privilege religion in such a way that would violate the

Establishment Clause. Any exception granted must

therefore remain quite narrow, tightly defining those

leadership positions covered. Otherwise, we will have

an expansive immunity that cannot be contained, and

that jeopardizes the rights of countless employees.

III. THE PURPOSE OF THE CIVIL RIGHTS

LAWS

Religious freedom is indeed a critical value in our

society. However, such freedom coexists with multiple

other values of equal importance. Therefore, when

determining the extent of a claimed religious exemption that impacts third parties, this Court must take

great care to ensure that the harm to those other individuals is avoided as much as possible.

There is no doubt that the exception sought here

harms third parties. The claimed right to hire and fire

at will, completely immunized from legal scrutiny, is a

right to discriminate against individuals who would

otherwise be protected by our nation’s civil rights and

employment laws. Such harm has long been recognized by this Court as a variable that must be considered. Est. of Thornton v. Caldor, Inc., 472 U.S. 703, 709

(1985) (striking down a Sabbath day law as a violation

of the Establishment Clause because it “took no account

of the interests of the employer or those of other

employees who do not observe a Sabbath.”)(emphasis

added); T.W.A. v. Hardison, 432 U.S. 63, 81 (1977)

(Sabbatarian employee had no right to a change in

shift structure as that change would “deprive another

employee of his shift preference at least in part

because he did not adhere to a religion that observed

the Saturday Sabbath.”); United States v. Lee, 455 U.S.

252, 261 (1982) (despite religious objections, Amish

employers must pay social security contributions for

their employees because not doing so would harm those

employees’ interests and would “operate [] to impose

the employer’s religious faith on the employees.”)

Congress has, over decades, worked to develop a

comprehensive structure of employment protection

through the civil rights non-discrimination laws. The

underlying concern behind these laws is the most

crucial value of equality. Just as our nation was born

on the principal of freedom of conscience in matters of

religion, additionally, “we are a free people whose

institutions are founded upon the doctrine of equality.”

Loving v. Virginia, 388 U.S. 1, 11 (1967). That path to

equality has been long and tortuous, strewn with

many setbacks along the way. Full equality for all has

not yet been achieved. Our commitment to equality,

generally, even as embodied in the Fourteenth

Amendment, is further bolstered by the mandate of

the religion clauses of the First Amendment requiring

the equality of both believers and nonbelievers. Such

equality is not served if only religious claimants have

exemptions from generally applicable laws that are

unavailable to anyone else.

In seeking to defend equality, Congress has enacted

a series of laws designed to protect equal opportunity

for all, not just confined to their relations with the government, but also in fundamental areas of life where

such equality has been historically absent. These laws,

which are designed to protect the fundamental human

dignity of everyone, regardless of race or religion, sex

or age, disability or other protected characteristics,

have long been upheld by this Court and repeatedly

recognized as serving “compelling state interests of the

highest order.” Roberts v. U.S. Jaycees, 468 U.S. 609,

624 (1984).

Where claims of religious freedom have come into

conflict with the government interest of preserving

equality, religious freedom has never been seen as entitled to some automatic priority which would immunize

the religious from having to abide by laws binding

on everyone else. Newman v. Piggy Park Enterprises,

Inc., 390 U.S. 400, 402 n.5 (1968) (describing as

“patently frivolous” the notion that the Civil Rights

Act was invalid and could not force a restaurant to

serve African American customers because of the

owner’s religious belief in segregation); Bob Jones

University v. U.S., 461 US. 574, 604 (1983) (“[A]

fundamental, overriding interest in eradicating racial

discrimination in education . . . substantially outweighs whatever burden denial of tax benefits” places

on a university which defended its racially discriminatory policies on religious grounds.)

Religious organizations already have the right not

to hire a woman priest or imam, based on the tenets of

their religion. The expanded ecclesiastical immunity

now sought by petitioners is the ability to hire and

fire23 anyone, for any reason whatsoever, even if

that reason is unavailable to other employers under

any civil rights law, and for the terminated individual

to have no legal recourse to challenge a religious

employer’s decision.

Such an exception would go beyond hiring and firing, to

include differential treatment with respect to pay and benefits,

and even allowing harassment.

The exception must be narrowly confined to pertain

to only those employees whose positions involve actual

religious leadership. As this Court has interpreted

the exception, no religious justification is required to

invoke it. “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when

it is made for a religious reason.” Hosanna-Tabor, 565

U.S. at 194. As applied, it has been held to negate the

need to “preclude any inquiry whatsoever into the

reasons behind a . . . ministerial employment decision.” Aliciea-Hernandez v. Cath. Bishop of Chi., 320

F.3d 698,703 (7th Cir. 2003). Petitioners here, by

claiming protection under the ministerial exception,

do not claim a religious reason for having terminated

respondents. The logical result of petitioners’ claims

would be that even if they terminated respondents for

being diagnosed with breast cancer, or for being

elderly, it simply does not matter.

There are already many cases of the ministerial

exception being claimed in such non-religious situations. E.g., Skrzypczak v. Roman Cath. Diocese of

Tulsa, 611 F.3d 1238, 1246 (10th Cir. 2010) (female

employee paid less than equivalent male employee);

Grussgott v. Milwaukee Jewish Day Sch., Inc., 882

F.3d 655, 657 (7th Cir. 2018) (teacher terminated after

diagnosis of brain tumor); Rosati v. Toledo, Ohio Cath.

Diocese, 233 F. Supp. 2d 917, 919 (N.D. Ohio 2002)

(trainee nun terminated, resulting in loss of health

insurance, after diagnosis of breast cancer); Gomez v.

Evangelical Lutheran Church in Am., No. 1:07CV786,

2008 U.S. Dist. LEXIS 61143, at *5 (M.D.N.C. Aug 7,

2008) (Title VII claims of minister alleging racial

abuse barred by ministerial exception).

When determining how far any exemption should

go, this Court must examine the costs of that exemp-

tion, especially those to be borne by innocent third

parties. Granting petitioners the sweeping immunity

they seek will adversely impact job security for millions of Americans, including those, such as racial

minorities, women, the disabled, and the elderly, for

whom Congress has enacted legislative protections. To

allow religious organizations carte blanche to discriminate in employment decisions regardless of theological

justifications, and then to refuse to look further,

granting deference “to a religious organization’s goodfaith understanding of who qualifies as its minister,”

Hosanna-Tabor, 565 U.S. at 196 (Thomas, J. concurring), is a recipe for unlimited immunity. This will

engender the return of invidious discrimination to

large swathes of the workforce.

IV. RELIGIOUS GROUPS HAVE SOUGHT TO

PLAY BOTH SIDES OF THE FENCE

The guaranteed freedom of religion is balanced by

the government neutrality promised in the Establishment Clause.

Government in our democracy, state and

national, must be neutral in matters of religious theory, doctrine, and practice. It may

not be hostile to any religion or to the advocacy of no-religion; and it may not aid, foster,

or promote religion or religious theory against

another or even against the militant opposite.

The First Amendment mandates government

neutrality between religion and religion, and

between religion and nonreligion.

Epperson, 393 U.S. at 103-04.

This neutrality is characterized by a balancing act.

The more special advantages and benefits that are

given to religious groups and individuals in the name

of protecting religious freedom (as opposed to comparably placed secular groups and individuals), the

further the balance tilts towards the religious favoritism prohibited by the Establishment Clause. In

between the protection of religious freedom guaranteed by the Free Exercise Clause, and the government

neutrality mandated by the Establishment Clause,

there exists a space where government action is permitted, but not constitutionally required.24 This Court

has referred to this area of permitted, though not

mandated action as “room for play in the joints.” Walz,

397 U.S. at 669. Recently, however, religious groups

have been seeking to place a finger on the scales and

to distort the balance, pushing for ever more benefits

and privileges for religion alone. They have sought

both to reduce the realm of government actions

prohibited by the Establishment Clause and increase

those commanded by the Free Exercise Clause. In

doing so, they distort Walz’s “play in the joints,” id.,

and seek to eliminate Epperson’s guarantee of government neutrality. 393 U.S. at 104. If these attempts are

successful, religious groups will have succeeded in

writing the Establishment Clause out of the Constitution.

A. Demands for exemptions from laws of

general applicability

Religious groups have repeatedly demanded exemptions from society’s laws, both for individual adherents

of their faith, and for organizations. As discussed

supra, this Court has determined that there is no

Of course, the scope of this space remains under dispute,

with amici seeking its reduction from the present understanding,

as well as opposing its existence. Current law, however, recognizes such space.

constitutionally mandated requirement for exemptions from laws of general applicability, unless they

were designed for the purpose of discriminating

against religion. Smith, 494 U.S. at 886. In his opinion, Justice Scalia warned that the alternative was

grim indeed, as “[a]ny society adopt[ing] such a system

would be courting anarchy.” Id. at 888. He noted that

America’s religious diversity, as well as its commitment to religious freedom, would make such a system

of exemptions impossible. Id. (“[P]recisely because we

value and protect that religious divergence, we cannot

afford the luxury of deeming presumptively invalid, as

applied to the religious objector, every regulation of

conduct that does not protect an interest of the highest

order.”)

Ignoring this warning, however, Congress passed

RFRA, and religious organizations have used both

that statute (along with the Religious Land Use and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. §

2000cc et seq. (2000) and the state level equivalents)

and claims under the First Amendment to continue to

seek exemptions from generally applicable laws and

policies. In Hobby Lobby, 573 U.S. 682, and Zubik v.

Burwell, 136 S. Ct. 1557 (2016), for-profit and nonprofit religious groups respectively demanded to be

exempt from complying with the Affordable Care Act’s

Contraceptive Mandate.25 In Holt v Hobbes, 574 U.S.

352, 356 (2015), a Muslim prisoner was granted an

exemption from a prison rule prohibiting the wearing

of beards. Religious groups have repeatedly claimed a

right of individual businesses, most notably in the

The non-profits, in fact, demanded an exemption from the

exemption, claiming that signing a form indicating they wished

not to comply was, itself, a religious burden. E.g. Geneva College

v. Sec’y United States H.H.S., 778 F.3d 422, 428 (3rd Cir. 2015).

area of marriage services, to be exempt from state laws

prohibiting discrimination based on sexual orientation. Masterpiece Cakeshop, Ltd. v. Colorado Civil

Rights Comm’n, 138 S. Ct. 1719 (2018) (baker who

refused to provide a same sex couple with a wedding

cake claimed religious freedom and freedom of speech

required him to be exempted from state nondiscrimination statute); Washington v. Arlene’s Flowers, Inc.,

193 Wn.2d 469 (Wash. 2019) (florist denied exemption

from anti-discrimination statute after refusal to

provide flowers for same sex couple), petition for cert

filed, Sept. 11, 2019. Religious groups that provide

social services, such as adoption agencies, have challenged rules that require all receivers of government

funds to provide such services without discrimination.

They claim that the enforcement of such a requirement violates their religious freedom. E.g. Fulton v.

City of Phila., 922 F.3d 140, 147 (3d Cir. 2019) (refusing injunction sought by Catholic adoption agency

which refused to place children with same sex couples), cert. granted by Fulton v. Phila., 2020 U.S.

LEXIS 961 (U.S., Feb. 24, 2020).

In all these cases, religious groups have asserted

that religious adherents, alone, should not be required

either to engage in activity or refrain from activity

that government may require or prohibit with respect

to everyone else. For only the religious to have such

exemptions violates the Establishment Clause.

B. Demands for access to public funding

This Court has historically often held that government bodies may not provide funding to religious

groups, for to do so would violate the Establishment

Clause. Everson v. Bd. of Educ., 330 U.S. 1, 16 (1947)

(“No tax in any amount, large or small, can be levied

to support any religious activities or institutions,

whatever they may be called, or whatever form they

may adopt to teach or practice religion.”); Lemon v.

Kurtzman, 403 U.S. 602, 607 (1971) (striking down a

state law that reimbursed religious schools for teachers’ salaries.). Yet this apparently self-evident notion,

along with stricter requirements held by 38 states in

the form of No Aid provisions in their constitutions,

have come under serious challenge as religious organizations, while simultaneously claiming a right to be

exempt from many of society’s laws, have demanded

access to society’s pocket book in the form of funding

for religious activities.

These funding claims have taken many forms.

Religious schools have insisted they are entitled to

receive tax payer dollars through voucher programs

which are made available to students in any state. E.g.

Zelman v. Simmons-Harris, 536 U.S. 639, 644 (2002)

(upholding the constitutionality of school vouchers’ in

Ohio being used at religious schools, provided the aid

was given to parents, not to the schools). Religious

organizations have pushed for more direct access to

government money. In Trinity Lutheran Church of

Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2025 (2017),

this Court ruled that Missouri could not exclude a

church from a program that provided public funds for

the resurfacing of children’s play areas, despite that

state’s No Aid provision, because this exclusion would

violate the rights of the church. More recently, in Espinoza

v. Montana Dept. of Revenue, 393 Mont. 446 (2018),

cert. granted June 28, 2019 (Docket No. 18-1195, arguments heard Jan. 22, 2020), this Court heard arguments that religious freedom similarly mandated a

state to allow religious schools to receive money from

its voucher program, again despite a state No Aid

clause. Religious groups have moved from arguing

that states may fund religious activities if they choose,

to arguing that if states fund any activities, they

cannot exclude religious groups from also receiving

such funds. And, as seen supra in Fulton, 922 F.3d

140, religious groups now claim that once they receive

such funds, they are entitled to special exemptions

from the requirements placed on secular recipients,

which are meant to guarantee equal treatment for the

beneficiaries of such publicly funded services.

C. The future of the proper interpretation

of the Establishment Clause is uncertain

The Establishment Clause, in the sense of government neutrality “between religion and religion, and

between religion and nonreligion,” Epperson, 393 U.S.

at 104, is under serious attack. In order to defend this

fundamental constitutional principle, this Court must

act to defend the principle of neutrality. Such neutrality is violated if petitioners are granted a special right

to ignore civil rights laws dealing with employment

discrimination for any position which they choose to

define as sufficiently ministerial. No secular group is

granted this right. Nor should it be. In order to preserve

the true meaning of the Establishment Clause, and to

show neutrality towards nonreligion, this Court must

therefore limit any ministerial exemption to cases in

which it is strictly necessary to defend the freedom of

a religious organization to appoint its own leaders

without government interference. Any definition of

what constitutes a leader must be sufficiently narrow

so that the exception remains just that. It must be a

true exception to the rule, not a sweeping “ecclesiastical immunity” that grants religious organizations,

religious non-profits, and even religious owned forprofit corporations the right to ignore the rules that

Congress has put in place to defend the fundamental

constitutional value of equality.

CONCLUSION

For the above reasons, this Court should affirm the

judgments of the U.S. Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

NICHOLAS J. LITTLE

CENTER FOR INQUIRY, INC.

1012 14th St. NW,

Suite 205

Washington, DC 20005

ALISON M. GILL

AMERICAN ATHEISTS

718 7th St. NW,

Washington DC 20001

March 11, 2020

EDWARD TABASH

Counsel of Record

11500 West Olympic Blvd.,

Suite 400

Los Angeles, CA 90064

(310) 279-5120

etabash@centerforinquiry.org

MONICA L MILLER

AMERICAN HUMANIST

ASSOCIATION

1821 Jefferson Place NW,

Washington DC 20036

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.