Opposition Brief — Gordon College, et al., Petitioners v. Margaret DeWeese-Boyd
Supreme Court briefNov 1, 2021
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No. 21-145
In the Supreme Court of the United States
GORDON COLLEGE, ET AL.,
Petitioners,
v.
MARGARET DEWEESE-BOYD,
Respondent.
On Petition for a Writ of Certiorari to
the Massachusetts Supreme Judicial Court
RESPONDENT’S BRIEF IN OPPOSITION
HILLARY SCHWAB
Fair Work P.C.
192 South St., Ste. 450
Boston, MA 02111
(617) 607-3261
RICHARD B. KATSKEE
BRADLEY GIRARD
Counsel of Record
SARAH GOETZ
GABRIELA HYBEL
Americans United for
Separation of Church
and State
1310 L St., NW, Ste. 200
Washington, DC 20005
(202) 466-3234
girard@au.org
Counsel for Respondent
i
QUESTIONS PRESENTED
Margaret DeWeese-Boyd sued for employment
discrimination when she was denied a full professorship at Gordon College, a Christian liberal-arts
school, despite being unanimously recommended for
the promotion. Gordon contended that she was a minister and therefore that her claims fail under the ministerial exception. The trial court disagreed but allowed Gordon to seek interlocutory review.
The Massachusetts Supreme Judicial Court determined that under the fact-based analysis in HosannaTabor Evangelical Lutheran Church & School v.
EEOC, 565 U.S. 171 (2012), and Our Lady of Guadalupe School v. Morrissey-Berru, 140 S. Ct. 2049 (2020),
DeWeese-Boyd was not a minister. The court determined that although Gordon had a general requirement that professors integrate their Christian faith
into their teaching and scholarship, DeWeese-Boyd’s
actual job responsibilities lacked the hallmarks of one
who plays a significant role in preaching or teaching
the faith. The court remanded so the parties could proceed with merits litigation.
The questions presented are:
1. Is the interlocutory ruling a final judgment under 28 U.S.C. § 1257(a)?
2. Did the Supreme Judicial Court err in determining that DeWeese-Boyd was not a minister because Gordon generally required that professors integrate their Christian faith into their work and teach
from a “Christian perspective”?
3. Should the Court overturn Hosanna-Tabor and
Morrissey-Berru to hold that an employee is a minister whenever the employer says so?
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ....................................... i
TABLE OF AUTHORITIES .......................................iv
INTRODUCTION ........................................................1
STATEMENT ..............................................................2
A. Factual Background .......................................2
1. DeWeese-Boyd’s Employment at
Gordon ......................................................2
2. DeWeese-Boyd’s First Promotion
and Tenure ...............................................3
3. DeWeese-Boyd’s Job Functions ...............4
4. Gordon’s Denial of DeWeeseBoyd’s Promotion .....................................7
B. Procedural Background ..................................8
REASONS FOR DENYING THE PETITION ..........12
I. There is no jurisdiction to hear this
case. ...............................................................12
A. The decision is not a final
judgment.................................................13
B. The decision does not satisfy any
exception to the finality
requirement. ...........................................14
II. Whether an “integration” policy
automatically renders all professors
ministers does not warrant this
Court’s review. ..............................................19
A. The decision of the Supreme
Judicial Court does not conflict
with this Court’s decisions. ....................20
B. There is no split in authority
among the lower courts. .........................23
iii
TABLE OF CONTENTS—continued
Page
C. This case is a poor vehicle to
address the question of integration
that the petition poses. ..........................27
1. If Gordon were to prevail in this
Court, it would not resolve the
case. ..................................................27
2. Gordon’s petition omits key
facts. .................................................28
3. The Supreme Judicial Court’s
decision will not trigger the
catastrophe that Gordon
imagines. ..........................................30
III. The Court should reject Gordon’s
request to overturn Hosanna-Tabor
and Morrissey-Berru. ....................................32
CONCLUSION ..........................................................33
iv
TABLE OF AUTHORITIES
Page(s)
Cases
Adarand Constructors, Inc. v. Mineta,
534 U.S. 103 (2001) ............................................. 28
Alicea-Hernandez v. Cath. Bishop of Chi.,
320 F.3d 698 (7th Cir. 2003) ......................... 26, 27
Cox Broad. Corp. v. Cohn,
420 U.S. 469 (1975) ................................. 14, 15, 16
EEOC v. Cath. Univ. of Am.,
83 F.3d 455 (D.C. Cir. 1996) ............................... 26
EEOC v. Miss. Coll.,
626 F.2d 477 (5th Cir. 1980) ............................... 24
EEOC v. Sw. Baptist Theological Seminary,
651 F.2d 277 (5th Cir. 1981) ............................... 24
Florida v. Thomas,
532 U.S. 774 (2001) ................................. 14, 15, 17
Flynt v. Ohio,
451 U.S. 619 (1981) ........................... 14, 17, 18, 19
Goodyear Atomic Corp. v. Miller,
486 U.S. 174 (1988) ............................................. 17
Grussgott v. Milwaukee Jewish Day Sch.,
882 F.3d 655 (7th Cir. 2018) ............................... 26
Hosanna-Tabor Evangelical Lutheran
Church & Sch. v. EEOC,
565 U.S. 171 (2012) ........................ i, 18, 25, 27, 32
Jefferson v. City of Tarrant,
522 U.S. 75 (1997) ......................................... 13, 14
Kant v. Lexington Theological Seminary,
426 S.W.3d 587 (Ky. 2014).................................. 25
Kirby v. Lexington Theological Seminary,
426 S.W.3d 597 (Ky. 2014).................................. 25
v
TABLE OF AUTHORITIES—continued
Page(s)
Local No. 438 Constr. & Gen.
Laborers’ Union v. Curry,
371 U.S. 542 (1963) ............................................. 17
Market St. Ry. Co. v. R.R. Comm’n of Cal.,
324 U.S. 548 (1945) ............................................. 13
Mercantile Nat’l Bank v. Langdeau,
371 U.S. 555 (1963) ............................................. 17
Miami Herald Publ’g Co. v. Tornillo,
418 U.S. 241 (1974) ............................................. 17
Mills v. Alabama,
384 U.S. 214 (1966) ............................................. 15
NCAA v. Smith,
525 U.S. 459 (1999) ............................................. 28
New York v. Quarles,
467 U.S. 649 (1984) ............................................. 16
O’Dell v. Espinoza,
456 U.S. 430 (1982) ............................................. 13
Our Lady of Guadalupe Sch. v.
Morrissey-Berru,
140 S. Ct. 2049 (2020) .................... i, 10, 11, 20, 21
22, 27, 32, 33
Peterson v. Hopson,
29 N.E.2d 140 (Mass. 1940) ................................ 14
Presbyterian Church in U.S. v. Mary Elizabeth
Blue Hull Mem’l Presbyterian Church,
393 U.S. 440 (1969) ............................................. 33
Radio Station WOW, Inc. v. Johnson,
326 U.S. 120 (1945) ....................................... 15, 16
Republic Nat. Gas Co. v. Oklahoma,
334 U.S. 62 (1948) ............................................... 12
vi
TABLE OF AUTHORITIES—continued
Page(s)
Zivotofsky ex rel. Zivotofsky v. Clinton,
566 U.S. 189 (2012) ............................................. 28
Constitution, Statutes, and Rules
U.S. Const. amend. I ...................................... 1, 17, 32
U.S. Const. amend. IV .............................................. 17
U.S. Const. amend. XIV ........................................... 17
28 U.S.C. § 1257(a) .......................................... i, 12, 13
28 U.S.C. § 1292(b) ..................................................... 9
Judiciary Act of 1789, § 25, 1 Stat. 85 ..................... 13
Sup. Ct. R. 10 ............................................................ 27
Sup. Ct. R. 14 ............................................................ 13
Mass. R. Civ. P. 64(a) ................................................. 9
Miscellaneous
William A. Kaplin & Barbara A. Lee, The Law
of Higher Education (4th ed. 2006) .................... 32
INTRODUCTION
Just two terms ago, this Court clarified the factdependent test for who qualifies as a minister for legal
purposes under the ministerial exception. On interlocutory appeal, the Massachusetts Supreme Judicial
Court carefully weighed those considerations and concluded that Professor Margaret DeWeese-Boyd was
not a minister.
Unhappy with that case-specific result, Gordon
now demands that this Court revisit Morrissey-Berru,
when few lower courts have even had a chance to apply it, and none have expressed any confusion.
But really, that is beside the point. For this Court
doesn’t have jurisdiction to hear the case. The decision
below was interlocutory, and the case has been remanded for merits litigation—in which Gordon may
raise its many remaining defenses, under the First
Amendment and otherwise.
Beyond ignoring the fatal jurisdictional defect, the
petition misconstrues both the facts and the holding
of the Massachusetts court. Even so, Gordon still fails
to find any split in authority, before or after HosannaTabor and Morrissey-Berru. And it neglects to mention that a decision in its favor would not end this
case, because there are issues yet to be litigated that
the Supreme Judicial Court did not address and that
the petition waives.
Failing to provide any reason why this Court
should—or even can—review this case, Gordon nonetheless insists that the Court must intervene now, revisit its own recent, considered decisions, and adopt a
per se rule that professors at religious colleges are
ministers for First Amendment purposes. Going yet
further, Gordon also asks the Court to scrap the legal
2
test of Hosanna-Tabor and Morrissey-Berru wholesale, and to hold instead that courts must afford absolute deference whenever a religious employer asserts
a good-faith belief that an employee is a minister, regardless of the employee’s actual job functions.
The issues that Gordon declines to acknowledge
are reason enough to deny the petition. And the issues
that it does raise only underscore why review is not
warranted. The petition should be denied.
STATEMENT
A. Factual Background
1. DeWeese-Boyd’s Employment at Gordon
For two decades, Margaret DeWeese-Boyd was a
professor of social work at Gordon College, Pet. App.
11a, 14a n.15, where she taught courses on general
social-work practice and sustainability and oversaw
social-work practicums, Pet. App. 24a; R.A. 403.
She obtained her master’s degree in general theological studies in 1993 and then pursued graduate
studies in social work and political science. R.A. 368.
In 1995, she completed her Master of Social Work,
with a focus on social and economic development and
a specialization in research methods. R.A. 368. She
then enrolled in two Ph.D. programs, one in social
work and one in political science. R.A. 368. She earned
her Ph.D. in political science in 1999. R.A. 380.
In 1998, DeWeese-Boyd applied for a tenure-track
position in Gordon College’s Department of Sociology
and Social Work. Pet. App. 49a; R.A. 342. Gordon is a
private, nondenominational-Christian, liberal-arts
college. Pet. App. 5a; R.A. 550.
3
In her cover letter, DeWeese-Boyd highlighted her
interdisciplinary background in social work and political science as well as her seminary training and previous mission work. R.A. 342. Her application materials described her teaching and research experience,
which was principally in the fields of statistics and
data analysis. R.A. 369. Her teaching areas included
“social policy; research methods; values and ethics;
the policy process; political thought; [and] community
development practice and theory.” R.A. 369. And she
described her plans for a research program addressing
questions of “self-governance, direct democracy, and
the importance of local—i.e., grassroots—institutions
for community development.” R.A. 374. She was hired
and started as a social-work professor in 1999. R.A.
377.
Once she arrived at Gordon and began teaching in
the “decidedly nonsectarian” field of social work, R.A.
391, DeWeese-Boyd used her interdisciplinary training to guide her research on “scholarly questions that
have moral and ethical significance beyond their academic merits,” R.A. 388. She later explained that she
understood her role as a Christian scholar to govern
how she would “guid[e] and mentor[] students,” R.A.
395, by encouraging her to treat her students with respect and equality; to rely on seminars, because that
classroom structure “best reflects the egalitarianism”
central to Christianity; and to try to mitigate power
differentials in the classroom. R.A. 396-97.
2. DeWeese-Boyd’s First Promotion and
Tenure
After three years, DeWeese-Boyd underwent her
first performance review. As part of the process, she
was required to submit a paper explaining her understanding of Gordon’s “integration” requirement—
4
namely, the requirement that faculty teach and approach scholarship from a Christian perspective and
integrate their faith into their work. See Pet. App.
125a. She submitted a scholarly book review. R.A.
382, 471. In an accompanying letter, she explained
that the paper reflected her view that her work was
“inherently integrated,” R.A. 382—i.e., it reflected
that her faith guided her selection of subjects on which
to focus her scholarship, R.A. 385. She was promoted
to associate professor in 2004. Pet. App. 13a.
When DeWeese-Boyd applied for tenure in 2008,
she was required to include a paper reflecting her “development of a Christian perspective” within her discipline. R.A. 268. The requirement was “not intended
to be a test of theological orthodoxy.” R.A. 268. She initially submitted a paper on land use and development, because it “showed by * * * example [her] understanding of integration.” R.A. 355. She was later
asked to submit work that more straightforwardly explained her understanding of integration. R.A. 355.
She then submitted a paper detailing that, for her, integration was “fundamentally about * * * pursuing
scholarship that is faithful to the mandates of Scripture, the vocational call of Christ, and the dictates of
conscience.” R.A. 388. She was awarded tenure in
2009. Pet. App. 13a.
3. DeWeese-Boyd’s Job Functions
DeWeese-Boyd taught in Gordon’s social-work
program, which is designed to educate students “for
entry level, generalist practice in social work within
the context of a Christian liberal arts institution.”
R.A. 418. The social-work handbook describes the program as being “informed by a Christian worldview” in
that it recognizes “the value and dignity of every person.” R.A. 418. Under that rubric, the program’s goals
5
include “alleviat[ing] poverty [and] oppression” and
promoting “social and economic justice.” R.A. 418.
Over time, DeWeese-Boyd’s administrative duties
largely supplanted her teaching responsibilities,
meaning that she spent less time with students in the
classroom. See Pet. App. 105a. She completed several
stints as Social Work Program Director. That role required coordinating course schedules and teaching
loads, overseeing faculty hiring, maintaining the program’s secular accreditation, compiling and reporting
program statistics, updating the program’s website,
and fostering partnerships with the surrounding community. R.A. 410, 610. She also took on the role of Social Work Practicum Director, in which she administered the placement of social-work students as interns
with outside organizations. R.A. 410, 610.
Never was DeWeese-Boyd required to teach religion, and she never did. Pet. App. 15a, 24a. Nor did
she perform other religious duties. Faculty are not required to lead prayers, and DeWeese-Boyd did not do
so; nor did she pray in the classroom. Pet. App. 15a,
24a. Faculty are not required to attend chapel services
with students, and again, DeWeese-Boyd didn’t. Pet.
App. 24a.
Gordon also did not require religious training or
confer special titles on faculty who had it. Pet.
App. 9a-10a. And though DeWeese-Boyd had studied
theology years before beginning at Gordon, R.A. 368,
she was not ordained or commissioned by any church
or denomination, Pet. App. 14a. Nor did she ever hold
herself out as a minister. Pet. App. 14a-15a. In 2016
she removed from her curriculum vitae her seminary
training because it was not relevant to her actual job
responsibilities at Gordon. R.A. 180-81.
6
Eighteen years into DeWeese-Boyd’s employment,
Gordon added language to its employee handbook that
for the first time described faculty as “both educators
and ministers to its students.” Pet. App. 119a. This
new language stated that faculty are “expected to participate actively in the spiritual formation” of students
and “seek to engage [the] students in meaningful ways
to strengthen them in their faith walks with Christ.”
Pet. App. 118a; R.A. 282.
That language was added without following the
standard process for amending the faculty handbook,
which included conferring with faculty. See R.A. 227.
A lawyer for Gordon explained at the time that the
changes were made to “shore up” Gordon’s governing
documents for “legal reasons” and to “trigger judicial
deference.” R.A. 670.
Though Gordon’s president has now said in a deposition that the college “memorialized the word ‘minister’” in the handbook in 2016 but already had “ministerial expectations” for its faculty, R.A. 486, that
was not the faculty’s understanding. Many faculty
members strongly objected to the new addition, calling it “disingenuous,” R.A. 626, and “legally dubious,”
R.A. 670, and stating forthrightly that “[w]e are not
real ministers,” R.A. 670. A formal letter from the Gordon chapter of the American Association of University
Professors, which included DeWeese-Boyd as a signatory, explained that the title change “wrongly describ[es] the faculty role within the College.” R.A. 65556.
Gordon now also points to its “Vision Day,” during
which it “commissions” faculty. Pet. 10. But that practice was adopted well after DeWeese-Boyd began her
employment, and she never participated in it. Pet.
App. 14a n.17; R.A. 468. Likewise, although Gordon’s
7
president now says that he tells new professors that
joining the faculty is like “joining a religious order,”
Pet. 7, he arrived at Gordon a decade after DeWeeseBoyd was hired, R.A. 481. There is nothing in the record to reflect that anything similar was ever communicated to or required of DeWeese-Boyd.
4. Gordon’s Denial of DeWeese-Boyd’s Promotion
In 2016, DeWeese-Boyd applied for a promotion to
full professor. Pet. App. 128a. Her application explained in detail her role in the Department of Sociology and Social Work, her teaching, her scholarship,
and her institutional service. R.A. 399-413. The descriptions were overwhelmingly secular. See R.A. 399413.
Her application did not say anything about teaching or transmitting the faith to Gordon students. It
did, however, reiterate that her faith had guided her
“personal and professional endeavors,” R.A. 399, explaining that, to her, Christian scholarship and integration means pursuing scholarship that has “moral
and ethical significance” beyond what is of merely academic interest, R.A. 407. Put another way, DeWeeseBoyd understood her work as aligning with her faith
but not as promoting it to others. See R.A. 407.
Her application went to the Faculty Senate, which
unanimously recommended her for the promotion.
Pet. App. 104a. The Faculty Senate reported that “the
only regret we have with respect to Margie’s teaching
is that her current social work program responsibilities mean that students have limited opportunities to
encounter her in the classroom.” Pet. App. 105a. And
it praised her scholarship and her institutional leadership of the social-work practicum. Pet. App. 105a-
8
106a. The Faculty Senate’s recommendation was devoid of references to religious or spiritual criteria. Pet.
App. 104a-107a.
Despite unanimous Faculty Senate support, Gordon’s president and provost declined to forward the
recommendation to the board of trustees—i.e., they
denied DeWeese-Boyd the promotion. Pet. App. 108a.
In a letter explaining why, the provost discussed her
teaching, scholarly output, institutional service, and
professionalism. Pet. App. 108a-111a. The letter made
no mention of the integration requirement and cited
no religious criteria weighing either in support of or
against her. Pet. App. 108a-111a. And though Gordon
now frames the dispute as being about a professor’s
rejecting a college’s core religious beliefs, Pet. 18, the
provost did not even hint at any such thing.
B. Procedural Background
In 2017, DeWeese-Boyd sued Gordon, its president, and its provost, asserting state-law claims for
retaliation and discrimination on the basis of sex; violation of the Massachusetts Civil Rights Act; breach of
contract; breach of the implied covenant of good faith
and fair dealing; and tortious interference with contractual relations. Pet. App. 38a. She also filed claims
before the Massachusetts Commission Against Discrimination and the EEOC. See R.A. 28.
The superior court bifurcated discovery to first address cross-motions for summary judgment on Gordon’s ministerial-exception defense. Pet. App. 37a,
39a. Gordon argued that DeWeese-Boyd’s claims
failed because the school labeled her a minister, expected her to integrate its religious message into her
teaching, and relied on her religious background when
hiring her. R.A. 74-75. DeWeese-Boyd argued that
9
Gordon’s affirmative defense failed because the evidence unequivocally demonstrated that she was “a
professor who studies and teaches social work-related
topics and has no religious or ministerial functions for
Gordon College.” R.A. 100. She also argued that even
if the ministerial exception applied to her, it did not
bar her contract claims. Pet. App. 57a.
The trial court determined that the ministerial exception did not apply. Pet. App. 77a. Although
“DeWeese-Boyd was expected to integrate the principles and concepts that underlie the Christian evangelical tradition with her teaching, she had no religious
duties and did not actively promote the tenets of evangelical Christianity.” Pet. App. 98a.
At Gordon’s request, the superior court reported
the summary-judgment order for interlocutory review
by the state’s Appeals Court. See Mass. R. Civ. P.
64(a).1 The question reported asked whether the superior court erred “in dismissing on summary judgment the affirmative defense of the ministerial exception.” Pet. App. 4a n.3. The Supreme Judicial Court
then accepted the appeal for direct review. Pet. App.
4a.
After Gordon filed its interlocutory appeal but before briefing, this Court issued its opinion in Morrissey-Berru. Gordon then argued that, under that decision, the expectation that DeWeese-Boyd would “integrate” faith into her teaching sufficed to bring her
within the ministerial exception. Defs. Br. 43-45. In
Like 28 U.S.C. § 1292(b) for federal courts, Massachusetts
Rule of Civil Procedure 64(a) gives the state’s trial courts discretion to allow parties to seek appellate review of an interlocutory
decision when it would lead to more efficient resolution of the
litigation.
1
10
response, DeWeese-Boyd argued that integration at
Gordon means only that professors must teach from a
religious perspective, not that they must include religious content in their lessons, so it is insufficient to
turn a social-work professor with no religious functions or responsibilities into a minister. Pl. Resp. Br.
22-23.
The Supreme Judicial Court unanimously concluded that the ministerial exception did not extend to
DeWeese-Boyd. Applying Hosanna-Tabor and Morrissey-Berru, the court observed that each factor of this
Court’s ministerial-exception analysis is important
but no individual factor is dispositive. Pet. App. 2a.
“What matters, at bottom, is what an employee does.”
Pet. App. 23a (quoting Morrissey-Berru, 140 S. Ct. at
2064). So the court focused on DeWeese-Boyd’s functions within the college. Pet. App. 24a-31a. “She was,
first and foremost, a professor of social work. She
taught classes on sustainability and general social
work practice and oversaw practicums.” Pet. App. 24a.
She did not “teach classes on religion, pray with her
students, or attend chapel with her students,” nor did
she “lead students in devotional exercises or lead
chapel services.” Pet. App. 24. The court treated those
differences from the plaintiffs in Hosanna-Tabor and
Morrissey-Berru as “significant” but not determinative. See Pet. App. 24.
In light of DeWeese-Boyd’s responsibility to teach
social work from a Christian perspective, the court
then considered the role of “integration” in its ministerial-exception analysis. “[S]ensitive to the judiciary’s necessarily limited understanding of any religious underpinnings of the concept of integration,” the
court looked to the school’s “handbook to illuminate
DeWeese-Boyd’s duties in this respect.” Pet. App. 24a
11
n.20. It accepted at face value the school’s new handbook language and determined based on it that the
provision was limited to requiring faculty to be “fully
prepared in all facets of their tasks as Christian teachers and advisors.” Pet. App. 26a. The “integrative
function” was “not tied to a sectarian curriculum.” Pet.
App. 27a. And though Gordon argued that being a
spiritual advisor was central to “what it means to be
faculty at a Christian college,” and “Christians have
an undeniable call to minister to others,” the court determined that for those features alone to render
DeWeese-Boyd a minister would “oversimplify the Supreme Court test, suggesting that all Christians
teaching at all Christian schools and colleges are necessarily ministers.” Pet. App. 26a.
After examining DeWeese-Boyd’s job duties and
her responsibility to teach from a Christian perspective, the court then turned to the remaining considerations identified in Hosanna-Tabor and MorrisseyBerru. It held that her title (Associate Professor of Social Work) and how she held herself out to the public
(she consistently rejected the ministerial label Gordon
later applied to all faculty) weighed against classifying her as a ministerial employee. Pet. App. 28a-29a,
31a. And while she did have some religious training,
she had not been required to receive the training for
her initial or continued employment, was not ordained, and was never formally commissioned by Gordon (or at all). Pet. App. 29a. The court also observed
that this Court has “cautioned against placing too
much weight on formal training.” Pet. App. 29a (citing
Morrissey-Berru, 140 S. Ct. at 2067-68). The court specifically acknowledged that “a case need not mirror”
Hosanna-Tabor and Morrissey-Berru for the ministerial exception to apply. Pet. App. 35a. “Here, however,
the facts are materially different.” Pet. App. 35a.
12
Because it concluded that DeWeese-Boyd was not
a ministerial employee, the court did not reach the
question whether the exception bars her contract
claims. Pet. App. 36a n.27. And because the court answered only the one reported question presented on
interlocutory appeal, it remanded for merits litigation, Pet. App. 36a, which is ongoing.
REASONS FOR DENYING THE PETITION
The Court should not and indeed cannot grant review here. As an initial matter, the Court does not
have jurisdiction to hear this case because the decision below is not a final judgment as required by 28
U.S.C. § 1257. But even if there were jurisdiction,
there would still be no reason for this Court to intervene. The Court should not review the first question
presented by the petition—whether general integration requirements make all professors ministerial employees. The Supreme Judicial Court followed this
Court’s guidance; there is no split of authority among
the lower courts; and this case is a bad vehicle to address the question. And the petition’s second question
asks this Court to overrule Hosanna-Tabor and Morrissey-Berru, yet Gordon fails to provide any good reason to do so.
I.
There is no jurisdiction to hear this case.
The party seeking review “has the burden of affirmatively establishing this Court’s jurisdiction.” Republic Nat. Gas Co. v. Oklahoma, 334 U.S. 62, 70-71
(1948). Under 28 U.S.C. § 1257(a), this Court’s jurisdiction is limited to final judgments or decrees of state
courts. Gordon generally asserts (at 1) that the Supreme Judicial Court’s decision was final under
1257(a), not even bothering to mention that it was in-
13
terlocutory. Nor could Gordon have shown that the decision satisfies any of the narrow exceptions to finality, had it seen fit to try. That alone is reason to deny
the petition.2
A. The decision is not a final judgment.
“From the earliest days of our judiciary,” Congress
has defined and limited this Court’s authority to review judgments of state courts of last resort “to cases
in which the State’s judgment is final.” Jefferson v.
City of Tarrant, 522 U.S. 75, 80 (1997) (citing Judiciary Act of 1789, § 25, 1 Stat. 85). Section 1257(a)’s
“firm final judgment rule,” id. at 81, requires a judgment to be final in two senses. First, it must not be
subject to further correction or review by the state
courts. Id. Second, it must end the litigation. “It must
be the final word of a final court.” Id. (quoting Market
St. Ry. Co. v. R.R. Comm’n of Cal., 324 U.S. 548, 551
(1945)). When a state court remands a case for merits
litigation, its decision is not final. O’Dell v. Espinoza,
456 U.S. 430, 430 (1982) (per curiam).
The first requirement is not satisfied. Merits discovery has only just begun. If, during that discovery,
“If review of a state-court judgment is sought,” the petitioners’
statement of the case must specify both when and how “the federal questions sought to be reviewed were raised * * * so as to
show that * * * this Court has jurisdiction.” Sup. Ct. R. 14.1(g)(i).
Aside from its boilerplate jurisdictional statement, the petition
says (at 16) that “The Massachusetts Supreme Judicial Court allowed Gordon a direct appeal, then affirmed,” making it appear
that Gordon bypassed the intermediate appellate court after the
trial court issued a final judgment. The petition acknowledges
only in passing (at 39) that there are “other issues remain[ing]
for trial.” Because Gordon failed to provide the requisite information under Rule 14 to enable this Court to determine its jurisdiction, the petition should be denied.
2
14
Gordon develops additional evidence relevant to
DeWeese-Boyd’s status, it may offer the evidence and
ask the trial court for a new determination on the ministerial exception. See generally Peterson v. Hopson,
29 N.E.2d 140, 144 (Mass. 1940).
But even if the decision were to satisfy the first
requirement, it would still fail the second: The decision was rendered in a discretionary interlocutory appeal, making it quintessentially nonfinal. See Jefferson, 522 U.S. at 80 n.2, 81. The Supreme Judicial
Court decided only whether one affirmative defense
applied, and then remanded for further proceedings
on the merits, which will include litigation of the
many other affirmative defenses that Gordon has asserted. Pet. App. 36a. What is more, DeWeese-Boyd
also has other, related claims pending before the
EEOC (No. 16C-2020-00237) and the Massachusetts
Commission Against Discrimination (No. 19-BEM03145), some of which cannot yet be brought to court
because of administrative-exhaustion requirements
but may later be added to the case in an amended complaint.
B. The decision does not satisfy any exception to the finality requirement.
Under narrow circumstances this Court has
“treated state-court judgments as final for jurisdictional purposes although there were further proceedings to take place in the state court.” Florida v.
Thomas, 532 U.S. 774, 777 (2001) (quoting Flynt v.
Ohio, 451 U.S. 619, 620-21 (1981) (per curiam)). Four
categories of cases potentially merit that treatment.
See Cox Broad. Corp. v. Cohn, 420 U.S. 469, 477
(1975). None apply here.
15
1. A case may be deemed final when the federal
issue is conclusively determined and the outcome of
the case is therefore preordained or a mere formality.
In Mills v. Alabama, 384 U.S. 214 (1966), for example,
the state court rejected a defendant’s only defense—a
challenge to the constitutionality of a criminal statute. Id. at 217. Because the defendant had no other
defenses, the final disposition of the case on remand
was set, and the case could be treated as effectively
final. Id. at 217-18.
Here, by contrast, the Supreme Judicial Court
considered and rejected just one of Gordon’s seventeen
affirmative defenses. See R.A. 45-48. The rest remain
to be litigated in full. And Gordon may also, of course,
argue that DeWeese-Boyd cannot make out a prima
facie case; it can try to rebut that showing if she succeeds; and if that rebuttal is successful, it can then argue that DeWeese-Boyd fails to meet her ultimate
burden of persuasion.
2. A case may be treated as final when the federal
issue is separate from the other issues and “will survive and require decision regardless of the outcome of
future state-court proceedings.” Cox, 420 U.S. at 480.
This element is satisfied only if “the state proceedings
to take place on remand ‘could not remotely give rise
to a federal question that may later come’” to this
Court. Thomas, 532 U.S. at 779 (quoting Cox, 420 U.S.
at 480) (cleaned up). In Radio Station WOW, Inc. v.
Johnson, 326 U.S. 120 (1945), for example, the state
court conclusively held that a federal radio license
must be transferred in a property dispute, remanding
solely for an accounting of the value of the property to
be transferred. Id. at 124. Although the proceedings
on remand technically continued the case, they could
not present or address any federal issue and were in
16
effect wholly separate, so the judgment on the only
federal question was final. See id. at 127.
Whether DeWeese-Boyd was a minister would not
“require decision regardless of the outcome of future
state-court proceedings,” Cox, 420 U.S. at 480. Most
obviously, Gordon could prevail on another ground, be
it legal or factual. And on remand Gordon may seek to
raise its other constitutional defenses, see R.A. 47, regardless of this interlocutory ruling. Because the merits litigation will therefore present additional federal
questions, the second Cox category cannot be satisfied.
3. This Court may have jurisdiction if “the federal
claim has been finally decided, with further proceedings on the merits in the state courts to come, but in
which later review of the federal issue cannot be had,
whatever the ultimate outcome of the case.” Cox, 420
U.S. at 481. In those situations, “if the party seeking
interim review ultimately prevails on the merits, the
federal issue will be mooted; if he were to lose on the
merits, however, the governing state law would not
permit him again to present his federal claims for review.” Id. The prime example is when a state court of
last resort decides a suppression motion in favor of a
criminal defendant and state law limits the right of
the state to appeal. See, e.g., New York v. Quarles, 467
U.S. 649, 653 (1984). In that instance, if the state prevails on remand, the federal question is moot; if the
state loses on remand, it is barred from appealing. In
other words, further review is categorically unavailable.
If DeWeese-Boyd prevails in the trial court, there
is nothing that would preclude Gordon from appealing
at that time, including seeking review in this Court
when the decision is actually final.
17
4. A decision may also be deemed final if the federal issue has been finally decided in the state court,
the party seeking review could prevail on nonfederal
grounds, reversal of the state court would be preclusive of any further litigation on the relevant cause of
action, and failure to review the case immediately
would seriously erode federal policy. See Thomas, 532
U.S. at 780.
Only truly exceptional issues have satisfied this
standard. For example, a Florida statute threatened
the existence of a free press when it forced any newspaper to print a political candidate’s reply to the newspaper’s criticism. See Miami Herald Publ’g Co. v.
Tornillo, 418 U.S. 241, 247 n.6 (1974). Matters of national security have also risen to this level. See Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 179-80
(1988). As have statutory guarantees that litigants
need not have their cases heard in certain venues or
state courts. See Local No. 438 Constr. & Gen. Laborers’ Union v. Curry, 371 U.S. 542, 548 (1963); Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558 (1963).
Although a constitutional issue may present the
potential for serious erosion of federal policy, the existence of a constitutional question alone is not
enough to create jurisdiction in this Court. Cf.
Thomas, 532 U.S. at 776, 780 (challenge to search of a
passenger compartment under the Fourth Amendment did not satisfy Cox); Flynt, 451 U.S. at 620, 622
(same for state court’s rejection of Fourteenth Amendment defense against discriminatory prosecution).
The fourth Cox category is not satisfied if “[t]he
question presented for review is whether on this record” the state court came to the wrong answer on how
to apply a legal standard. See Flynt, 451 U.S. at 622
18
(emphasis added). For if every case-specific application of a constitutional claim or defense were deemed
final, the exception would “swallow the rule.” Id. Any
constitutional “issue finally decided on an interlocutory appeal in the state courts would qualify for immediate review.” Id.
This case fails to satisfy the fourth Cox factor for
at least three reasons.
First, as explained above (at 13-14), the decision
of the Supreme Judicial Court did not conclusively resolve whether DeWeese-Boyd was a minister. Merits
discovery may turn up new information that may allow Gordon to seek to relitigate that affirmative defense.
Second, reversal of the Supreme Judicial Court
would not be dispositive of the issues on which Gordon
seeks review. As explained below, infra 27-28, the
Massachusetts courts did not decide the question, explicitly left open by Hosanna-Tabor, whether the ministerial exception precludes state-law contract claims.
And Gordon has waived that issue before this Court
by not raising it in the petition.
Finally, there is no federal policy at risk of being
seriously eroded by continuing litigation in this case.
The ministerial exception is a case-specific affirmative
defense. Hosanna-Tabor, 565 U.S. at 195 n.4. And the
question in this case is “whether on this record,” Flynt,
451 U.S. at 622, the Supreme Judicial Court correctly
applied Hosanna-Tabor and Morrissey-Berru. Even if
the court applied that standard incorrectly, Gordon
could always seek review at the end of the case—as
with any other affirmative defense. See, e.g., Flynt,
451 U.S. at 622. That Gordon might have to wait to
present all its federal defenses at once—if that even
19
becomes necessary—could not seriously erode any federal policy. Parties may wish to have this Court weigh
in early and often, but that is not how Section 1257
operates.
If all of that weren’t enough, “in most, if not all, of
the cases falling within the four [Cox] exceptions * * *
there were no other federal issues to be resolved” and
therefore “no probability of piecemeal review with respect to federal issues.” Flynt, 451 U.S. at 621. But as
just explained, there are a host of other federal issues
yet to be resolved in this case, including four additional constitutional defenses. See R.A. 45-48.
In sum, Gordon not only failed to meet its burden
to establish this Court’s jurisdiction under Cox, but it
failed to mention the issue at all. Because the decision
here is not final, this Court does not have jurisdiction.
That should end the matter—for now, anyway.
II. Whether an “integration” policy automatically renders all professors ministers does
not warrant this Court’s review.
Even if there were jurisdiction to hear this case,
the Court should not consider the first question presented—whether a professor at a religious college is a
minister solely because the college requires all professors to generally integrate their faith into their work.
The Supreme Judicial Court’s decision does not conflict with the decisions of this Court. There is no split
in authority among the circuit courts or the state
courts of last resort. And this case is a bad vehicle to
address Gordon’s question.
20
A. The decision of the Supreme Judicial
Court does not conflict with this Court’s
decisions.
Gordon’s contention that there is a conflict between this Court’s jurisprudence and the Supreme Judicial Court’s decision rests on a misunderstanding of
what both courts have said. Ultimately, Gordon’s
gripe is not that the Supreme Judicial Court departed
from this Court’s instructions, but that Gordon just
doesn’t like the ruling.
Gordon insists that the Supreme Judicial Court
applied a “rigid checklist” in rejecting the school’s affirmative defense. Pet. 24. But it did nothing of the
sort. Instead, it recognized that it must “take all relevant circumstances into account.” Pet. App. 23a (quoting Morrissey-Berru, 140 S. Ct. at 2067). Using this
Court’s precedents as its guidepost, the Supreme Judicial Court correctly recognized that “a case need not
mirror” Hosanna-Tabor and Morrissey-Berru “for the
ministerial exception to apply.” Pet. App. 35a. So rather than a side-by-side comparison of the cases, the
court reviewed the record—including the “handbook’s
detailed expectations of faculty”—to “understand the
nature and extent of DeWeese-Boyd’s duties,” Pet.
App. 27a, as this Court directed, see Morrissey-Berru,
140 S. Ct. at 2067.
These duties were “different in kind” from the
sorts that made the teachers ministers in HosannaTabor and Morrissey-Berru. Pet. App. 33a. Whereas
those teachers taught religion and led prayers, performing the important religious functions of teaching
and preaching the faith, DeWeese-Boyd “was, first
and foremost, a professor of social work.” Pet. App.
24a. Her scholarship and teaching focused on sustainability, general social-work practice, and the social-
21
work practicum. Pet. App. 24a. She did not “teach
classes on religion, pray with her students, or attend
chapel with her students,” “nor did she lead students
in devotional exercises or lead chapel services, like the
plaintiff in Hosanna-Tabor.” Pet. App. 24a; cf. Morrissey-Berru, 140 S. Ct. at 2066. She “was not ordained
or commissioned; she was not held out as a minister
and did not view herself as a minister; and she was
not required to undergo formal religious training.”
Pet. App. 33a.
None of that minimizes DeWeese-Boyd’s Christian faith. She has never shied away from describing
how her religion has informed her professional life: It
drove her to study and teach social work as a means
to pursue equality and justice and to care for others,
as her faith teaches. See, e.g., R.A. 395-96. That is akin
to a physician’s being drawn to medicine by a faithbased call to heal. DeWeese-Boyd treated her teaching
and scholarship at Gordon as a way to pursue religiously inspired ends, not as an opportunity to teach
or preach the faith.
Gordon overstates the religious nature of her role
by emphasizing DeWeese-Boyd’s 1998 application to
the college, where she wrote that she considered social
work well suited to a Christian college because “Christians have an undeniable call to minister to others,”
and that the role of a Christian academic includes
“guid[ing] and mentor[ing] each student in such a way
as to help her discern how Christianity impacts upon
her particular discipline.” Pet. 11. These statements
were from over 20 years ago, before she began teaching
at Gordon. They do not reflect the job she actually performed.
Gordon also leans on a handful of statements from
formal documents to argue that the Supreme Judicial
22
Court “disregarded” the duty of professors to integrate
the Christian faith into their teaching and scholarship. Pet. 24-27. That is incorrect. The court recognized the “undisputed” fact that the “integrative responsibility was part of [DeWeese-Boyd’s] duty and
function.” Pet. App. 25a. The court then looked to
what DeWeese-Boyd actually did—and did not do—to
determine whether that responsibility sufficed to
transform her into a minister. Pet. App. 26a-27a. The
court recognized that she did not “meet with students
for spiritual guidance, pray with students, directly
teach them doctrine, or participate in religious rituals
or services with them.” Pet. App. 26a. And unlike in
Morrissey-Berru and Hosanna-Tabor, the court determined, “the integrative function is not tied to a sectarian curriculum: it does not involve teaching any
prescribed religious doctrine, or leading students in
prayer or religious ritual.” Pet. App. 27a. Thus, the
court concluded, the responsibility to integrate religion into DeWeese-Boyd’s teaching was “different in
kind” from the responsibilities that made the employees in Hosanna-Tabor and Morrissey-Berru ministers.
Pet. App. 33a.
Gordon further insists that at “any religious college” a professor is a minister if formal documents like
“mission statements, faculty handbooks, and codes of
conduct” say that faculty are responsible for furthering the institution’s religious mission. Pet. 23 (emphasis added). But Hosanna-Tabor and Morrissey-Berru
straightforwardly rejected that sort of formalism:
“What matters, at bottom, is what an employee does.”
Morrissey-Berru, 140 S. Ct. at 2064. The Supreme Judicial Court followed those precedents in rejecting
Gordon’s attempt to “oversimplify” this Court’s legal
test. See Pet. App. 26a.
23
B. There is no split in authority among the
lower courts.
Gordon also imagines splits among the decisions
of three circuits and one other state court of last resort. Yet after trawling 40 years of federal and state
reporters—going back three decades before this Court
even recognized the ministerial exception—Gordon
points to only seven cases from appellate courts (federal or state). And only five considered whether to apply the ministerial exception to professors at religious
colleges. It then cherry-picks bits from those cases to
contend that the courts are divided, supposedly making dispositive either “integration” of a professor’s
faith, or else the types of classes the professor teaches.
But no federal court of appeals and no state court
of last resort (including in this case) has determined
whether the ministerial exception applies based exclusively, or even primarily, on whether a professor
integrates religion into teaching or on what courses
the professor teaches. In other words, Gordon purports to identify a split between two legal standards
that no courts have actually applied.
1. Gordon argues that the Fifth Circuit and the
Kentucky Supreme Court have made the courses that
a professor teaches determinative, and that they have
distinguished between “professors who integrate their
faith into disciplines they teach and those who teach
their faith as a discipline.” Pet. 32. But neither
adopted the rule that Gordon contends.
The Fifth Circuit cases to which Gordon points
were decided thirty years before Hosanna-Tabor. Yet
even without this Court’s guidance, the Fifth Circuit’s
ministerial-exception analysis looked to employees’
24
specific job responsibilities. Thus, the court determined that the exception did not apply to a psychology
professor at a religious college because she did not “attend to the religious needs of the faithful nor instruct
students in the whole of religious doctrine.” EEOC v.
Miss. Coll., 626 F.2d 477, 485 (5th Cir. 1980). It was
not enough that the professor was expected to act as
an “exemplar[] of practicing Christians” because she
was not an “intermediar[y]” between the church and
the faithful. Id. One year later, the court applied the
same analytical framework to hold that seminary faculty who taught religious doctrine to students training for ecclesiastical roles were ministers. EEOC v.
Sw. Baptist Theological Seminary, 651 F.2d 277, 28384 (5th Cir. 1981). Again, the court weighed multiple
factors, including that students attended the seminary to receive training for leadership roles within the
church, id. at 279, and that most faculty members
were ordained, were expected to “model[] the ministerial role for the students,” and served as “intermediaries between the Convention and the future ministers of many local Baptist churches.” Id. at 283-84.3 In
other words, the court in both cases performed the
functional analysis that this Court would eventually
specify.
The Kentucky Supreme Court has likewise performed functional analyses—based expressly on Hosanna-Tabor—and similarly refused to create a categorical rule for who is or isn’t a minister. In a pair of
decisions issued on the same day, the court concluded
that one seminary professor fell within the ministerial
The court also held that categorically designating all seminary
employees as ministers would be inappropriate: Their different
functions might merit different classifications. Id. at 284-85.
3
25
exception while another did not. See Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 602 (Ky.
2014); Kant v. Lexington Theological Seminary, 426
S.W.3d 587, 592 (Ky. 2014). That was because one
“gave sermons on multiple occasions, served communion, taught classes on Christian doctrine, opened class
with prayer each day, affirmatively promoted students’ development in the ministry, and served as a
representative—a literal embodiment—of the Seminary at events on multiple occasions.” Kirby, 426
S.W.3d at 614. The other, a professor of the history of
religion, taught students to “interpret historical and
modern cultures and contexts.” Kant, 426 S.W.3d at
592. Though the latter was sometimes a “source of religious instruction,” id. at 595 (quoting Hosanna-Tabor, 565 U.S. at 192), he never “espouse[d] the tenets
of the Christian Church * * * or Christianity,” id. at
593. Teaching about religion was, on its own, insufficient to make him a minister. Id.
Far from adopting the categorical test that Gordon describes, the Kentucky court considered the “totality of the circumstances,” Kirby, 426 S.W.3d at 614.
It evaluated the “important functions performed for
the religious institution,” considering whether those
functions “were essentially liturgical, closely related
to the doctrine of the religious institution, * * * performed in the presence of the faith community,” and
whether they “resulted in a personification of the religious institution’s beliefs.” Id.
In short, both the Kentucky Supreme Court and
the Fifth Circuit looked at what the professors did,
which is precisely what this Court has directed. And
that is the approach the Supreme Judicial Court employed.
26
2. Gordon then insists that the D.C. and Seventh
Circuits have adopted a different categorical rule, in
which a professor’s integration of faith into teaching
is determinative. That, too, is incorrect.
Like the Kentucky Supreme Court and the Fifth
Circuit—and well before Hosanna-Tabor—the D.C.
Circuit applied the ministerial exception to a professor at a seminary who trained her students for ordained roles within the church. EEOC v. Catholic
Univ. of Am., 83 F.3d 455, 463-64 (D.C. Cir. 1996).
Looking to the job functions of a nun in the Canon Law
Department at Catholic University—“the sole entity
in the United States empowered by the Vatican to confer ecclesiastical degrees in canon law,” id. at 464—
the court determined that she “perform[ed] the vital
function of instructing those who will in turn interpret, implement, and teach the law governing the Roman Catholic Church and the administration of its
sacraments,” id. The nun thus did far more than “integrate” her faith into her teaching: She taught the
next generation of Church leaders how to perform
their ecclesiastical duties in line with church doctrine.
Gordon’s reliance on Grussgott v. Milwaukee Jewish Day School, 882 F.3d 655 (7th Cir. 2018), as support for its invented “integration” test, is yet more perplexing. There, a Hebrew teacher at a Jewish elementary school was a minister because, among other reasons, she followed a curriculum designed to “develop
Jewish knowledge and identity,” had extensive previous experience as a religious teacher, and prayed with
her students. Id. at 660. The court considered all of
that and did not stop at “integration.” Nor does AliceaHernandez v. Catholic Bishop of Chicago, 320 F.3d
698 (7th Cir. 2003), have anything to do with integration. There, the court held, with little explanation,
27
that a press secretary hired to shape a church’s message fell within the ministerial exception. Id. at 704.
Bereft of any genuine split, Gordon points to a
smattering of district-court opinions. But see Sup. Ct.
R. 10. If the question of integration caused the disarray that Gordon contends, surely more than five
courts of appeals would have weighed in over the last
40 years, and at least one would have parted company
with the others.
C. This case is a poor vehicle to address the
question of integration that the petition
poses.
1. If Gordon were to prevail in this Court, it
would not resolve the case.
Beyond the jurisdictional defect and lack of split
in authority, review at this juncture makes no sense
because it could not end the case.
In Hosanna-Tabor, the Court expressly reserved
the question whether the ministerial exception is a defense against contract claims. 565 U.S. at 196 (“We
express no view on whether the exception bars other
types of suits, including actions by employees alleging
breach of contract or tortious conduct by their religious employers.”). Morrissey-Berru did not broach
that question either.
DeWeese-Boyd has state common-law contract
claims. Pet. App. 3a-4a. She has maintained that even
if Gordon were to prevail on the ministerial-exception
defense, those claims would not be barred. See Pet.
App. 57a. Although the parties briefed the issue in the
state courts, neither the superior court nor the Supreme Judicial Court passed on it. See Pet. App. 36a
n.27, 77a. Because DeWeese-Boyd was not a minister,
28
there was no need to address the question. Pet. App.
36a n.27.
Gordon did not raise or even mention this issue in
the petition, so it is waived. And even if it had, this
Court is “a court of final review and not first view.”
Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189,
201 (2012) (quoting Adarand Constructors, Inc. v. Mineta, 534 U.S. 103, 110 (2001) (per curiam)). It generally “do[es] not decide in the first instance issues not
decided below.” NCAA v. Smith, 525 U.S. 459, 470
(1999). The Court should not depart from that sound
principle in this case by deciding an issue that the Supreme Judicial Court left open and Gordon failed to
raise in its petition.
2. Gordon’s petition omits key facts.
Gordon asks the Court to decide whether professors are automatically ministers when they are required “to integrate Christian doctrine into their work
and academic disciplines, engage in teaching and
scholarship from a decidedly religious perspective,
and serve as advisors and mentors for student spiritual formation.” Pet. i. That question, which depends
on misrepresentations of the factual record, is not genuinely presented here.
a. Gordon’s entire argument for why DeWeeseBoyd is a minister hangs on the institution’s integration requirement. See Pet. 9. But Gordon offers a selective picture of what the requirement entailed and
how it was implemented.
Gordon does not show how DeWeese-Boyd integrated Christian faith into her classes. For good reason: She understood “integration” to be about aligning
her scholarship and other professional endeavors with
her faith, not about imparting her beliefs (or Gordon’s)
29
to her students. See Pet. App. 126a-127a. And nowhere in the record does Gordon show that she was
wrong about that or was somehow failing to perform
her job duties.
In fact, Gordon twice accepted her explanation of
integration. When asked to submit a paper “on the development of a Christian perspective within [her] academic discipline” for her third-year review, R.A. 265,
DeWeese-Boyd selected a secular book review, explaining that her work is “inherently integrated” because her faith guides her selection of subjects to explore through her scholarship, R.A. 382-86. And in her
application for tenure, she explained that integration
was “fundamentally about * * * pursuing scholarship”
that was true to her faith. R.A. 388. Gordon apparently accepted her interpretation, for it awarded her
tenure.4
b. Gordon also asks this Court to grant review to
declare that professors are automatically ministers if
they are required generally to teach from a Christian
perspective and to direct the spiritual formation of
That Gordon required faculty to explain their understanding
of integration is not the same as evaluating whether they successfully integrated “faith and learning,” Pet. 10, much less does
it show the integration requirement to entail the sorts of job functions that might categorically make one a minister. Gordon ignores these critical distinctions.
4
Gordon also contends that a professor’s track record of integration weighs heavily in performance evaluations and applications
for promotions and tenure. Pet. 10. But that’s not reflected in the
record. See Pet. App. 120a. And nowhere does Gordon point to
any evidence that integration played a role in DeWeese-Boyd’s
(or anyone else’s) promotions or reviews.
30
students. Pet. 9-10, 25-26. Again, Gordon relies on
broad statements and ignores the facts in the record.
There is nothing in the record that shows how
DeWeese-Boyd directed (or was expected to direct) the
spiritual formation of students. After all, she did not
teach religion or theology courses; she taught courses
on general social-work practice and sustainability and
oversaw social-work practicums. Pet. App. 24a. As director of the social-work program and social-work
practicums, her responsibilities were substantially
managerial and administrative. See Pet. App. 105a106a. And as Practicum Director she devoted significant time to entities outside the college, again spending less time in the classroom with students. Pet. App.
105a-106a; R.A. 409-10, 610.
c. Nor, contrary to Gordon’s assertion, did
DeWeese-Boyd “carr[y] the title ‘minister,’” Pet. 24. It
is true that Gordon’s handbook now refers to faculty
as “ministers.” But that language was added in 2016,
almost two decades into DeWeese-Boyd’s employment
at Gordon, Pet. App. 10a, as part of a legal strategy to
“trigger judicial deference,” R.A. 670. And the categorization was “a significant departure from the faculty’s own sense of their responsibilities and calling at
Gordon.” See R.A. 623, 631.
3. The Supreme Judicial Court’s decision
will not trigger the catastrophe that Gordon imagines.
Undeterred, Gordon insists that denying review of
a decision as to one professor (who is no longer employed by Gordon and does not seek reinstatement)
means that it will be required to hire and retain faculty who do not share its religious ideals and will not
31
carry out its religious mission. Pet. 19. And as a result, religious colleges across the country will be
forced to shut down and put their assets in hock.
But the sky won’t fall. The Supreme Judicial
Court’s ruling means only that Gordon could not take
adverse action against DeWeese-Boyd without regard
to the federal and state laws governing employment
relationships. Gordon can still prevail on the merits.
And it is still entitled to the protections of the ministerial exception with respect to its employees who do
perform ministerial functions and fulfill ministerial
roles. So are other religious colleges.
Moreover, nothing in the Supreme Judicial
Court’s opinion prohibits Gordon from enforcing the
employment requirements, whether religious or otherwise, set out in its employee contracts, handbook,
and statements of faith and conduct. So, for example,
the Supreme Judicial Court’s opinion simply has no
bearing on Gordon’s ability to require all faculty to
subscribe to its Statement of Faith, “through which
they affirm the fundamental tenets of their faith.” See
Pet. 7. Nor does the opinion impinge on Gordon’s ability to require faculty to abide by its Statement on Life
and Conduct. See Pet. 7.5
Gordon supports its fearmongering by explaining that
DeWeese-Boyd was engaged in “public advocacy against the College’s” beliefs. See Pet. 18. Again, that’s not what the record
shows: DeWeese-Boyd affirmed Gordon’s Statement of Faith,
and there is nothing in the record to show that she did not live
fully in accordance with the “behavioral expectations” in Gordon’s Life and Conduct Statement. See R.A. 247, 308; Pet.
App. 14a. Her advocacy for the “rights and safety” of LGBTQ students at Gordon was an attempt to “engage conversations”
among people who had different views yet remained committed
to Gordon and its mission. See R.A. 411.
5
32
Indeed, it is Gordon’s position that would have
enormous consequences if adopted. If Gordon had its
way, every professor at every religious college would
automatically be deemed a minister, no matter the
discipline, job duties, or actual functions, and any potential contract claims they might have would fail.
The upshot is that tenure would be a dead letter at
those schools. See, e.g., William A. Kaplin & Barbara
A. Lee, The Law of Higher Education 186, 213 (4th ed.
2006). Gordon offers no justification for completely upending academic freedom at religious colleges.
III. The Court should reject Gordon’s request to
overturn Hosanna-Tabor and MorrisseyBerru.
Gordon’s second question—whether the First
Amendment requires courts to defer to an employer’s
good-faith categorization of who is a minister, Pet. i—
is even more unfit for review. Dedicating barely a page
and a half to the issue, Gordon asks the Court to grant
review so that it can scrap altogether the functional
analysis at the heart of Hosanna-Tabor and Morrissey-Berru and make a single question determinative.6
But Gordon gives no good reason for the Court to
revisit those decisions. It raises the potential threat of
entanglement. Pet. 37-38. Yet it points to nothing in
the Supreme Judicial Court’s decision that failed to
follow this Court’s admonition that, in “any given
Gordon insists that “the Court reserved” this question in Hosanna-Tabor and Morrissey-Berru. Pet. 37. That is wrong. The
Court has twice made clear that it was “not imposing any ‘rigid
formula,’” Morrissey-Berru, 140 S. Ct. at 2067 (quoting HosannaTabor, 565 U.S. at 190), because courts must instead “take all
relevant circumstances into account,” id. “Simply giving an employee the title of ‘minister’ is not enough to justify the exception.” Id. at 2063.
6
33
case, courts must take care to avoid ‘resolving underlying controversies over religious doctrine.’” Morrissey-Berru, 140 S. Ct. at 2063 n.10 (quoting Presbyterian Church in U.S. v. Mary Elizabeth Blue Hull Mem’l
Presbyterian Church, 393 U.S. 440, 449 (1969)). Nor
does Gordon point to any other court that has struggled to heed this warning or offered even the slightest
anxiety about its administrability. Nor are we aware
of any.
What is more, Gordon’s question assumes that its
ministerial designation for all faculty in 2016 was in
“good-faith.” See Pet. i. DeWeese-Boyd does not concede that point. And to the extent that the record
speaks to the issue, it arguably supports the opposite
conclusion: The record suggests that the designation
of faculty as ministers was not for religious reasons
but for “legal reasons” to “trigger judicial deference.”
R.A. 670.
A mere thirteen months after Morrissey-Berru,
Gordon asked this Court to revisit its decision, before
most courts have had any opportunity to apply it. The
Court should not revisit Hosanna-Tabor and Morrissey-Berru. And it certainly should decline Gordon’s invitation to overrule them.
CONCLUSION
The petition should be denied.
Respectfully submitted.
HILLARY SCHWAB
Fair Work P.C.
192 South St., Ste. 450
Boston, MA 02111
(617) 607-3261
RICHARD B. KATSKEE
BRADLEY GIRARD
Counsel of Record
SARAH GOETZ
GABRIELA HYBEL
Americans United for
Separation of Church
and State
1310 L St., NW, Ste. 200
Washington, DC 20005
(202) 466-3234
girard@au.org
Counsel for Respondent
NOVEMBER 2021
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.