Reply Brief — Gordon College, et al., Petitioners v. Margaret DeWeese-Boyd

Supreme Court briefNov 15, 2021

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NO. 21-145

IN THE

Supreme Court of the United States

GORDON COLLEGE, ET AL.,

Petitioners,

MARGARET DEWEESE-BOYD,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Judicial Court of Massachusetts

REPLY BRIEF FOR PETITIONER

KRISTEN K. WAGGONER

JOHN J. BURSCH

Counsel of Record

ERIN MORROW HAWLEY

ALLIANCE DEFENDING FREEDOM

440 First Street NW

Suite 600

Washington, DC 20001

(616) 450-4235

jbursch@ADFlegal.org

Counsel for Petitioners

CORPORATE DISCLOSURE STATEMENT

The Corporate Disclosure Statement in the Petition for Writ of Certiorari remains unchanged.

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............ i

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

REPLY ARGUMENT SUMMARY ............................ 1

RECORD CLARIFICATION ..................................... 2

ARGUMENT .............................................................. 5

I. The lower court’s judgment is final. ..................... 5

A. Immediate review would prevent the

erosion of federal policy. .................................. 5

B. Immediate review would prevent

irreparable harm to Gordon College. .............. 8

II. Gordon does not ask for a per se rule, and

Hosanna-Tabor and Our Lady of Guadalupe

do not disclaim a rule that defers to religious

organizations’ good-faith understanding of

who is a “minister.” ............................................... 9

III.Lower courts are split over how to weigh the

integration of faith and teaching in applying

the ministerial exception to educators. .............. 12

IV. The decision below will be deleterious to

religious colleges. ................................................ 13

CONCLUSION ......................................................... 14

iii

TABLE OF AUTHORITIES

Cases

Ankenbrandt v. Richards,

502 U.S. 1023 (1992)............................................ 7

Cohen v. Beneficial Industrial Loan Corp.,

337 U.S. 541 (1949).......................................... 5, 8

Colorado Christian University v. Weaver,

534 F.3d 1245 (10th Cir. 2008).......................... 13

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975).................................. 5, 6, 7, 8

Employment Division, Department of Human

Resources of Oregon v. Smith,

494 U.S. 872 (1990)............................................ 12

Fort Wayne Books, Inc. v. Indiana,

489 U.S. 46 (1989)................................................ 7

Grussgott v. Milwaukee Jewish Day School, Inc.,

882 F.3d 655 (7th Cir. 2018) ............................. 12

Hosanna-Tabor Evangelical Lutheran Church &

School v. EEOC,

565 U.S. 171 (2012).............................................. 1

Kant v. Lexington Theological Seminary,

426 S.W.3d 587 (Ky. 2014) ................................ 12

Miami Herald Publishing Company v. Tornillo,

418 U.S. 241 (1974).............................................. 7

Mitchell v. Forsyth,

472 U.S. 511 (1985).......................................... 5, 8

Our Lady of Guadalupe School v. Morrissey-Beru,

140 S. Ct. 2049 (2020).............................. 1, 10, 11

Payne v. Tennessee,

498 U.S. 1080 (1991)............................................ 7

Pennsylvania v. Ritchie,

480 U.S. 39 (1987)................................................ 8

Piper Aircraft Company v. Reyno,

454 U.S. 235 (1981).............................................. 7

Porcaro v. Chen,

No. 0402896, 2005 WL 3729056 (Mass.

Super. Ct. Dec. 29, 2005) ..................................... 5

School Board of Nassau County v. Arline,

475 U.S. 1118 (1986)............................................ 7

Wright v. West,

502 U.S. 1012 (1991)............................................ 7

Yee v. City of Escondido,

503 U.S. 519 (1992).............................................. 7

Rules

Mass. R. Civ. P. 15 ..................................................... 6

Mass. R. Civ. P. 54(b) ................................................. 6

Mass. R. Civ. P. 60(b) ................................................. 6

REPLY ARGUMENT SUMMARY

DeWeese-Boyd does not dispute Gordon College’s

religious mission nor the critical role the College’s

faculty play in carrying out that mission. That should

be dispositive. As the 20 amici states conclude in their

review of the undisputed facts, the “case for applying

the ministerial exception here is compelling—so

strong in fact that it is mystifying how the

Massachusetts Supreme Judicial Court missed it.”

Nebraska Br. 10. The explanation is the lower court’s

disregard of this Court’s teachings in Our Lady of

Guadalupe School v. Morrissey-Beru, 140 S. Ct. 2049,

2055 (2020), and Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012),

Pet. 23–28, and its insistence that religious-college

professors must act like religious grade-school

teachers to qualify for the exception. In so doing, “the

Massachusetts Supreme Judicial Court effectively

foreclosed the application of the ministerial exception

to instructors at the college level.” Benedictine

College Br. 6. And the court invaded the authority of

a religious organization to decide for itself who is

necessary to inculcate the organization’s faith.

DeWeese-Boyd counters with an assortment of

unfounded vehicle objections. It is DeWeese-Boyd—

not Gordon—that misunderstands the record. This

Court has jurisdiction to hear the case, and if Gordon

prevails in this Court, the case will be resolved. The

College does not ask the Court for a per se rule. And

as amici explain, the decision below is devastating for

religious educational institutions. Certiorari or

summary reversal is warranted.

RECORD CLARIFICATION

DeWeese-Boyd does not contest the key facts

necessary to resolve this case:

The College is dedicated to “[s]cholarship that

is integrally Christian.” Pet.6.

It deepens “the faith [of students] by integrating Christian beliefs and practice into all

aspects of [the] educational experience.” Ibid.

The College requires its faculty to sign and

adhere to a Christian Statement of Faith, a

Bible-based “Statement on Life and Conduct,”

and a “Faculty Handbook,” and to “engage

students in their respective disciplines from

the perspectives of Christian faith.” Pet.7, 9.

Faculty are “educators and ministers” and

must “participate actively in the spiritual

formation of … students into godly, biblicallyfaithful ambassadors for Christ.” Pet.9.

Faculty must “integrate[e]” faith and learning

so students “develop morally responsible

ways of living in the world informed by

biblical principles and Christian reflection[.]”

Ibid.

Professors must “assist students in their

spiritual journey” and “inculcate the

Christian identity and transmit it to the next

generation.” Pet.10.

All this must be done “to serve the[ ] Christian

purpose of the institution.” Ibid.

And DeWeese-Boyd specifically understood

these requirements. Pet.10, 11–13.

DeWeese-Boyd’s opposition misunderstands the

record. For example, the brief claims “ministerial”

language was improperly added to the Faculty Handbook without faculty consultation. Opp.6 (citing

R.A.227). But faculty must only be consulted for

amendments to Handbook §§ 3–4, R.A.227, not

faculty academic requirements, which appear in § 5.4.

R.A.281–85.

DeWeese-Boyd also alleges that Handbook

changes were made for “legal reasons,” to “trigger

judicial deference.” Opp.6 (citing R.A.670). But

Gordon’s college counsel clarified that there were

already “many places” in the Handbook where faculty

“ministry is implied.” R.A.670. The changes “do[ ] not

add anything new to faculty responsibilities” but

merely “shore up” principles already there. Ibid.

DeWeese-Boyd’s brief also highlights some

faculty objections to the “minister” language because

Gordon faculty “are not real ministers.” Opp.6 (citing

R.A.626, 670). But that’s because faculty did not

understand the designation: they thought it made

them church pastors. One professor objected, “I don’t

administer the sacraments.” R.A.625. Another confusingly observed that “Gordon is not a church—it’s an

educational institution.” Ibid. Yet another expressed

reservations about “ministering on the higher levels

in ways we’re not trained to.” Ibid. And another

thought the designation meant faculty would be

“competing” with denominational ministers. Ibid.

Tellingly, not one faculty member objected when a

professor pointed out that the “minister” statement

“doesn’t seek to change the substance” of Gordon

faculty responsibilities. Ibid.

DeWeese-Boyd’s brief flees from the Handbook

because its language proves the importance of faculty

carrying out the College’s religious mission, making

clear that faculty are “committed to imaging Christ in

all aspects of their educational endeavors,” and

participating “actively in the spiritual formation of

our students into godly, biblically-faithful ambassadors for Christ.” R.282. Professors must “help[ ]

students make connections between course content,

Christian thought and principles, and personal faith

and practice,” while encouraging students to live “by

biblical principles and Christian reflection.” R.A.283–

84.

It makes no difference that DeWeese-Boyd (now)

claims she did not understand these to be her

responsibilities. Opp.28. The ministerial exception

vanishes if disgruntled professors decide how the

faculty should inculcate faith in students.

And DeWeese-Boyd’s suggestion that her

Complaint has no impact on Gordon’s Statements of

Faith and Conduct, Opp.31, is erroneous. While

DeWeese-Boyd now says she was always “committed

to Gordon and its mission,” id. at 31 n.5, her

Complaint ¶¶ 17, 25, 29, and 39, alleges that

DeWeese-Boyd disagreed with and sought to overthrow those very religious beliefs and practices.

ARGUMENT

The lower court’s judgment is final.

DeWeese-Boyd says there is no “final judgment”

to review. Opp.12–19. That is wrong. This suit tracks

two types of cases in which this Court has treated a

state-court ruling on a federal issue “as a final

judgment” for purposes of 28 U.S.C. 1257. Cox Broad.

Corp. v. Cohn, 420 U.S. 469, 477 (1975). First, this

suit concerns a finally-decided federal issue that may

become moot but—if resolved now—could bar “further

litigation” on relevant claims and prevent the serious

erosion of “federal policy.” Id. at 482–83. Second, the

federal issue is “separable from, and collateral to,” the

merits, and if left uncorrected, will cause irreparable

harm. Mitchell v. Forsyth, 472 U.S. 511, 527 (1985)

(citing Cohen v. Beneficial Indus. Loan Corp., 337

U.S. 541, 546 (1949)); Cox, 420 U.S. at 482 n.10.

A. Immediate review would prevent the

erosion of federal policy.

This Court reviews cases where “the federal issue

has been finally decided,” the petitioner could win on

“nonfederal grounds,” immediate reversal would bar

“further litigation” on relevant claims, and declining

review “might seriously erode federal policy.” Cox, 420

U.S. at 482–83. This suit easily passes that test.

First, the federal questions presented were finally

decided. The lower court affirmed summary judgment

dismissing Gordon’s ministerial-exception defense.

Pet.App.36a. Gordon cannot relitigate it. E.g.,

Porcaro v. Chen, No. 0402896, 2005 WL 3729056, at

*5 (Mass. Super. Ct. Dec. 29, 2005) (summary

judgment dismissal precludes affirmative defense at

trial). While Gordon may learn “new information,”

Opp.18, it could not resurrect this defense without

court permission, Mass. R. Civ. P. 15, 54(b), 60(b), and

such discovery is improbable since Gordon knows the

functions it assigned its faculty.

Second, Gordon could win on nonfederal grounds.

DeWeese-Boyd might, for example, fail to prove her

state-law claims at trial, rendering this Court’s

review of the ministerial-exception issue “unnecessary.” Cox, 420 U.S. at 482.

Third, immediate reversal would bar further

litigation on the “relevant cause[s] of action,” Cox, 420

U.S. at 483 (emphasis added). DeWeese-Boyd does not

contest that reversal would preclude further litigation

on at least some claims. That is enough. Under Cox,

the Court aims to prevent the erosion of a “federal

policy,” which, in its judgment, outweighs the possible

costs of immediately deciding the issue while also

litigating the remaining “cause[s] of actions,” ibid.—

even those with federal issues, see id. at 477 n.6

(contemplating this possibility).

DeWeese-Boyd suggests reversal would not bar

further litigation on all claims because Gordon did

not present a question on whether the ministerial

exception covers “state-law contract claims.” Opp.18.

But that’s not the test. Moreover, her complaint does

not allege a breach of a specific contractual promise;

it merely says that the same conduct giving rise to her

civil-rights claims also “constitutes breach of contract.” R.A.30. So, the same ministerial principles

apply. That’s why Gordon requested summary

judgment below as to all claims.

Moreover, while Cox does not require this, the

Court could simply “rephrase[] the question[s]

presented,” Yee v. City of Escondido, 503 U.S. 519, 535

(1992); e.g., Ankenbrandt v. Richards, 502 U.S. 1023

(1992), or add another question for review if

necessary, Piper Aircraft Co. v. Reyno, 454 U.S. 235,

246 n.12 (1981); e.g., Wright v. West, 502 U.S. 1012

(1991); Payne v. Tennessee, 498 U.S. 1080 (1991); Sch.

Bd. of Nassau Cnty. v. Arline, 475 U.S. 1118 (1986).

Regardless, this issue poses no jurisdictional barrier.

Fourth, immediate review would prevent the erosion of federal policy. “Adjudicating the proper scope

of First Amendment protections … merits application

of an exception to the general finality rule.” Fort

Wayne Books, Inc. v. Indiana, 489 U.S. 46, 55 (1989).

The lower court’s ruling “restricts [religious colleges’]

present exercise of [their] First Amendment rights.”

Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241,

247 n.6 (1974). The “possible limits the First Amendment places on” the application of state-employmentnondiscrimination laws to religious colleges “should

not remain in doubt.” Fort Wayne Books, 489 U.S. at

56. If the First Amendment bars Massachusetts from

holding Gordon liable for declining to promote

DeWeese-Boyd from associate to full professor, “this

litigation ends.” Cox, 420 U.S. at 486. Failure to

review now would have the “intolerable” result of

leaving every religious college in Massachusetts

“operating in the shadow of the civil … sanctions of a

rule of law … the constitutionality of which is in

serious doubt.” Id. at 485–86 (quotation omitted).

B. Immediate review would prevent irreparable harm to Gordon College.

Gordon’s ministerial-exception defense “[i]s [also]

separable from and independent of the merits,” and

“later review of [this] federal issue cannot [reasonably] be had.” Cox, 420 U.S. at 481, 482 n.10. This

defense is “conceptually distinct” from the merits

because its resolution turns only on DeWeese-Boyd’s

role, not the reasons for Gordon’s employment

decision. Mitchell, 472 U.S. at 527. And if Gordon

were to raise this claim “in a new set of appeals, the

courts below would simply reject the claim under the

law-of-the-case doctrine.” Pennsylvania v. Ritchie,

480 U.S. 39, 48 n.7 (1987); accord id. at 47–49

(applying Cox’s third category).

The finality doctrine “would be ill served by” these

“wasteful and time-consuming procedures,” id. at 48

n.7, because “the harm that [Gordon] seeks to avoid,”

id. at 49—secular courts trolling through its religious

beliefs, practices, and reasoning—will have already

been “irreparably” suffered, Cox, 420 U.S. at 482 n.10

(citing Cohen, 337 U.S. at 546).

The lower court’s judgment is final under both

justifications. The Cox analysis showcases the urgent

need for this Court’s review to preserve federal policy

and protect Gordon from irreparable harm.

II. Gordon does not ask for a per se rule, and

Hosanna-Tabor and Our Lady of Guadalupe

do not disclaim a rule that defers to

religious organizations’ good-faith understanding of who is a “minister.”

1. DeWeese-Boyd misstates the first question

presented as asking this Court to hold that “an

‘integration’ policy automatically renders all professors ministers.” Opp.19. Not so. The College’s unremarkable position is that the ministerial exception

applies to a religious college’s faculty when they

perform numerous functions central to the institution’s religious mission. Pet. i, 24–28.

DeWeese-Boyd tries to rehabilitate the lower

court by arguing that it appropriately compared her

duties to those of the teachers in Hosanna-Tabor and

Our Lady. Opp.20–22. But that type of “checklistbased approach” is precisely what Our Lady rejected

in favor of a functional analysis. Nebraska Br. 11, 14–

20; Benedictine College Br. 6–9 & n.2. And the

“narrow checklist applied by the Supreme Judicial

Court simply does not map onto college education.”

Benedictine College Br. 16.

Grade-school teachers often spend all day with

their pupils and teach all subjects, including religion.

Id. at 17. In contrast, college professors normally see

a student for a single class and only in the professor’s

area of expertise. Ibid. “By myopically presuming that

the only religious ministry in an educational setting

that matters is one that mirrors a grade-school

religion class, the Massachusetts court would

effectively deny [religious] colleges … the indispensable ‘authority to select, supervise, and if necessary,

remove’ the individuals who are at the heart of this

calling.” Id. at 18–19 (quoting Our Lady, 140 S. Ct. at

2060).

The lower court’s legal test also diminishes the

crucial role that professors play at religious schools

and disadvantages minority religions. Jewish Coal.

Br. 4–10 ( “minority religions like Judaism … consider

study and religious practice as important as

worship”); Islam & Religious Freedom Br. 9–10

(“when any Muslim interprets and applies Scripture

or the teachings of the Prophet, … he or she is

engaging in what—in Western thought—is an

essentially ministerial activity”); ACSI Br. 12–16

(highlighting test’s discrimination against nondenominational colleges). The Court should not allow

that test to stand.

2. As for deference, DeWeese-Boyd says that

Gordon is asking this Court to “overturn” HosannaTabor and “scrap” Our Lady. Opp.32. Again, not so.

Gordon merely asks that courts not second-guess a

religious college’s good-faith determination of which

positions are sufficiently religious and important to

merit First Amendment protection. Pet. 37–38.

This is a modest request. Since the question

whether an employee is a minister is a religious

inquiry, judicial second-guessing impinges on a

religious organization’s right to choose its ministers.

When courts second-guess, “the result will often be

that a college will be forced to promote or retain a

professor … who, in the institution’s view, expressly

advocates for a position contrary to the religious

beliefs central to its mission.” Billy Graham

Evangelistic Assoc. Br. 10. Deference “preserves the

autonomy of religious groups.” Islam & Religious

Freedom Br. 4–6. It “recognizes and respects the

unique self-knowledge and expertise of religious

groups.” Id. at 6–7. And it “preserves the rights of

religious minorities” while “avoid[ing] First

Amendment violations,” id. at 7–9, and “judicial

entanglement,” Jewish Coal. Br. 11.

This approach does not abrogate Hosanna-Tabor

or Our Lady. When evaluating a religious organization’s good faith, the Court should analyze the

organization’s designation using the functional

approach that Our Lady adopted. Here, for instance,

the designation tracks the College’s requirements

that faculty integrate Christian doctrine into their

teaching and academic writing, to engage in both from

a religious perspective, and to serve as spiritual

mentors to students.

What makes no sense is to defer to DeWeeseBoyd’s opinion about whether she plays a vital “role

in … carrying out” Gordon’s religious mission. Our

Lady, 140 S. Ct. at 2063. DeWeese-Boyd relies on her

own vague, oscillating perspective on whether her

work is—or is not—sufficiently religious and relies on

how she held herself out to the public. That cannot be

the rule. It would allow any disgruntled employee to

void the ministerial exception and is beyond judicial

competence. “After all, it is ‘unacceptable’ and beyond

the judiciary’s competence ‘to question the centrality

of particular … practices to a faith.’” Nebraska Br. 12

(quoting Emp. Div., Dep’t of Hum. Res. of Oregon v.

Smith, 494 U.S. 872, 887 (1990)).

III. Lower courts are split over how to weigh the

integration of faith and teaching in applying

the ministerial exception to educators.

The Supreme Judicial Court’s decision “conflicts

with this Court’s caselaw,” Nebraska Br. 10–20, and

that is enough. But DeWeese-Boyd also misreads

Gordon’s petition to suggest that lower courts are

split on whether the integration of faith and teaching

alone is dispositive as to whether college professors

are ministers. Opp. 23–27. That’s not the problem.

Lower courts differ on whether professors who

integrate faith and teaching pass along the faith to the

next generation, compare Grussgott v. Milwaukee

Jewish Day Sch., Inc., 882 F.3d 655, 661 (7th Cir.

2018) (per curiam), with Kant v. Lexington

Theological Seminary, 426 S.W.3d 587, 594–95 (Ky.

2014), which in turn has created a split over whether

these professors are ministers compared to professors

who otherwise serve equivalent religious functions but

also teach formal doctrine. Pet.29–37.

Were Gordon College in Chicago, the outcome

would likely change. DeWeese-Boyd’s duties are no

less religious than the educator’s in Grussgott.

Pet.30–31. Because the Seventh Circuit holds that

educators who integrate faith into their teaching pass

the faith “to the next generation,” and that this factor

“outweigh[s] other considerations,” Grussgott, 882

F.3d at 661, the court would find DeWeese-Boyd a

“minister.” Other jurisdictions, like Massachusetts,

analyze this factor differently and conclude the

opposite in a similar case.

This debate highlights another problem. Some

courts feel free to answer a quintessential religious

question: whether integrating faith into an academic

discipline is a religious function. Courts impermissibly become arbiters determining whether an

academic discipline is “religious” or “secular.” The line

between teaching doctrine and teaching students to

apply doctrine to so-called secular disciplines—if

there can be one—“is highly subjective.” Colo.

Christian Univ. v. Weaver, 534 F.3d 1245, 1262 (10th

Cir. 2008). Answering this question “depends as much

on the observer’s point of view as on any objective

evaluation.” Id. at 1263. The First Amendment

forbids “government” from judging the doctrine “quotient” of teaching that a college deems religious. Ibid.

IV. The decision below will be deleterious to

religious colleges.

DeWeese-Boyd calls the Supreme Judicial Court’s

decision an insignificant one-off, Opp.30–32, much

like respondents did in Hosanna-Tabor and Our

Lady. But substituting a grade-school-teacher checklist for this Court’s mission-based analysis is

disastrous. “If the government [can] preclude religious schools from managing their faculty members

in accordance with their faith traditions, religious

schools would no longer be able to guarantee the

educational experiences they promise.” ACSI Br. 10.

The decision “would destroy” religious colleges’ ability

“to define their educational missions and threaten[ ]

their very existence.” Benedictine College Br. 16. And

it “will diminish” religious colleges’ “contribution to

the greater good and limit, not advance, the

Massachusetts court’s policy goals.” Cardinal

Newman Soc’y Br. 15–21.

A course correction is sorely needed.

CONCLUSION

For the foregoing reasons, and those discussed in

the petition for writ of certiorari, the petition should

be granted.

Respectfully submitted,