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Today, the Supreme Court considers just how to apply the separation of church and state. In respect for that separation, many federal rules do not apply to churches or to their ministers. But what if you're a layperson, not a minister, while working at an institution affiliated with a church? This specific case concerns lay teachers at parochial schools. The ruling could affect millions of other employees in similar circumstances. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The lower courts have long considered ministers exempt from the nation's employment laws - anti-discrimination and labor laws, for instance. But how do we define who's a minister and who's not? In 2012, the Supreme Court sought to answer that question, agreeing unanimously that a fourth-grade teacher who was ordained as a minister could not sue over her firing by a Lutheran school. Chief Justice John Roberts spoke for the court. He noted that the teacher who brought the case was not a lay teacher, but a religiously trained commissioned minister of the church.
(SOUNDBITE OF ARCHIVED RECORDING)
JOHN ROBERTS: Requiring a church to accept or retain an unwanted minister or punishing a church for failing to do so intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.
TOTENBERG: Today's case, however, involves two fifth-grade lay teachers at Catholic parochial schools in California. Agnes Morrissey-Berru claimed her contract was not renewed after 16 years' service because of illegal age discrimination. The second suit was brought by Kristen Biel against St. James School in Torrance, Calif. She claims she was fired after she told her superior, Sister Mary Margaret Kreuper, that she had been diagnosed with breast cancer. Her husband, Darryl, remembers the day vividly.
DARRYL BIEL: She first pulled up in the driveway. She was bawling hysterically. She was so hurt that they could be doing this to her.
TOTENBERG: Kristen Biel would return to teaching elsewhere. But in June 2019, she died.
BIEL: I promised her that I would see this through.
TOTENBERG: Today, Stanford law professor Jeff Fisher, representing the teachers, will tell the justices that these teachers were hired to teach academic subjects. Though, they did teach religion from a workbook about three hours a week.
JEFF FISHER: And just as teaching science out of a fifth-grade workbook doesn't make people scientists, teaching religion for about 40 minutes a day out of a workbook doesn't make them ministers.
TOTENBERG: Eric Rassbach, of the Becket Fund for Religious Liberty, disagrees.
ERIC RASSBACH: These teachers taught the Catholic faith to these kids much more than the parish priest.
TOTENBERG: Fisher counters that being a leader of the faith isn't something you measure with a stopwatch. And, he adds...
FISHER: These teachers did not even have to be Catholic to have these jobs.
TOTENBERG: At the heart of this dispute is the First Amendment ban on government establishment of religion and the separation of church and state. Again, the Becket Fund's Rassbach.
RASSBACH: You don't want the government deciding who teaches religion. We don't do that in this country. That's why we have an establishment clause.
TOTENBERG: But Fisher notes that the schools in these cases do not claim any religious reason for firing the teachers.
FISHER: They have never asserted that either of them fell short in any religious duty or other adherence to the faith.
TOTENBERG: The question, he maintains, is whether millions of employees can be automatically exempted from laws enacted by Congress to protect workers, and not just anti-discrimination laws, but laws that protect individuals from retaliation when they report misbehavior to authorities, and laws imposing wage and hour regulations. Rassbach, for his part, will tell the Supreme Court that not everyone who works at a religious school or institution is exempt from these laws.
RASSBACH: Far from it. It's just that you have to look and see what kind of functions are they doing.
TOTENBERG: But Fisher counters that function can't be the only criterion because many religious employers sincerely believe that all of their employees perform important ministerial functions, from nurses who care for the sick to summer camp counselors for troubled teenagers. Were employees like this to be covered by the ministerial exception, he says, the results would be dire.
FISHER: Millions of people across the country who never thought or understood themselves to be leaders of the faith are now, magically, leaders of the faith who have no employment law protections.
TOTENBERG: There is another and rather rich twist to one of the cases before the court today. It turns out that at the time Kristen Biel disclosed she'd been diagnosed with breast cancer, Sister Mary Margaret Kreuper, the school principal who fired her, was embezzling large amounts of money to finance her gambling sprees to Las Vegas. That's unlikely to come up at the Supreme Court today. But it certainly is on Darryl Biel's mind. He'd planned to be in Washington for today's argument.
BIEL: I wanted to see them. I wanted them to see me.
TOTENBERG: Instead, like the rest of us, he'll be listening.
Nina Totenberg, NPR News, Washington.
[POST-BROADCAST CLARIFICATION: In the audio of this story, we incorrectly say the fourth-grade teacher in a 2012 case was ordained as a minister. The church body in the case commissions teachers as ministers, but does not ordain them.]
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