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Religious school groups: Our freedom to decide who teaches our faith should be respected

ADF files brief on behalf of Christian schools, associations asking Supreme Court to affirm their freedom from undue govt interference
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WASHINGTON – Alliance Defending Freedom, together with Troutman Sanders, one of the country’s largest and most respected law firms, filed a friend-of-the-court brief Monday with the U.S. Supreme Court on behalf of several Christian education associations and a religious university asking the Court to uphold two Catholic schools’ ability to select their own teachers. The brief in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel argues that a “minister” should be defined by objective evidence based on religious functions the employee performs, as defined in good faith by the religious organization, rather than letting the government define who is a minister and who is not.

ADF attorneys filed the brief on behalf of the Association of Classical Christian Schools, the Cardinal Newman Society, William Jessup University, and the Association for Biblical Higher Education.

“As the Supreme Court has made clear, the First Amendment bars the government from interfering with a religious group’s employment decisions regarding its ministers,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “While lower courts have disagreed about the right way to define ‘minister,’ any definition should be primarily based on the religion functions an employee is asked to perform, respect the autonomy of faith-based schools, and keep the government from interfering with the internal operations and autonomy of religious organizations.”

Our Lady of Guadalupe School is a Catholic kindergarten through 8th-grade school in California that provides a faith-based education. In 2015, the school, based on performance reviews, chose not to renew the contract of Agnes Deirdre Morrissey-Berru, a teacher responsible for planning liturgy, educating students in the doctrines of creation and original sin, and instructing about the names, meanings, and signs of the seven Catholic sacraments. Morrissey-Berru challenged the decision in court.

The same year, St. James Catholic School, another California kindergarten through 8th-grade school, faced a similar situation when it chose not to renew the one-year contract of Kristen Biel, the fifth grade teacher. Biel taught religion classes four days a week, incorporated Catholic values and traditions in the other subjects she taught in her classroom, and regularly administered tests to gauge her students’ knowledge and understanding of the Catholic faith. Biel also challenged her school’s decision in court.

A district court ruled in favor of both schools, applying the Supreme Court’s 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which recognized that religious organizations have autonomy regarding the employment of their ministers. But the U.S. Court of Appeals for the 9th Circuit reversed both of those decisions. Though acknowledging that Morrissey-Berru and Biel had many religious duties, the court ruled that something more like a ministerial title or religious credentials was required to warrant First Amendment protection. On Dec. 18 of last year, the Supreme Court agreed to review the decisions and consolidated the two cases.

Consistent with the various interests discussed in each of the opinions in Hosanna-Tabor, the proper test for determining if an employee is a “minister” is whether that employee engages in religious functions, as shown by competent evidence, with the Court deferring to the religious organization’s own good-faith belief as to whether a function is “religious,” the ADF brief explains. “Adopting this proposed test would respect the diversity of this Nation’s religious organizations,” promoting religious liberty and autonomy.


Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.


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John Bursch
John Bursch
Senior Counsel, Vice President of Appellate Advocacy
John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom.