Supreme Court Watch – Who Is a “Minister”?
John Christie • May 26, 2020
A couple of terms ago, a Supreme Court case that attracted attention involved a Colorado baker who refused to bake a wedding cake for a same-sex couple because of his religious beliefs. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
(1918). The Court ultimately never resolved the merits of the case and sent it back for further consideration after concluding that the Colorado Civil Rights Commission — that had ruled against the baker — had treated him unfairly by being too hostile to his religious beliefs.
In the present term, another case pending before the Court is attracting considerably less attention but involves a similar issue in a different context; that is, the extent to which the government’s interest in protecting certain rights applies when a religious interest is invoked as a defense. Our Lady of Guadalupe School v. Morrissey-Berru.
In 1998, Agnes Morrissey-Berru began working as a substitute teacher for Our Lady of Guadalupe School, a Catholic parish school in Hermosa Beach, Cal. The following year, the school offered Morrissey-Berru a full-time teaching position, a job she held for 15 years. In 2014, the school refused to renew her contract. She alleged the decision was based on age discrimination in violation of the federal Age Discrimination in Employment Act; the school argued the decision related to the budget and her teaching performance.
Morrissey-Berru’s job did not require her to be Catholic, and indeed, she was not a practicing Catholic. At the time she was hired, she had no religious training or certification. The school did not require her to obtain any religious training until 14 years into her tenure, when she took two classes on church history. Her employment benefits were governed by the “Lay Employees Benefit Guide.” The school gave her no religious title. She taught her students reading, writing, science, social studies, and religion. She led her students in saying a Hail Mary prayer once a day and took her students to weekly mass. Her students were required to lead mass periodically; she helped them prepare but did not lead any religious services.
In court, the school asserted that the case must be dismissed without inquiry into the reasons for the termination because the teacher was a “minister” subject to the “ministerial exception” the Supreme Court first recognized in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012). In that case, the Court held that the First Amendment’s prohibition against government interference with the “free exercise” of religion protects the employment relationship between a religious organization and its “ministers,” preventing the government from “requiring a church to accept or retain an unwanted minister.” In the opinion of the Court, the “ministers’ exception” was not limited to “the head of a religious congregation” and in that case applied the exception to an employee who had formally accepted a call to religious service and was serving as a teacher.
In doing so, the Court declined to adopt a rigid formula for deciding when an employee qualifies as a “minister.” Instead, the majority opinion by Chief Justice Roberts looked to “all the circumstances of her employment,” identifying four factors as significant.
First, the church had held the teacher “out as a minister, with a role distinct from that of most of its members.” Second, the teacher’s “title as a minister reflected a significant degree of religious training followed by a formal process of commissioning.”
Third, the teacher “held herself out as a minister of the Church by accepting the formal call to religious service.” Fourth, the teacher’s “job duties reflected a role in conveying the Church’s message and carrying out its mission.” She “taught her students religion four days a week and led them in prayer three times a day.” She not only took her students to chapel services, but also led those services on occasion, “choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible.”
It would appear that none of the first three factors prompting the Court in Hosanna-Tabor to conclude that the teacher in that case was a “minister” would apply to Morissey-Berru. She was not held out as a minister; she did not have a significant degree of religious training and had never accepted a formal call to religious service. Presumably because of this, in its briefing before the Supreme Court, Our Lady of Guadalupe School argued that an employee’s religious functions “alone” should be enough to count him or her as within the ministerial exception and that Morissey-Berru met that test because she exercised “important religious functions” of worship, ritual, and expression. The school claims that it should make no difference whether the “religious functions” are a significant part of the teacher’s job — the exception should apply if they engage in any of these functions for any amount of time.
Abandoning the totality-of-the-circumstance test adopted in Hosanna-Tabor just eight years ago in favor of a test that would apply the exception should any “religious function” be performed would significantly expand the scope of the ministerial exception. Not only would the number of employees who count as “ministers” be expanded, but also the kinds of claims precluded by that classification, including claims of sexual harassment, racial discrimination, and unequal pay. Although the case now before the Court again involves a teacher employed by a religious school, in the past religious organizations have asserted the exception against secretaries and receptionists, administrative or support staff, computer technicians and facilities workers among others.
For these reasons, this case deserves more attention than it has received to date. Oral argument before the Court was originally scheduled for April 1 but was delayed until May 11, one of 10 cases argued early in May by telephone conference because of covid-19 concerns. Normally a decision would be expected by the end of June but, because of the argument’s delay, a decision may be delayed as well.
Common Sense for the Eastern Shore
Megan Outten, a lifelong Wicomico County resident and former Salisbury City Councilwoman, officially announced her candidacy recently for Wicomico County Council, District 7. At 33, Outten brings the energy of a new generation combined with a proven record of public service and results-driven leadership. “I’m running because Wicomico deserves better,” Outten said. “Too often, our communities are expected to do more with less. We’re facing underfunded schools, limited economic opportunities, and years of neglected infrastructure. I believe Wicomico deserves leadership that listens, plans ahead, and delivers real, measurable results.” A Record of Action and A Vision for the Future On Salisbury’s City Council, Outten earned a reputation for her proactive, hands-on approach — working directly with residents to close infrastructure gaps, support first responders, and ensure everyday voices were heard. Now she’s bringing that same focus to the County Council, with priorities centered on affordability, public safety, and stronger, more resilient communities. Key Priorities for District 7: Fully fund public schools so every child has the opportunity to succeed. Fix aging infrastructure and county services through proactive investment. Keep Wicomico affordable with smarter planning and pathways to homeownership. Support first responders and safer neighborhoods through better tools, training, and prevention. Expand resources for seniors, youth, and underserved communities. Outten’s platform is rooted in real data and shaped by direct community engagement. With Wicomico now the fastest-growing school system on Maryland’s Eastern Shore — and 85% of students relying on extra resources — she points to the county’s lagging investment as a key area for action. “Strong schools lead to strong jobs, thriving industries, and healthier communities,” Outten said. “Our schools and infrastructure are at a tipping point. We need leadership that stops reacting after things break — and starts investing before they do.” A Commitment to Home and Service Born and raised in Wicomico, Megan Outten sees this campaign as a continuation of her lifelong service to her community. Her vision reflects what she’s hearing from neighbors across the county: a demand for fairness, opportunity, and accountability in local government. “Wicomico is my home; it’s where I grew up, built my life, and where I want to raise my family,” Outten said. “Our county is full of potential. We just need leaders who will listen, work hard, and get things done. That’s what I’ve always done, and that’s exactly what I’ll continue to do on the County Council.” Outten will be meeting with residents across District 7 in the months ahead and unveiling more details of her platform. For more information or to get involved, contact info@meganoutten.com
Way back in 1935, the Supreme Court determined that independent agencies like the Consumer Product Safety Commission (CPSC), the National Labor Relations Board (NLRB) and the Merit Systems Protection Board (MSPB) do not violate the Constitution’s separation of powers. Humphrey’s Executor v. United States (1935). Congress provided that the CPSC, like the NLRB and MSPB, would operate as an independent agency — a multi-member, bipartisan commission whose members serve staggered terms and could be removed only “for neglect of duty or malfeasance in office but for no other cause.” Rejecting a claim that the removal restriction interferes with the “executive power,” the Humphrey’s Court held that Congress has the authority to “forbid their [members’] removal except for cause” when creating such “quasi-legislative or quasi-judicial” bodies. As a result, these agencies have operated as independent agencies for many decades under many different presidencies. Shortly after assuming office in his second term, Donald Trump began to fire, without cause, the Democratic members of several of these agencies. The lower courts determined to reinstate the discharged members pending the ultimate outcome of the litigation, relying on Humphrey’s , resulting in yet another emergency appeal to the Supreme Court by the administration. In the first such case, a majority of the Court allowed President Trump to discharge the Democratic members of the NLRB and the MSPB while the litigation over the legality of the discharges continued. Trump v. Wilcox (May 22, 2025). The majority claimed that they do not now decide whether Humphrey’s should be overruled because “that question is better left for resolution after full briefing and argument.” However, hinting that these agency members have “considerable” executive power and suggesting that “the Government” faces greater “risk of harm” from an order allowing a removed officer to continue exercising the executive power than a wrongfully removed officer faces from being unable to perform her statutory duty,” the majority gave the President the green light to proceed. Justice Kagan, joined by Justices Sotomayor and Jackson, dissented, asserting that Humphrey’s remains good law until overturned and forecloses both the President’s firings and the Court’s decision to award emergency relief.” Our emergency docket, while fit for some things, should not be used to “overrule or revise existing law.” Moreover, the dissenters contend that the majority’s effort to explain their decision “hardly rises to the occasion.” Maybe by saying that the Commissioners exercise “considerable” executive power, the majority is suggesting that Humphrey’s is no longer good law but if that is what the majority means, then it has foretold a “massive change” in the law and done so on the emergency docket, “with little time, scant briefing, and no argument.” And, the “greater risk of harm” in fact is that Congress provided for these discharged members to serve their full terms, protected from a President’s desire to substitute his political allies. More recently, in the latest shadow docket ruling in the administration’s favor, the same majority of the Court again permitted President Trump to fire, without cause, the Democratic members of another independent agency, this time the Consumer Product Safety Commission (CPSC). Trump v. Boyle (July 23, 2025). The same three justices dissented, once more objecting to the use of the Court’s emergency docket to destroy the independence of an independent agency as established by Congress. The CPSC, like the NLRB and MSPB, was designed to operate as “a classic independent agency.” In Congress’s view, that structure would better enable the CPSC to achieve its mission — ensuring the safety of consumer products, from toys to appliances — than would a single-party agency under the full control of a single President. “By allowing the President to remove Commissioners for no reason other than their party affiliation, the majority has negated Congress’s choice of agency bipartisanship and independence.” The dissenters also assert that the majority’s sole professed basis for the more recent order in Boyle was its prior order in Wilcox . But in their opinion, Wilcox itself was minimally explained. So, the dissenters claim, the majority rejects the design of Congress for a whole class of agencies by “layering nothing on nothing.” “Next time, though, the majority will have two (if still under-reasoned) orders to cite. Truly, this is ‘turtles all the way down.’” Rapanos v. United States (2006). * ***** *In Rapanos , in a footnote to his plurality opinion, former Supreme Court Justice Scalia explained that this allusion is to a classic story told in different forms and attributed to various authors. His favorite version: An Eastern guru affirms that the earth is supported on the back of a tiger. When asked what supports the tiger, he says it stands upon an elephant; and when asked what supports the elephant, he says it is a giant turtle. When asked, finally, what supports the giant turtle, he is briefly taken aback, but quickly replies "Ah, after that it is turtles all the way down." John Christie was for many years a senior partner in a large Washington, D.C. law firm. He specialized in anti-trust litigation and developed a keen interest in the U.S. Supreme Court about which he lectures and writes.
Marylanders will not forget this vote.
More than 30,000 of our neighbors in Maryland’s first congressional district will lose their health insurance through the Affordable Care Act and Medicaid because of provisions in the GOP’s heartless tax cut and spending bill passed last week.
Right now, Congress is working on a fast-track bill that would make historic cuts to basic needs programs in order to finance another round of tax breaks for the wealthy and big corporations.
The House Agriculture Committee recently voted, along party lines, to advance legislation that would cut as much as $300 million from the Supplemental Nutrition Assistance Program. SNAP is the nation’s most important anti-hunger program, helping more than 41 million people in the U.S. pay for food. With potential cuts this large, it helps to know who benefits from this program in Maryland, and who would lose this assistance. The Center on Budget and Policy Priorities compiled data on SNAP beneficiaries by congressional district, cited below, and produced the Maryland state datasheet , shown below. In Maryland, in 2023-24, 1 in 9 people lived in a household with SNAP benefits. In Maryland’s First Congressional District, in 2023-24: Almost 34,000 households used SNAP benefits. Of those households, 43% had at least one senior (over age 60). 29% of SNAP recipients were people of color. 15% were Black, non-Hispanic, higher than 11.8% nationally. 6% were Hispanic (19.4% nationally). There were 24,700 total veterans (ages 18-64). Of those, 2,200 lived in households that used SNAP benefits (9%). The CBPP SNAP datasheet for Maryland is below. See data from all the states and download factsheets here.
