The Supreme Court Has a New Chance to Stand Strong for Religious Liberty | Opinion

Under the First Amendment, government bureaucrats can neither determine religious doctrine nor control the selection of those who do. Anything less is bad for all Americans—and it's especially bad for religious minorities.

On Monday, the Supreme Court will hear two cases with important implications for religious minorities: Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel. These cases deal with a First Amendment right that forbids the government from interfering with religious organizations' ability to choose those who personify the organization's faith in pivotal ways, such as teaching that faith to the next generation.

This constitutional right—known as the "ministerial exception"—is reserved for roles that qualify as "ministers." And that raises the question: Who qualifies as a minister?

Both Our Lady and St. James are about answering that question. In both cases, Catholic elementary schools chose not to renew the contracts of fifth grade teachers who taught their students a daily class about the Catholic faith, incorporated the faith into all other subjects, led students in daily prayer and took students to Mass. And in both cases, after the schools chose not to renew the teachers' contracts due to poor job performance, the teachers sued and asked the court to punish the school.

Under Supreme Court precedent stretching back decades, these cases should have been straightforward. That's the thrust of what the unanimous Supreme Court ruled in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, where the Court found that a fourth grade teacher with similar religious duties to the ones in Our Lady and St. James couldn't sue her Lutheran school over its decision to fire her. But the Ninth Circuit Court of Appeals broke with that precedent, ruling that the Catholic schools didn't fit the Lutheran model from Hosanna-Tabor. Specifically, the Ninth Circuit found that even though the teachers engaged in important religious duties, the First Amendment didn't apply because they didn't have Lutheran-sounding official ecclesiastical titles.

It's bad enough that, under the Ninth Circuit rulings, judges are allowed to quibble over things like whether Christian denominations use titles that sound "sufficiently religious." In many denominations, teachers of the faith may not hold ecclesiastical titles, and Jewish and Muslim day-school teachers with significant religious roles often will not be rabbis and imams—nor will they have any formal religious titles. But the problems are starker yet when it comes to Jews, Muslims and other minority faiths that do not fit the Christian mold. Both unfamiliarity and malice can make it more likely that some government officials might decide those faiths are not religious at all.

This might sound shocking, but it has actually happened before. In a recent ministerial exception case, Su v. Stephen Wise Temple, a California state agency determined that a Jewish school shouldn't benefit from the exception in part because "[s]ome would consider Jews to be a nationality. A person could be considered an atheist and still be considered Jewish." California courts later sided with the agency, ruling against the school because its teachers did not have the religious trappings of the Lutheran teacher in Hosanna-Tabor.

U.S. Supreme Court
U.S. Supreme Court SAUL LOEB/AFP via Getty Images

A very similar line of attack has been used against Muslims. Numerous government officials nationwide have argued that "Islam is not a religion" and that Muslims therefore do not legally merit religious freedom. In a 2010 case involving a mosque, the mosque's opponents said it shouldn't benefit from religious land use laws because "Islam is not a religion." And lawmakers in 43 states have relied on the same rationale for a stunning 217 bills meant to outlaw Muslim religious arbitration.

The First Amendment prohibits the government from discriminating against unfamiliar or unpopular faiths. While it may be more convenient for government officials to accommodate only familiar religious practices when carrying out their governmental functions, it is not constitutional for them to do so. The First Amendment guarantees that every American's conscience must be equally protected under the rule of law. The Supreme Court should honor that principle by reversing the Ninth Circuit and clarifying that the ministerial exception protects all faiths equally.

Howard Slugh is an attorney practicing in Washington, D.C. and the co-founder of the Jewish Coalition for Religious Liberty.

Asma T. Uddin is the author of When Islam Is Not a Religion: Inside America's Fight for Religious Freedom.

The views expressed in this article are the writers' own.