July 21, 2009 – State and federal guarantees of free exercise of religion bar a teacher at a Catholic school from alleging job discrimination, the Wisconsin Supreme Court held today in Coulee Catholic Schools v. Labor and Industry Review Comm’n, 2009 WI 88.
Deciding the case, the court announced a new test to judge whether an employee’s job duties are so closely related to the employer's religious mission that the government cannot interfere. Dissenting justices argued that the court’s policy preferences, not any legal principle, justified abandoning the old test used in Wisconsin for many years.
Although the court majority insisted that it had not created a blanket exception to the state’s anti-discrimination laws, the minority contended that the facts of this case are so generic that no lay Catholic schoolteacher will fall outside the ruling.
Alleged age discrimination
At age 53 and after 28 years of teaching at St. Patrick’s Elementary School in Onalaska, Wendy Ostlund was among 10 teachers laid off by Coulee Catholic Schools (CCS). She was replaced with a 35-year-old teacher, prompting Ostlund to file an age discrimination complaint with the Equal Rights Division (ERD) of the Wisconsin Department of Workforce Development (DWD).
St. Patrick’s attributed the decision to declining enrollments and noted that Ostlund’s successor had a teaching certificate which Ostlund did not have.
When the DWD initially determined there was no probable cause to believe St. Patrick’s had engaged in age discrimination, Ostlund appealed. But CCS moved to dismiss the complaint on the ground that the agency lacked subject matter jurisdiction. Specifically, CCS argued that Ostlund’s teaching position was “ministerial” under Jocz v. LIRC, 196 Wis. 2d 273 (Ct. App. 1995), triggering its First Amendment rights to free exercise of religion.
The “ministerial” exception, articulated in Rayburn v. Gen. Conference of Seventh-day Adventists, 772 F.2d 1164 (4th Cir. 1985), shields positions in a religious organization that are so closely related to the religious mission that government interference would amount to state selection of those who teach and lead a congregation. The Rayburn court set out a “primary duties” test to identify those who qualify for the exception.
Ostlund engaged in religiously-related activities such as leading her students in prayer, teaching a religion class four days a week, preparing and supervising liturgy, and incorporating religious themes into classes. However, the ERD administrative law judge concluded under the “primary duties” test that Ostlund’s job was not “ministerial” because the majority of her day involved teaching secular disciplines. The Labor and Industry Review Commission (LIRC) affirmed this ruling as did the circuit court and the court of appeals.
A new test
The majority opinion, authored by Justice Michael Gableman, criticized the “primary duties” test used by the agency and lower courts for its “quantitative approach,” which merely adds up the time spent on religious activities.
“What the quantitative approach means as a practical matter is that the state can interfere with the hiring and firing of the leaders of religious organizations and houses of worship so long as the leaders are spending (presumably) 49 percent or less of their time or tasks on whatever the court determines to be ‘religious’ activities,” the court said.
A better way to view the ministerial exception, the court said, is a “functional” approach that focuses on the overall function of the employee, not only the enumerated tasks themselves.
This analysis involves two steps, the court explained. First, the court considers whether the organization exists primarily to worship and spread a faith. He stressed this is “highly fact sensitive.” For example, two religiously-affiliated organizations may feed the homeless, but only one may infuse its mission with teaching, evangelism, and worship.
Next, the court continued, the court examines how closely linked the employee’s work is to the organization's fundamental mission in another fact-sensitive inquiry. The court said relevant evidence includes objective employment indicators such as hiring criteria, actual job duties, performance evaluations, and “the understanding of characterization of a position by the organization.” Factors such as evangelizing and church governance are “important,” but are not the only evidence considered, the court said.
“A functional analysis of the ministerial exception makes sense because, though it departs in form from the analysis used by many other courts, it gets to the real heart of the ministerial exception, which is preventing the state from intruding into the mission of religious organizations or houses of worship,” the court wrote.
The court majority explicitly stated its decision stands on independent state grounds, precluding review by the U.S. Supreme Court. Specifically, the justices said that the “Freedom of Conscience Clauses” in Article I, Section 18 of the Wisconsin Constitution “uses the strongest possible language” to protect the right of worship free of state involvement. These protections are even more expansive than those in the First Amendment, the court added.
Giving effect to Wisconsin’s explicit guarantees of religious freedom in this case, the court stated it would not apply the strict scrutiny standard it customarily uses to evaluate a claim that state law violates an individual’s freedom of conscience. “The law at issue in this case is not simply a burden on an individual’s or organization’s religious beliefs; it is an effort by the state to intrude into the hiring and firing decisions of a religious organization,” the court said.
“There is no weighing of the state’s interest or examination of whether the law is narrowly tailored to achieve that interest,” the court explained. “The state simply has no authority to control or interfere with the selection of spiritual leaders of a religious organization with a religious mission. The text of our constitution states that the state cannot do it – at all.”
“We do not mean to suggest that anything interfering with a religious organization is totally prohibited,” the court cautioned, commenting that general laws such as building licensing, taxes, and Social Security are acceptable. Employees not within the ministerial exception are protected by discrimination laws, the court said.
The court also warned that under its fact-sensitive analysis, it might find instances where a religious school teacher does not hold a ministerial position.
Application to Ostlund
Putting its new standard to the facts of this case, the court first noted “that CCS has a religious mission and substantially practices it.” The court then considered Ostlund’s role as a first-grade teacher as it related to that mission, concluding they are closely linked.
“Ostlund led prayers with her students, incorporated religious examples, symbols, and stories into other subjects, and helped celebrate school-wide celebrations of religious holidays,” the court observed. “[Ostlund] taught Catholic doctrine and practice to her students. Ostlund also took her students to Mass each week, sometimes planning Bible readings and writing prayers for worship services.”
The court also remarked that Ostlund was required to obtain basic and advance certifications in religious instruction and that she agreed to be a role model supporting Catholic teaching. “Ostlund was not simply a public school teacher with an added obligation to teach religion,” the court concluded. “She was an important instrument in a faith-based organization’s efforts to pass on its faith to the next generation.”
Ostlund’s position was ministerial even though the school did not require a teacher to be a Catholic because of the degree to which she was expected to live and engage with Catholicism, the court said. Likewise, the court said Ostlund’s use of secular text books does not make her classes secular because religious examples and Catholic teaching supplemented them.
An ‘exception’ that swallows the rule?
In dissent, Justice N. Patrick Crooks – joined by Justice Ann Walsh Bradley and Chief Justice Shirley Abrahamson – took aim at the majority’s new test.
“[T]he majority and I appear to agree that a fair application of the primary duties test, as our courts and a majority of others have applied it, yields only one sensible result: that Ostlund’s position is not ‘ecclesiastical,’” Crooks wrote. “Yet, rather than accept that result, the majority opts to gild the primary duties test with a functional analysis that produces a significantly broader approach and to apply the facts selectively to that approach.”
Crooks charged that the majority had failed to identify a principle in Wisconsin law that justified reworking the “primary duties” test. The new test, he said, has little or no support from other jurisdictions and “appears to be merely a matter of preference for the majority.”
Further, Crooks said the test is overbroad. “I cannot take comfort in the majority’s assurances that its proposed analysis will be very fact-sensitive, and that its holding is ‘not giving a blanket exception to all religious school teachers,’” Crooks wrote.
“CCS’s mission is not unique among Catholic schools, and Ostlund’s duties are not unique among lay Catholic schoolteachers,” Crooks continued. “If this case is to serve as an example of how a Catholic school infuses Catholic doctrine into every secular subject taught there, I fail to see how any lay Catholic schoolteacher will fall outside of this broad ‘exception’ devised by the majority.”
Crooks said that the court’s rationale risked undermining the constitutionality of the Milwaukee Parental Choice Program (MPCP) established in Jackson v. Benson, 218 Wis. 2d 835 (1998). That program enabling poor children to attend sectarian private schools through a public voucher system passed constitutional muster because it included an “opt-out” provision, he said.
An “opt-out” lets parents or guardians excuse their children from religious activities. This was an important factor under the test for state endorsement of religion set out in Lemon v. Kurtzman, 403 U.S. 602 (1971). Under that test, Crooks explained, a school voucher program does not violate the Establishment Clause if it has a secular legislative purpose, its principal or primary effect neither advances nor inhibits religion, and it does not create excessive entanglement between government and religion.
But if, as the majority asserts, the teaching of secular subjects at CCS is infused with religion, the opt-out provision is ineffective. “If the majority is correct in its conclusions, I fail to see how it can continue to be maintained that benefits flowing from the Milwaukee school choice program do not have the primary effect of advancing religion,” Crooks wrote.
Crooks remarked that this also puts the MPCP program in doubt under the state constitution’s “compelled support clause” in Article I, Section 18 barring a sectarian private school from requiring students to participate in religious activities. Likewise, the “benefits clause” of Article I, Section 18 forbids the expenditure of public money for the benefit of religious societies or theological seminaries.
Alex De Grand is the legal writer for the State Bar of Wisconsin.