Cases & Deals

Amici-professors' arguments adopted in Supreme Court decision in First Amendment case

Clients Amici-professors

Jones Day submitted an amicus brief in support of the petitioners on behalf of a group of law professors in two consolidated U.S. Supreme Court cases concerning the proper scope of the First Amendment's "ministerial exception." Both cases involved fifth-grade teachers at Catholic elementary schools whose duties included teaching devotional theology and leading their students in devotional practices, such as daily prayer. In a 7-2 opinion, the Supreme Court held that the ministerial exception foreclosed the teachers' employment-discrimination claims. In so holding, the Court recognized that the "constitutional foundation" for the ministerial exception is "the general principle of church autonomy," which protects a religious institution's "internal management decisions that are essential to the institution's central mission," including "the selection of the individuals who play certain key roles."

Jones Day's amicus brief provided the Court with a historical perspective of the "ministerial exception," including the historical antecedents of the Religion Clauses, and the principles, especially of religious autonomy, that they embody. The brief argued that the ministerial exception protects the autonomy of religious organizations to select those who perform significant religious functions, and thus religious autonomy principles should guide the Court's resolution of these cases.

At oral argument, Justice Kavanaugh cited Jones Day's amicus brief for the proposition that religious autonomy is rooted in the Free Exercise and Establishment Clauses of the First Amendment. Justice Alito similarly suggested that the term "ministerial exception" should be "jettisoned," because the central issue in these cases is religious autonomy.

In addition to submitting this merits-stage amicus brief, Jones Day also submitted two certiorari-stage amicus briefs in support of the petitioners in both cases, as well as an amicus brief before the Ninth Circuit in Biel. Previously, Jones Day submitted amicus briefs in two other ministerial-exception cases. In Fratello v. Archdiocese of New York, the Second Circuit recognized that the "most important consideration" in a ministerial-exception case is whether, and to what extent, an employee performs "important religious functions." In doing so, the Second Circuit relied extensively on Jones Day's amicus brief, citing writings of the scholar signatories as highlighted in the brief. Similarly, in Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, the Third Circuit applied ministerial exception in a contract dispute case by a pastor against his former church because the resolution of his claim would limit the church's "right to choose who will perform particular spiritual functions." The court's opinion cited and quoted the Second Circuit's decision in Fratello, which embraced the position in Jones Day's amicus brief.

The professors, who are among the foremost scholars of the Religion Clauses of the First Amendment, include Douglas Laycock of University of Virginia School of Law; Michael W. McConnell of Stanford Law School; Nathan S. Chapman, of the University of Georgia School of Law; Elizabeth A. Clark, of BYU Law; Robert F. Cochran, Jr., of Pepperdine University School of Law; Teresa Collett, of the University of St. Thomas School of Law; Carl H. Esbeck, of the University of Missouri School of Law; Richard W. Garnett, of Notre Dame Law School; Paul Horwitz, of the University of Alabama School of Law; Christopher C. Lund, of Wayne State University Law School; Michael P. Moreland, of Villanova University School of Law; Michael Paulsen, of the University of St. Thomas School of Law; Robert J. Pushaw, of Pepperdine University School of Law; David Skeel, of the University of Pennsylvania Law School; and Eugene Volokh, of UCLA School of Law.

Our Lady of Guadalupe School v. Morrissey-Berru, No. 19-267; St. James School v. Biel, No. 19-348 (U.S.)

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