This lawsuit over religious education is really about race

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(Reuters) - A federal appeals court heard oral arguments on Tuesday in a case that tests the boundaries of a recent U.S. Supreme Court ruling that established a legal exemption for religious institutions to discriminate in certain circumstances and for faith-based reasons.

The formal questions in Gregory Tucker’s case against Faith Christian Academy in Arvada, Colorado, are the same as in most cases concerning the “ministerial exception.”

The doctrine exempts faith-based organizations from anti-discrimination laws to prevent government, including court, intrusion into the selection of church leaders and others who minister or serve as teachers of a faith, the high court said in Hosanna-Tabor v. EEOC in 2012, which first established the exemption.

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The 10th U.S. Circuit Court of Appeals is considering, first: Is the school a religious institution? And, was Tucker a “minister?” Tucker doesn’t have a case if he’s determined to be a ministerial employee, because the Supreme Court exempted those workers from the protections of federal anti-bias laws in Hosanna-Tabor and another case in 2020, called Our Lady of Guadalupe School v. Morrissey-Berru.

There isn’t truly a dispute over the first question. It's common for parties to skip any haggling over that issue because the Supreme Court explicitly recognized non-denominational Christian schools with the goal of inculcating Biblical values as religious institutions in the Guadalupe School decision – a very inclusive standard.

Whether Tucker was a ministerial employee is a bit more complicated. Tucker argued he wasn’t ministering because he didn’t teach religion or lead students in prayer, for example, while the school points out that his job included duties like organizing weekly “chapel meetings.” A lower court had previously held that a jury should decide whether the exception applies.

Still, there are other, maybe bigger, questions in the case. The underlying dispute is a neat encapsulation of the high-stakes social and political implications of the court’s broad religious exemptions and the risks that Constitutional interpretation poses to the civil rights of women, people of color, LGBTQ and other minority group workers.

The case demonstrates the need for the high court to clarify religious freedom laws and to re-emphasize the importance of the (sometimes competing) interests of minority groups’ civil and workplace rights.

The National Women’s Law Center and nearly 40 other advocacy groups submitted a brief in Tucker’s case arguing that the current formulation of the ministerial exception is a “drastic departure” from ordinary religious freedom jurisprudence and that employers are inappropriately expanding the exemption “at great cost to employees and society.”

Sunu Chandy, legal director at NWLC, told me that “too many employers are trying to avoid complying with civil rights laws including protections against race discrimination, sexual harassment, retaliation, overtime protection and more by wrongly claiming this narrow legal exception that is meant only for the hiring and firing of faith leaders.”

“This must stop,” Chandy said. “There is too much at stake here for those opposing racism or other discrimination, women, LGBTQ workers, and many others."

Tucker's lawyers at Americans United for Separation of Church and State and at Levin Sitcoff in Denver didn't respond to my requests for comment.

Tucker, who is white, has an adopted daughter of Haitian and African descent. He alleges he was fired because he organized a chapel meeting in opposition to racism at the school, including Black and Hispanic students being taunted with slurs, “white students dressing in [Ku Klux Klan] hoods and mock-executing minority students,” and bullying of students who spoke out about racism, according to his complaint.

Afterward, current and former students and parents backed Tucker’s claims about a “racist culture” at the school and that Tucker had been fired for trying to address those issues, according to news reports by ABC Denver.

Other parents and students felt the discussion was an “attack on whiteness,” and said Tucker was pushing a political agenda, according to a March 2018 article in Denverite, a local news website owned by the Colorado Public Radio network.

The dispute -- now boiled down to a question about the scope of a religious school’s right to select and retain “ministers” who reflect the faith -- is a battle in a raging culture war over race in American society and how the topic of historical white supremacy is taught in schools.

Last month, for example, Senate Republicans called on the White House to withdraw an education proposal that would place more emphasis on slavery and the contributions of Black Americans in civic lessons, Reuters reported on April 30.

And, from the beginning, this line of cases has always included facts suggesting they often concern disputes beyond disagreements over scripture.

Hosanna-Tabor, in 2012, involved a teacher at a religious school who was fired after she developed narcolepsy and began a school year on disability leave. The court held that the suit was barred because she was a ministerial employee.

In Our Lady of Guadalupe, the court expanded the doctrine even though the Catholic school teachers there “taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic,” as noted in Justice Sonia Sotomayor’s dissent. The central allegations in that dispute were that two employees were fired because one had breast cancer and the other was becoming elderly.

In Tucker’s case, Faith Christian Academy has argued that his chapel service “included interpretations of Bible passages that were inconsistent with” the school’s “interpretation of Scripture,” according to court documents.

I asked Daniel Blomberg, one of the school’s attorneys at the Becket Fund for Religious Liberty, about the specific nature of the religious doctrinal dispute. Blomberg first noted the breadth of the Supreme Court’s 2020 ruling.

Tucker's claim asserts that the school disagreed with views he expressed in a chapel service.

“Regardless of what the [specific] dispute is, that’s exactly the kind of” disagreement some justices said should be off-limits for a court’s inquiry, Blomberg said.

Blomberg added that the school “absolutely rejects racism” and holds itself out as an inclusive organization.

The problem was Tucker’s overtly political interpretation of certain Bible references to “salvation,” Blomberg said. Moreover, Tucker "complained in e-mails to the entire school and fomented unrest, and it got to the point where it was harming the religious community.”

Many of the cases in this area seems to involve more than disputes over religious texts -- allegations about common workplace problems, like aging, and illness, or crucial social questions, like how to confront racism in the community or workplace.

That suggests strongly that there's a need for the Supreme Court to clarify the bounds of this high-stakes area of law, with more appropriate regard for the clear risk to the rights of women, LGBTQ workers, and minority-group employees.

Opinions expressed here are those of the author. Reuters News, under the Trust Principles, is committed to integrity, independence and freedom from bias.

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Hassan Kanu writes about access to justice, race, and equality under law. Kanu, who was born in Sierra Leone and grew up in Silver Spring, Maryland, worked in public interest law after graduating from Duke University School of Law. After that, he spent five years reporting on mostly employment law. He lives in Washington, D.C. Reach Kanu at hassan.kanu@thomsonreuters.com