Minnesota Court of Appeals expands legal precedent for faith-based discrimination

The ruling, which was issued today, codifies a legal doctrine from the Federalist Society as precedent for discrimination.

By Artemis T. Douglas & Jane Migliara Brigham

Today, the Minnesota Court of Appeals ruled that a Catholic School has the right to fire a transgender teacher on the basis of religious freedom. The teacher was not involved in any religious activities, she was simply employed by the school.

During her firing, she was explicitly told by the principal that her transition was the justification for the school’s decision.  The court sided against her while acknowledging that she was fired for no other reason than because she is trans.

The court’s opinion on the matter uses the church autonomy doctrine, which posits that religious institutions have absolute discretion in certain fields relevant to the operation of the church, including the ability to use religious doctrine and by-laws to determine who can be a member of a religious organization.

The use of this doctrine to apply to employees in roles with no religious duties is new.  For example, the Catholic school hired the employee while knowing she was Jewish, a fact that was not relevant to her hiring or firing.  

However, her being transgender was found by the school to be in violation of their religious mission, and therefore, legitimate grounds of termination.  

The ruling makes no mention of why one category can be used as a legitimate basis of termination, but not another.

This new precedent could allow any religious or faith-based organization a free license to discriminate in employment, or otherwise, based on loose first amendment “freedom of expression” justifications.

In reality, this means that there is now legal precedent allowing faith-based organizations the right to discriminate based on internal policies, regardless of what civil rights provisions and other state or federal laws mandate.

The mechanism by which this is used is new ground in legal precedent. Previous religious exemptions to anti-discrimination and civil rights laws in employment generally used a bona-fide occupational qualification exemption. (BFOQ)

A BFOQ exemption, according to the HR compliance firm, BambooHR, is, 

A bona fide occupational qualification (BFOQ) is a legally allowed restriction of hiring and employing a person based on their sex, religion, or national origin. To be defined as legal, or “bona fide,” the qualifications should relate to the particular business’s necessary operations, as well as the position’s essential job functions.

To say it differently, the BFOQ law allows for necessary employment discrimination based on sex, religion, or national origin if the particular business’s operations or the job position’s duties justify it.

The Bona Fide Occupational Qualifications rule is the exception to Title VII of the Civil Rights Act, which prohibits employment discrimination “based on race, color, religion, sex and national origin.” - BambooHR

Prior legal precedent in cases similar to this generally used a ministerial freedom justification which was much more limited, according to Minnesota Appellate Court Watch. 

The ministerial freedom justification, which was expanded in 2020 by the SCOTUS ruling Our Lady of Guadalupe v. Morrisey Berru, requires an employee position to have a religious role. 

For roles such as a minister or faith-leader or certain faith-based teachers, there would have to be a clear religious element to the role.

If the religious element is clearly present, the ministerial freedom precedent allows for hiring decisions to be protected under the first amendment from claims of discrimination or protections under civil rights laws. 

“The Court’s holding emphasizes the importance of the employee’s function, as well as the religious organization’s definition and explanation of a job’s importance when determining the applicability of the exception. The majority opinion was written by Justice Alito, with a separate concurrence written by Justice Thomas. Justice Sotomayor wrote a dissenting opinion, which was joined by Justice Ginsburg.” - Dechert, 2020

This more recent case was clearly anti-trans employment discrimination. The court reproduced the internal Catholic Church policy that was at issue in its opinion and the policy. The court did not dispute that the case was about discrimination on the basis of gender identity.

The Catholic church’s policies as published by the court are less harsh than the Mormons’ on transition. The Catholic policy loosely cites a couple of bible verses.

In other words, this new legal precedent allows religious or faith-based organizations to write a policy, and cite a claim to a faith-based text to legally justify discrimination on anything that they can claim the text speaks for, against or about. 

Guiding Principles for Catholic Schools and Religious Education Concerning Human Sexuality and Sexual Identity

Purpose

The Catholic school is committed to providing a safe environment that allows students to flourish academically, physically, and spiritually. Catholic schools are obliged to provide an education and resources consistent with Catholic teaching. The starting point for Catholic education is a deeply held understanding that affirms the God-given irrevocable dignity of every human person.

Catholic teaching permeates and shapes the ethos of Catholic schools. Informed by Catholic teaching, these Guiding Principles shall inform the creation of policies, handbooks, statements, employee agreements, training for employees, and the approach to accompaniment in the Catholic schools of the Diocese of [insert], thus ensuring that the immeasurable dignity of every child is protected and respected, particularly as it relates to foundational beliefs of the Catholic

Church: 

• God created each person body and soul “in His own image, in the image of God he created them; male and female he created them” (Gen. 1:27). The dignity of each person and the source of his or her most important identity is found in this creation in the image and likeness of God (CCC §364).

• God uses the body to reveal to each person his or her sexual identity as male or female. A person’s embrace of his or her God-given sexual identity is an essential part of living a fulfilled relationship with God, with oneself, and with each other (Laudato Si §155).

• The harmonious integration of a person’s sexual identity with his or her sex is an expression of the inner unity and reality of the human person made body and soul in the image and likeness of God (CCC §364-65).

• The physical, moral, and spiritual differences between men and women are equal and complementary. The flourishing of family life and society depend in part on how this complementarity and equality are lived out

(CCC §2333-34).

• All students and families deserve interactions with Catholic school communities that are marked by respect, charity, and the truth about human dignity and God’s love (Deus Caritas Est §20).

To be clear, this is less harsh than the Church of Jesus Christ of Latter Day Saints’ policy on transitioning and transsexuals. Colloquially known as the Mormon Church, the LDS Church puts sex and gender transition in the same category (Section 38.6) of moral harms as murder, suicide, and sexual abuse of a minor. 

“38.6.23

Individuals Who Identify as Transgender

Gender is an essential characteristic in Heavenly Father’s plan of happiness (see Genesis 1:27). The intended meaning of gender in “The Family: A Proclamation to the World” is biological sex at birth. (For those whose biological sex is not clear at birth, see 38.7.7.)

Some people feel their inner sense of gender does not align with their biological sex at birth. The Church does not take a position on the causes of these feelings. Some who experience these feelings identify as transgender.

These individuals often face complex challenges. They—and their family and friends—should be treated with sensitivity, kindness, compassion, and Christlike love. All are children of God and have divine worth.

The ordinances of salvation and exaltation are received according to a person’s biological sex at birth. For guidance about administering these ordinances, refer to the following:

Baptism and confirmation (see 38.2.8.9)

Priesthood ordination (see 38.2.9.9)

Temple ordinances (see 26.5.7)

Worthy individuals who do not pursue surgical, medical, or social transition away from their biological sex at birth may enjoy all the privileges of Church membership.

Church leaders counsel against pursuing surgical, medical, or social transition away from one’s biological sex at birth. (Social transitioning means intentionally identifying and presenting oneself as other than one’s biological sex at birth, and may include changing dress, grooming, names, or pronouns.) Leaders advise that taking these actions will result in some Church membership restrictions. These restrictions include receiving or exercising the priesthood, receiving or using a temple recommend, and serving in some Church callings.

Individuals who transition away from their biological sex at birth are welcome to attend sacrament meetings and participate in the Church in many other ways. These individuals and their families are encouraged to counsel with their local leaders regarding Church participation. Church leaders teach gospel truth and minister in a Christlike way. They consider the needs of all involved. Sections of this handbook—such as attendance at Church meetings and activities (see 38.1.1), participation in family history work (see 25.1 and 25.4), service to others (see 22.2.3), and so on—should guide leaders as they counsel with individuals and their families. For further guidance on Church participation of individuals who identify as transgender, refer to these guiding principles.

Members who have taken steps to transition and then transition back to their biological sex at birth and are worthy and committed to keeping God’s commandments may enjoy all the privileges of Church membership.” LDS Church (Mormon Church) General Handbook, Section 38

To be clear, within the Mormon Church, murder and suicide are generally considered actually or nearly unforgivable sins because you can’t “seek atonement” for them.

Broadly, this new precedent means that any faith-based organization- whether Catholic, Mormon, or otherwise, now has free license to discriminate based on internal policies. It remains to be seen if this will remain state-wide precedent or be elevated to a SCOTUS case. 

For now, this is only a binding precedent in Minnesota, and does not apply to the rest of the country.