(OPINOIN) On Jan. 4, 2021, the Massachusetts Supreme Judicial Court will hear arguments in the question of whether professors at religious institutions of higher education are exempt from workplace anti-discrimination laws through First Amendment protections.

This is a historic case in some regards. It will be the first time Massachusetts’ highest court will take up a workplace discrimination claim involving a religious institution, in this case Gordon College, since the U.S. Supreme Court ruled on a ministerial exemption case last summer.  

“When I interview a faculty member, I will liken joining Gordon College to joining a religious order,” said college president Michael Lindsay in testimony given to a lower court in the case.

In Our Lady of Guadalupe School v. Morrissey-Berru, the nation’s highest court found in favor of a set of Catholic schools, finding that it is a violation of the First Amendment for the government to interfere with a church school’s decisions about who can teach faith formation to the next generation.

The Court held in that case: “[w]hen a school with a religious  mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”

The question of whether professors at faith-based colleges in Massachusetts qualify as “ministers” arose from a case at Gordon College. This Wenham-based Christian higher education institution is facing allegations from former associate professor, Margie DeWeese-Boyd. She is claiming she was denied a promotion due to her public support for the college’s LGBTQ students.

Last April, a Massachusetts lower court, in a procedural ruling, held in favor DeWeese-Boyd. In this ruling, Judge Jeffery Karp recognized that Gordon College fell under the definition of religious institution required for the purposes of the ministerial exception. However, the court held that DeWeese-Boyd’s position fell outside the scope of “minister,” even though she was tasked with incorporating faith into her coursework and “advancing  Gordon  College’s  distinctively Christian perspective and worldview.”

Judge Karp stated that if DeWeese-Boyd were deemed to qualify as having a ministerial role, “it is hard to see how any teacher at a religious school would fall outside the exception.”

The judge in this case acknowledged that the Supreme Court would shortly be hearing oral arguments in a ministerial exemption case - the previously mentioned Guadalupe - that could impact the final outcome in this case.

At the time, it was unclear whether Gordon would appeal. A representative for the Christian college stated: “while the College is disappointed by this ruling, we remain confident in the application of the First Amendment’s ministerial exception…[and this is] one stop along a long road.” It is now clear that this case has indeed been appealed to the highest levels of the court system in Massachusetts.  

In 2017, DeWeese-Boyd sought a promotion to full professor, which was supported by the faculty senate. She was denied this promotion by the provost, a decision supported by Gordon’s president Michael Lindsay. Gordon claimed that DeWeese-Boyd’s failure to receive a promotion was based upon her lack of scholarly research output, and her underwhelming enthusiasm, “professionalism and follow-through” for certain college projects. Nevertheless, Gordon also maintained that their teaching positions qualify as ministers under the ministerial exemption. And because of this, Gordon has asserted they do not have to prove whether they had a legitimate reason for not promoting DeWeese-Boyd.

In the spring of 2019, DeWeese-Boyd was laid off, along with other faculty and staff, in response to cost tightening measures across Gordon. In total, 6.5% of the Christian college’s workforce was laid off and eight majors were cut. Gordon’s vice president of external affairs Rick Sweeny said: “This is a case of finding ways to be more adaptable, and finding ways to be more affordable."

DeWeese-Boyd’s attorney Hillary Schwab stated that she believes this case was but one part of a larger campaign among evangelical Christian institutions to have as many of their workers covered by the ministerial exemption as feasible: "There's a strategy within certain religious-based institutions to try to make this exception be as broad as possible."

According to the brief filed on behalf of Gordon in this case, Gordon exists “to integrate evangelical  Christian  beliefs  and  practice into all aspects of its students’ educational experience in the context of   an  intentional Christian community.” Further, Gordon claims that DeWeese-Boyd, an associate professor of Social Work and Sociology with tenure, was responsible for imbuing the evangelical Christian faith to her students “through her course instruction and all other interactions.” In this view, a Gordon faculty member’s primary role is instilling Christian precepts and practices to the next generation. The content of the curricular subject matter is merely the means through which a faculty member carries out her primary responsibility of cultivating students' faith in the context of a learning community.

Gordon argues that abundant record evidence demonstrates DeWeese-Boyd did in fact live out this primary responsibility to foster and incubate faith in her teaching, scholarship and as an active member of the Gordon community. And, as such, DeWeese-Boyd is barred from making workplace discrimination claims because Gordon is covered under the ministerial exemption as interpreted and expanded in Guadalupe.

However, a legal brief submitted on behalf of DeWeese-Boyd asserts that Gordon faculty are not “ministers” as defined by the ministerial exemption. If DeWeese-Boyd is not a minister, she can bring suit against the religious college for antidiscrimination and her case must be heard and decided based on its merits. DeWeese-Boyd’s legal team asserts that the evidence makes clear that she was retaliated against for advocating on behalf of LGBT members of the Gordon community. Their brief further claims that Gordon has traditionally allowed for debate, discussion and disagreement on “the legitimacy of certain standards... there must be freedom in our community to raise questions and explore diverse viewpoints.”  

Further, DeWeese-Boyd alleges that she never served “a public role as a minister or religious leader” at Gordon. Her legal brief notes she did not lead prayer, regularly invite students to participate in explicitly religious activities at Gordon, nor did she participate in chapel services on a regular basis, nor claim a housing allowance for ministers on her taxes. DeWeese-Boyd’s legal team also notes: “Gordon College

has not bestowed the title of “minister” on Professor DeWeese-Boyd and has not presented Professor DeWeese-Boyd as a minister in promotional materials, to members of the Gordon College community, or otherwise.”

Regardless of how Massachusetts’ highest court rules in this case following oral arguments on Jan. 4, one thing remains clear. A determination for which positions count as “ministers” for the ministerial exemption cannot be boiled down to a spelled-out formula. It is easier to envision a system where those religious workers exhibiting certain external markers, such as wearing a collar, cloistered in a convent, or holding to a certain title are either “in” or “out.” But in reality, as the Guadalupe case makes clear, a “minister” for this First Amendment protection is determined more by the functions one performs. One example that would qualify is the transmission of essential faith precepts to the next generation.

As the Court stated, “Requiring the use of a title would constitute impermissible discrimination, and this problem cannot  be  solved  simply  by  including  positions  that  are  thought  to  be  the  counterparts  of  a  ‘minister,’  such  as priests,  nuns,  rabbis and  imams.” So, whether one is part of a religious order, or gets themselves to the proverbial nunnery or not, is ultimately beside the point.

Chelsea Langston Bombino is a believer in sacred communities, a wife, and a mother. She serves as a program officer with the Fetzer Institute and a fellow with the Center for Public Justice.