"If you can show that the employee is carrying out important religious functions, then that's an area where the state just has to stay out."
In several high-profile cases in recent years, teachers at Catholic schools who have entered civil same-sex marriages have been fired.
Bursch said today's ruling could protect schools from lawsuits in these situations, provided they could show that the teachers in question were expected to transmit the faith to students.
"If the teacher is considered a minister at that school, as the Catholic teachers were in the two schools that the court decided today, then Title VII would not apply, no matter what the claim is," he said. "The ministerial exception simply says that the federal government can't be involved in regulating appointment law when it comes to religious institutions and their ministers. So the Bostock decision would not apply."
Non-teacher employees would be similarly evaluated, with courts looking at their job responsibilities to determine whether the role is ministerial in nature. For example, a school janitor who is only present in the building outside of normal school hours and is not responsible for transmitting the faith would likely not be considered ministerial in nature, he said.
In one case in Indianapolis last year, two guidance counselors were dismissed from a local Catholic school for entering civil same-sex marriages, and a social worker then lost her job after publicly defending them.
Bursch said employment decisions such as these would be evaluated based on what the expectations of the employees are, and what job responsibilities they have.
For a guidance counselor, courts may consider questions such as, "Do they have any kind of religious or theological education or training? Is it expected that they're going to transmit principles of the Catholic faith to students as they work through issues? Are they going to encourage students to consider religious vocations, such as being Catholic priests or being nuns?"
"The more of those types of things you have, the more likely it is that the court would consider the counselor a minister," Bursch said.
"Each [case] will be a facts and circumstances examination of how much that person is expected to help carry on the faith to others. And if there's a lot of that, they're almost certainly a minister. If there's none of that, then they almost certainly would not be," he added.
The same principles apply to other Catholic organizations as well, he said. For example, a Catholic Charities social worker who is instructed to avoid religious conversations in his or her work with foster families would likely not be considered a minister. In contrast, a social worker who is instructed to spread the Gospel, and to encourage Mass attendance, prayer, and Catholic schools is more likely to be considered a minister.
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"It would all depend on what the organization expects of that person in their job responsibilities," Bursch stressed.
He also commented on the morality clauses added into teaching contracts in some Catholic dioceses, indicating that teachers accept and agree to publicly abide by Church teaching.
"Even before Our Lady of Guadalupe, they should feel pretty good about those clauses because an employment relationship is at-will," he said. "[T]he courts have long recognized that wholly apart from the ministerial exception, a religious organization has the ability to hire individuals who share that organization's faith beliefs. But I think having Our Lady of Guadalupe in place should help them feel even better about those types of clauses."
Keim agreed that today's ruling is reassuring for religious schools who ask teachers to abide by basic moral tenets.
"I think the Supreme Court has been very clear," she said. "Two cases in eight years that have said resoundingly that 'educating and forming students in the Catholic faith are vital religious duties'…If someone's engaged in that process, the court has spoken twice and spoken very loudly, 9-0 and 7-2, those are areas where the state cannot be in the business of picking religion teachers."