Gay Teacher’s Job Bias Win Nixed Under ‘Ministerial Exception’

A gay teacher saw his sex bias win against a Catholic high school overturned Wednesday by the Fourth Circuit, which said because he played a “vital role as a messenger” of the faith, he was a “minister” excepted from the protections of federal sex discrimination law.

Charlotte Catholic High School teacher Lonnie Billard’s appeal is the latest case to examine the interplay between federal job discrimination law and religious freedom protections.

The US Supreme Court has previously adopted and applied a “ministerial exception” to Title VII of the 1964 Civil Rights Act claims. The exception is derived from the First Amendment and gives religious employers the freedom to generally choose who serves them in spreading their message, the US Court of Appeals for the Fourth Circuit said, looking past a waiver of that defense.

Because Billard fell under that exception, there was no need to address the school’s alternative arguments under an exemption to federal discrimination law for religious employers, the First Amendment’s church autonomy and expressive association doctrines, or the Religious Freedom Restoration Act, the appeals court said.

While judicial canons generally encourage courts to resolve cases under statutory defenses before addressing constitutional issues, “the breadth and novelty of” Charlotte Catholic’s “statutory defenses makes this the unusual case in which we decide less by starting and finishing with” the ministerial exception, which is a constitutional defense, Judge Pamela A. Harris wrote for a partiallly divided court.

Billard served Charlotte Catholic as a minister because, “even as a teacher of English and drama,” his duties included conforming his teaching “to Christian thought and providing a classroom environment consistent with Catholicism,” Harris said. Before instructing students on Romeo and Juliet, for example, Billard consulted the school’s religious teachers to make sure he was “teaching through a faith-based lens,” she said.

The teacher was fired after he announced on Facebook, soon after North Carolina legalized same-sex marriage, that he intended to marry his boyfriend.

Judge Paul V. Niemeyer joined in Harris’s ruling, while Judge Robert B. King partially dissented. The panel’s ruling reversed a 2021 ruling by North Carolina federal judge Max O. Cogburn Jr. The appellate court heard arguments in September.

‘Teachers are Different’

The ministerial exception shields religious institutions when dealing with individuals, like Billard, who perform tasks central to their religious missions, even where those “tasks themselves do not advertise their religious nature,” Harris said.

And “teachers are different” under Supreme Court ministerial exception precedents, as educating youngsters “in their faith, inculcating its teachings, and training them to live their faith are responsibilities” are core to the mission of a private religious school like Charlotte Catholic, the judge said, reversing a lower court and remanding the case with instructions to enter judgment against Billard.

King concurred in the judgment, but said he wouldn’t have decided the case under the ministerial exception.

Charlotte Catholic’s appeal instead should have been decided under an express exemption for religious employers in Title VII, King said.

Constitutional Avoidance

The Supreme Court has mandated the doctrine of constitutional avoidance is more deeply rooted than others in the process of constitutional adjudication, and judges shouldn’t pass on questions of constitutionality, except where addressing such issues is unavoidable, King said.

A straightforward reading of Title VII’s religious employer exemption shows that Billard’s sex discrimination claim against Charlotte Catholic was barred, King said. The majority wrongly strayed from the doctrine of constitutional avoidance by turning immediately to the ministerial exception, he said.

Charlotte Catholic represented to the district court that it waived the ministerial exception as a defense to Billard’s claims. Whether that waiver was valid became a surprise issue during oral argument before the Fourth Circuit, when the panel questioned the parties on whether the exception is waivable and whether a more probing ruling by the lower court on the merits of the defense was needed before the defendants’ other arguments could be addressed.

Prior to that development, the appeal was expected to delve into Charlotte Catholic’s other defenses.

The American Civil Liberties Union Foundation and Tin Fulton Walker & Owen PLLC represented Billard. The Becket Fund for Religious Liberty and Troutman Pepper Hamilton Sanders LLP represented the defendants.

The case is Billard v. Charlotte Catholic High Sch., 4th Cir., No. 22-01440, updated opinion issued 5/9/24.