Ostlund’s school day was pretty typical for a teacher in a Christian school. She began the day with prayer and the Pledge of Allegiance. She taught reading, science, social studies, math, and handwriting. Other teachers taught computers, art, P.E., and music.
The final period of the day was religion, which she taught on her own three days per week. A priest or deacon accompanied Ostlund on the fourth day. On the fifth, there was a school-wide Mass. During religion class, Ostlund taught the Catholic faith. She was often the first person to teach the children certain Catholic prayers. She taught basic Catholic doctrine, and specific worship practices like the Stations of the Cross. Ostlund also helped her students celebrate school-wide religious holidays.
Approximately every fourth week, Ostlund was responsible for helping to plan the Friday Mass with her class. When planning Mass, Ostlund was in charge of choosing appropriate readings from the Bible. She was also responsible for the petitions that would be read and prayed during Mass. These she would either choose from a liturgy guide, or at times, write herself. Ostlund also participated in various aspects of the Mass, including reading responsorial psalms and carrying the bread and wine.
Each year, Ostlund was required to sign an employment contract, which provided:
“The Employee agrees to faithfully and conscientiously perform any and all
duties of the position(s) for which he/she is hired and all other duties as
directed by the Employer including, but not limited to . . . comply with the
requirements of the Diocese of La Crosse and the State of Wisconsin regarding
the educational preparation of teachers.”
It also provided:
“The Employee as a teacher in a Catholic educational system agrees that as a
condition of employment he/she will support and exemplify in conduct both
Catholic doctrine and morality. He/She must be consistent in expression and
example, with the teaching and practice of the Catholic faith and shall not
teach, advocate, encourage or counsel beliefs or practices contrary to the
The CCS Faculty and Staff Handbook included written rules, regulations, and policies adopted by the Diocese of La Crosse and approved by its Bishop. These policies required teachers to comply with certain standards. A preamble to these standards stated in pertinent part:
“The primary mission of the Catholic Church is to continue the mission of Jesus: PROCLAIMING THE KINGDOM OF GOD. Central to this mission is the teaching of the Word of God. This ministry of the Word is given expression in the education efforts of the Church.
It is the goal of the five dioceses in the state of Wisconsin to promote and support a comprehensive educational ministry. The ministry extends to people of all ages: adults, youth and children.
Following their long tradition of service to the people of Wisconsin,
Catholic elementary and secondary schools and religious education programs continue to be an essential part of the educational ministry of the Church.
By virtue of their ministry, personnel in Catholic education are role models
for other adults, youth and children. Therefore, they are called to be
well-informed in Catholic teachings and committed to a Catholic way of life.”
The standards themselves contain several requirements for teachers. Notably, elementary school teachers of religion were required to have both basic and advanced certifications in religion, which Ostlund acquired and maintained. Both the basic and advanced certifications involved yearly continuing education sessions where Ostlund was instructed on how to teach Catholic principles and doctrine. Teachers were also required be certified by the Department of Public Instruction. Ostlund was actually not a licensed teacher—she was working to obtain her teaching license, however, as that was a fairly recent requirement for CCS elementary school teachers.
While the standards required teachers of religion to be Catholics, as a matter of practice CCS did not actually require elementary school to be members of the Catholic Church. Ostlund’s job description set forth six main areas of responsibility: providing a religious Atmosphere, teaching responsibilities, supervisory responsibilities, professional duties, grade level responsibilities, and compliance with the school and diocesan policies. The “religious atmosphere” component required her to provide a good Christian model and example; encourage spiritual growth in students by developing inner discipline, character, morals, and values; and provide leadership in living and celebrating life and liturgies. Her professional duties required her to, among other things, earn and maintain religious certification.
As part of her yearly evaluation, Ostlund and a supervisor commented on various aspects of her job performance. The court found some of Ostlund’s comments relevant here. In her 1997 job evaluation, Ostlund stated: “When I teach prayer or religion class, attend or prepare liturgy or talk about morals and values, I know that I am dealing with things that are not found in a public school.” With regard to her teaching technique, Ostlund commented “I am able to incorporate Catholic values into all of the subjects that I teach.” In her 2001 job evaluation, she commented: “I encourage spiritual growth during religion class as well as throughout the day.” In her 2002 evaluation, Ostlund stated: “I have taught religion daily and prepared liturgies, which are well thought out and appropriate for first graders.” Ostlund’s evaluator stated that Ostlund “prepares students for participation in liturgies and prayer services celebrated during the school year.”
In the spring of 2002, CCS closed one of its elementary schools due to low enrollment. This required the school system to lay off several teachers. On March 27, 2002, Ostlund received a letter from the president of CCS stating that, due to the staff reductions, Ostlund would not be offered a contract for the 2002-03 school year. She was one of ten teachers not to receive contract extensions from CCS. Ostlund was age 53 when she was terminated, and was replaced with a 35-year-old teacher who was certified to teach elementary school.
Following her termination, Ostlund filed an age discrimination complaint with the Equal Rights Division of the Wisconsin Department of Workforce Development. She alleged that CCS terminated her because of her age in violation of the Fair Employment Act. The Equal Rights Officer did not find probable cause to believe that CCS violated the law when it terminated Ostlund. She then appealed the initial determination and received a formal administrative hearing with the Equal Rights Division to address her claim. CCS moved to dismiss the complaint, arguing that the Equal Rights Division had no jurisdiction because Ostlund’s position was “ministerial,” meaning that acting on the complaint would infringe upon CCS’s First Amendment rights.
The Equal Rights Division Administrative Law Judge concluded that Ostlund’s position was not ministerial. He concluded that while Ostlund did engage in religiously-related activities, her primary duty was to instruct her students in a core of secular disciplines. Therefore, he dismissed CCS’s motion and ordered a hearing to determine whether there was probable cause that CCS violated the Fair Employment Act when it terminated Ostlund.
CCS appealed the Equal Rights Division ruling to the State of Wisconsin Labor and Industry Review Commission for administrative review. LIRC determined that because the ALJ’s decision was not a “final order,” so it could not hear the appeal until after the probable cause hearing. CCS then sought review in the La Crosse County Circuit Court. The circuit court ruled that any investigation of the discrimination claim would have to wait until LIRC made a decision on whether Ostlund’s position was ministerial or not.
The matter was then sent back to LIRC, which issued a decision agreeing with the ALJ that Ostlund’s primary duty as a first-grade teacher was to instruct her students in a core of secular disciplines. Teaching religion four times a week, leading prayers, referring to religious symbols, incorporating religious themes into classes, preparing liturgy, and supervising liturgy did not constitute Ostlund’s primary duty, according to LIRC. Therefore, the discrimination hearing should be held. CCS sought review of that decision in La Crosse County Circuit Court.
The circuit court agreed with LIRC that, despite Ostlund teaching religion, participating in religious activities with students, and using religious examples in her lessons, her primary duty was to teach secular subject matters to her students. Hence, the circuit court held that she was not a ministerial employee, and that Ostlund’s age discrimination claim could proceed. CCS appealed and the court of appeals upheld the circuit court decision. Therefore, she appealed to the Wisconsin Supreme Court.
The Wisconsin Supreme Court Decision:
The Supreme Court started by noting that the U.S. Supreme Court has stated that the right to practice one’s religion according to the dictates of conscience is fundamental to our system of government. It noted that our nation’s founders recognized and enshrined this right in our in the Constitution. Roughly 60 years later, Wisconsinites saw fit to include more specific and more extensive protections for religious liberty in our state constitution.
On appeal, Ostlund also referred to the First Amendment. She asserted that the Establishment Clause provided the principles for this case, and that the real question was whether the Fair Employment Act creates excessive government entanglement with religion. She argued that giving religious employers an exemption from non-discrimination laws encroaches upon the Establishment Clause’s prohibition against furthering religion. The court, however, stated that U.S. Supreme Court case law and common sense lead to a different conclusion—that it is the Free Exercise Clause, and not the Establishment Clause, that is implicated in this case. Granting churches and religious organizations control over the selection of their leaders does not implicate the establishment of religion or the favoring of one religion over another.
According to the court, the state has a strong interest in eradicating discrimination, but the job of the courts is to distinguish minor or “incidental” burdens on free exercise in eradicating discrimination from burdens where the inroad on religious liberty is too substantial to be permissible. In doing so, courts have described what they call the “ministerial exception.” In 1985, the U.S. Supreme Court proposed a test for deciding when a position should be considered ministerial. An employee is ministerial, it said, if his or her “primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” This inquiry requires a court to determine whether a position is important to the spiritual and pastoral mission of the church. This test for has been called the “primary duties test.”
The court noted a problem with this test: what the word “primary” means. Some courts have taken a quantitative approach, looking, for example, at the amount of time spent on particular subjects deemed “secular” versus subjects deemed “religious.” This was the approach taken by Ostlund, the ALJ, LIRC, the circuit court, and the court of appeals.
The court determined what they termed a better way to view the ministerial exception—the “functional approach.” This perspective focuses more on whether a position is important to the spiritual and pastoral mission of the church. The primary concern here is the function of the employee, not only the enumerated tasks themselves. The court held that the quantitative approach minimizes or privatizes religion by calling a faith-centered social studies class, for example, “secular” because it does not specifically involve worship and prayer. A functional analysis, the court said, involves less intrusion into the affairs of religious organizations, envisages a more limited role for courts in determining whether activities or positions are religious, and avoids reducing the significance of a position to a rote formula. In short, the court said, a functional analysis is truer to the First Amendment’s protection of religious freedom.
The court then set out two steps for performing a functional analysis. First is to determine whether the organization, in both statement and practice, has a fundamentally religious mission. Any inquiry would be highly fact-sensitive. The court noted that “it could be that one religiously-affiliated organization committed to feeding the homeless has only a nominal tie to religion, while another religiously-affiliated organization committed to feeding the homeless has a religiously infused mission involving teaching, evangelism, and worship. Similarly, one religious school may have some affiliation with a church but not attempt to ground the teaching and life of the school in the religious faith, while another similarly situated school may be committed to life and learning grounded in a religious worldview.”
The second step in the analysis is to determine how important or closely linked the employee’s work is to the fundamental mission of that organization. This again would be highly fact-specific. Relevant evidence could include hiring criteria, the job application, the employment contract, actual job duties, performance evaluations, and the understanding or characterization of a position by the organization. Quintessentially religious tasks like teaching, evangelizing, church governance, supervision of a religious order, and overseeing, leading, or participating in religious rituals, worship, and/or worship services are not the only evidence considered, but would show a close link and importance to an organization’s religious mission.
A functional analysis of the ministerial exception makes sense, the court noted, because, though it departs in form from the analysis used by many other courts, it gets to the real heart of the ministerial exception, which is preventing the state from intruding into the mission of religious organizations or houses of worship. The state surely has a strong interest in ensuring fair employment opportunities regardless of age, race, and other such factors. Nonetheless, the Wisconsin legislature oversteps its constitutional authority when its otherwise laudable efforts at fairness interfere with the hiring and firing of employees who are important and closely linked to the religious mission of a religious organization. Such actions impermissibly intrude upon the organization’s exercise of religious liberty.
The court also looked at the Wisconsin Constitution in making its decision. This is important for two reasons—first, it makes an appeal to the U.S. Supreme Court nearly impossible. Second, it signals the court’s growing willingness to interpret the state constitution more restrictively than the U.S. Constitution. This is important in many contexts, and is not a so-called liberal/conservative issue. Those called “liberals” might appreciate a more stringent interpretation of what constitutes illegal search and seizure or the right against self-incrimination, while so-called “conservatives” might appreciate more stringent interpretations of the Free Exercise clause or various constitutional provisions related to commerce.
Article I, Section 18 of the Wisconsin Constitution provides as follows:
“The right of every person to worship Almighty God according to the dictates of
conscience shall never be infringed; nor shall any person be compelled to
attend, erect or support any place of worship, or to maintain any ministry,
without consent; nor shall any control of, or interference with, the rights of
conscience be permitted, or any preference be given by law to any religious
establishments or modes of worship; nor shall any money be drawn from the
treasury for the benefit of religious societies, or religious or theological
According to the court, the Wisconsin Constitution uses the strongest possible language in the protection of the right of freedom of conscience. While this section serves the same purposes as the Establishment Clause and Free Exercise Clause of the U.S. Constitution, these provisions are not the same. The protections and prohibitions in the Wisconsin Constitution are far more specific. And with regard to the rights of conscience, this clause contains extremely strong language, providing expansive protections for religious liberty. Thus, the court held, Wisconsin courts are not limited to current First Amendment jurisprudence when interpreting our own constitutional protections for religious liberty; rather, they are required to give effect to the more explicit guarantees set forth in our state constitution.
When faced with a claim that a state law violates an individual or organization’s freedom of conscience, courts generally apply the compelling state interest/least restrictive alternative test. Under this test, the religious organization has to prove that it has a sincerely held religious belief, and that such belief is burdened by the application of the state law at issue. If it does so, then the burden shifts to the state to prove that the law is based upon a compelling state interest that cannot be served by a less restrictive alternative.
This analysis, the court said, is appropriate in most circumstances regarding laws burdening the rights of conscience, but not in this case. This is because the law at issue in this case is not merely a burden on an individual’s or organization’s religious beliefs. Rather, it is an effort by the state to intrude into the hiring and firing decisions of a religious organization. The Wisconsin Constitution acts as a perpetual bar to the state from the infringement, control, or interference with the rights of conscience. The state simply has no authority to control or interfere with the selection of spiritual leaders of a religious organization with a religious mission. The court compared the Wisconsin provision to the 13th Amendment of the U.S. Constitution, which bans slavery. It would be inconceivable to conclude that slavery can exist in the United States as long as the state has a compelling interest. The text is clear—slavery is not allowed. In the same way, the state cannot or interfere with the selection of spiritual leaders of a religious organization.
The court noted that they do not mean to suggest that anything interfering with a religious organization is totally prohibited. General laws related to building licensing, taxes, social security, and the like are normally acceptable. Similarly, employment discrimination laws applying to employees who are not in positions that are important and closely linked to the religious mission of a religious organization also do not rise to the level of control or interference with the free exercise of religion. But the state may not interfere with the hiring or firing decisions of religious organizations with a religious mission with respect to employees who are important and closely linked to that mission. These employees are “ministerial,” and when applied to ministerial employees, laws like the Fair Employment Act constitute an impermissible effort to control or interfere with the organization’s rights of conscience in violation of the Wisconsin Constitution.
In applying the law to Ostlund, the court noted that LIRC had found that the textbooks used by Ostlund were not religious and that, except for a Christmas unit, her instruction in social studies was not primarily religious. However, Ostlund testified that she incorporated religious examples and values into everything she taught. The court noted that whether or not her teaching of social studies was primarily religious is more a legal judgment than a factual finding. Similarly, it noted that LIRC found as a fact that “religious related activities did not constitute [Ostlund’s] primary duty. The court rejected that finding of fact, saying it was a legal judgment. While it may be that the majority of her duties were teaching “secular” subjects, the court said, it does not follow that her primary duties were secular for purposes of determining whether the ministerial exception applies. These issues were important, because the Supreme Court is generally bound to the factual findings of lower courts, but can make independent determinations on legal judgments. It is somewhat unusual for an appeals court to reject a finding of fact as actually being a legal judgment wrapped in the cloths of a factual finding. However, the Supreme Court her made a point of doing so.
The court then followed the law it had set forth to determine that Ostlund’s position was important and closely linked to the religious mission of a religious organization.
It first looked at the nature of Coulee Catholic Schools and St. Patrick’s Elementary. The court noted that CCS has a religious mission and substantially practices it. CCS is an entity committed to marshalling the resources and expertise of the Catholic schools in the Diocese of La Crosse. CCS is an entity of the Catholic Church itself, subject to the authority of the Bishop of La Crosse, who himself approved certain CCS rules and policies. It is committed to a distinctly Catholic education aimed at a “Christian concept of life.” The preamble to the CCS Faculty and Staff Handbook explicitly stated that Catholic school education is an essential part of the Catholic Church’s efforts to live out its mission to proclaim the kingdom of God. Consistent with this mission, Catholic elementary and secondary schools are called educational ministry. CCS is committed to an education rooted in the Gospel of Jesus Christ that celebrates the development of Gospel faith and identity through sacrament and service. It aims to be a worship-filled educational environment with a faith-centered approach to learning. It is beyond dispute, then, that CCS has a religious mission. The court also held that the actual practice of Ostlund’s school substantially affirmed that CCS gives life to the words of its mission. Teachers made efforts to integrate Catholic values into various aspects of the curricula. This included integrating theological and moral principles into each subject, as well as use of religious examples and symbols that would not be found in a public school. Students were taught the Catholic faith in a daily religion class, and celebrated Mass weekly. The students also prayed at points throughout the day and celebrated religious holidays. Teachers were required to teach, support, and exemplify Catholic doctrine and morality, and they were to help foster spiritual growth among their students. In short, CCS member schools are not just public schools with a few supplemental religious extras. CCS was explicitly and intentionally faith-centered, and the record supports that CCS tried to live out its mission.
The second step in the court’s inquiry was an examination of Ostlund’s position itself and the degree to which it is important and closely linked to CCS's mission. As a first-grade teacher at St. Patrick’s Elementary School, one of the CCS schools, it was obvious to the court that Ostlund’s role was of high importance and closely linked to the mission of the school----the inculcation of a Christ-centered concept of life. Ostlund led prayer with her students, incorporated religious examples, symbols, and stories into other subjects, and helped celebrate school-wide celebrations of religious holidays. Significantly, Ostlund was a catechist for four days per week; that is, she taught Catholic doctrine and practice to her students. Ostlund also took her students to Mass each week, sometimes planning Bible readings and writing prayers for worship services. Ostlund was important and closely linked to the religious mission of CCS with regard to her first-grade students. Ostlund was required to obtain basic and advanced certifications in religious instruction. This means she was required to and did receive ongoing training and instruction on how to teach the Catholic faith to her students. She further agreed to model and support Catholic teaching. In her job description, which also served as the template for her performance evaluation, her first responsibility was to maintain a religious atmosphere, which required her to provide a good Christian model and example, encourage spiritual growth in students, and provide leadership in living and celebrating life and liturgies. Ostlund acknowledged her efforts to incorporate Catholic values and encourage spiritual growth throughout the day, not just in religion class. Ostlund’s position as a first-grade teacher was important and closely linked to the religiously-infused mission of the school. In particular, her specific obligations to contribute to worship services and teach Catholic doctrine to her students point to her significance in the religious mission of the school. Ostlund was required to perform quintessentially religious tasks as a central part of her job, and her role was an essential part of the Catholic Church's educational ministry to its youth. In sum, Ostlund was not simply a public school teacher with an added obligation to teach religion. She was an important instrument in a faith-based organization's efforts to pass on its faith to the next generation. The state and federal constitutions do not permit the state to interfere with employment decisions regarding teachers, like Ostlund, who are important and closely linked to the religious mission of CCS.
The court addressed two counterarguments. First, the lower courts were particularly affected by the fact that Ostlund was not required to be Catholic. It may seem, at first blush, counterintuitive to call a position ministerial when the person occupying it is not required to be a member of the faith she is ministering. But this ignores the fact that Ostlund was still required to engage in Catholic worship, model Catholic living, and impart Catholic teaching. Thus, though it may be that she was not required to be Catholic, she was required to live, embody, and teach Catholicism in her role as a teacher consistent with the mission of the school.
Previous courts also pointed to the secular teaching materials as important. But as discussed above, Ostlund testified that she made efforts to integrate Catholicism into all her subjects. The fact that she used a secular social studies book does not mean that the social studies class was “secular.” Ostlund used religious examples and brought Catholic teaching into all of her subjects.
The court specifically noted that in their holding in this case, they were not giving a blanket exception to all religious school teachers. Future cases along these lines will be very fact-sensitive. But the state has no constitutional authority to regulate the hiring and firing decisions of CCS for this first-grade teaching position.
Thus, the decision by the court of appeals was reversed.
This decision was not unanimous. Justice Crooks wrote a dissenting opinion, which was joined by Chief Justice Abrahamson and Justice Bradley, making it a 4-3 decision. (In fact, many commentators have noted that the result of the decision was likely completely decided by the 2008 Supreme Court election, in which Justice Gableman, who wrote the majority opinion) defeated former Justice Butler.
The dissent argued that the majority altered the “primary duties” test as it had been understood by Wisconsin courts and a significant majority of other jurisdictions. The dissent also argued that the majority’s sweeping language and analysis will have far-reaching consequences and jeopardizes long-standing decisions under the Establishment Clause of the United States Constitution, as well as under the “benefits clause” and “compelled support clause” contained in Article I, Section 18 of the Wisconsin Constitution. In fact, the dissent specifically noted that the majority conclusion that CCS infuses its secular subjects with religion effectively extends a free pass to religious schools to discriminate against their lay employees and threatens the continued viability of the Milwaukee school choice program. If the majority is correct in its conclusions, the dissent says, it can no longer be maintained that benefits flowing from the Milwaukee school choice program do not have the primary effect of advancing religion.