The "Ministerial Exception" To Anti-Discrimination Laws : The US Supreme Court Decision in Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission

For this entry, we look into a recent American decision in the case of Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission decided last January 12, 2012. This landmark US Supreme Court case recognizes and applies for the first time the so-called “ministerial exception” under the Establishment and Free Exercise Clauses of the 1^st Amendment of the US Constitution.

The decision, penned by the conservative Chief Justice John Roberts Jr., is unanimous – which is rather surprising for a tribunal often polarized into conservative and liberal blocs in contentious constitutional issues. Justices Clarence Thomas and Samuel Alito, both conservatives, wrote separate concurrences. None of the justices associated with the liberal bloc (Ginsburg, Breyer, Sotomayor and Kagan) wrote an opinion.

While there are criticisms of the “broad sweep” of the ruling, such as the New York Times editorial charge that the “sweeping deference to churches does not serve them or society wisely,” the application of the decision is actually rather narrow. Chief Justice Roberts wrote: “The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her.  Today we hold only that the ministerial exception bars such a suit.  We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.”

[The following summary is based merely on the Syllabus prepared by the US Supreme Court Reporter of Decisions and posted, together with the full text of the decision and the concurrences, in the US Supreme Court website. For a more nuanced reading of the opinions in this case, please read their respective full texts at http://www.supremecourt.gov/opinions/11pdf/10-553.pdf.]

THE FACTS:

Petitioner Hosanna-Tabor Evangelical Lutheran Church and School is a member congregation of the Lutheran Church–Missouri Synod. The Synod classifies its school teachers into two categories: “called” and “lay.” “Called” teachers are regarded as having been called to their vocation by God. To be eligible to be considered “called,” a teacher must complete certain academic requirements, including a course of theological study. Once called, a teacher receives the formal title “Minister of Religion, Commissioned.” “Lay” teachers, by con­trast, are not required to be trained by the Synod or even to be Lu­theran. Although lay and called teachers at Hosanna-Tabor general­ly performed the same duties, lay teachers were hired only when called teachers were unavailable.

After respondent Cheryl Perich completed the required training, Hosanna-Tabor asked her to become a called teacher. Perich accept­ed the call and was designated a commissioned minister. In addition to teaching secular subjects, Perich taught a religion class, led her students in daily prayer and devotional exercises, and took her stu­dents to a weekly school-wide chapel service. Perich led the chapel service herself about twice a year.

Perich developed narcolepsy and began the 2004–2005 school year on disability leave. In January 2005, she notified the school principal that she would be able to report to work in February. The principal responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year. The principal also expressed concern that Perich was not yet ready to re­turn to the classroom. The congregation subsequently offered to pay a portion of Perich’s health insurance premiums in exchange for her resignation as a called teacher.

Perich refused to resign. In Febru­ary, Perich presented herself at the school and refused to leave until she received written documentation that she had reported to work. The principal later called Perich and told her that she would likely be fired. Perich responded that she had spoken with an attorney and in­tended to assert her legal rights.

In a subsequent letter, the chair­man of the school board advised Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich’s “insubordination and disrup­tive behavior,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” The congregation voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination.

Perich filed a charge with the Equal Employment Opportunity Commission, claiming that her employment had been terminated in violation of the Americans with Disabilities Act. The EEOC brought suit against Hosanna-Tabor, alleging that Perich had been fired in retaliation for threatening to file an ADA lawsuit. Perich intervened in the litigation.

Invoking what is known as the “ministerial excep­tion,” Hosanna-Tabor argued that the suit was barred by the First Amendment because the claims concerned the employment relation­ship between a religious institution and one of its ministers. The District Court agreed and granted summary judgment in Hosanna­ Tabor’s favor. The Sixth Circuit vacated and remanded. It recog­nized the existence of a ministerial exception rooted in the First Amendment, but concluded that Perich did not qualify as a “minister” under the exception.

THE ISSUES:

1. Is there such a thing as “ministerial exception” under the Establishment and Free Exercise Clauses of the First Amendment?

2. Was Perich a minister within the context of the “ministerial exception” such that the employment discrimination suit filed by EEOC on her behalf against her religious employer should be dismissed?

THE RULING:

1.    YES, there is such a thing as “ministerial exception” under the Establishment and Free Exercise Clauses of the First Amendment.

Since the passage of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, the US Courts of Appeals have uniformly recognized the existence of a “ministerial exception,” grounded in the First Amendment, which precludes application of such legislation to claims concerning the employment relationship be­tween a religious institution and its ministers. The Court agrees that there is such a ministerial exception. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such ac­tion interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

The EEOC and Perich contend that religious organizations can de­fend against employment discrimination claims by invoking their First Amendment right to freedom of association. They thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves. Their position, however, is hard to square with the text of the First Amendment itself, which gives spe­cial solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

The EEOC and Perich also contend that Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, precludes recogni­tion of a ministerial exception. But Smith involved government regu­lation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

2.    YES, Perich was a minister within the meaning of the “ministerial exception”; thus, the First Amendment requires the dismissal of the employment discrimination suit against her religious employer.

The ministerial exception is not limited to the head of a reli­gious congregation. The Court, however, does not adopt a rigid for­mula for deciding when an employee qualifies as a minister. Here, it is enough to conclude that the exception covers Perich, given all the circumstances of her employment. Hosanna-Tabor held her out as a minister, with a role distinct from that of most of its members. That title represented a significant degree of religious training followed by a formal process of commissioning. Perich also held herself out as a minister by, for example, accepting the formal call to religious ser­vice. And her job duties reflected a role in conveying the Church’s message and carrying out its mission: As a source of religious in­struction, Perich played an important part in transmitting the Lu­theran faith.

In concluding that Perich was not a minister under the exception, the Sixth Circuit committed three errors:

First, it failed to see any relevance in the fact that Perich was a commissioned minister. Alt­hough such a title, by itself, does not automatically ensure coverage, the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position.

Second, the Sixth Circuit gave too much weight to the fact that lay teachers at the school performed the same religious duties as Perich. Though relevant, it cannot be dispositive that others not formally recognized as ministers by the church per­form the same functions—particularly when, as here, they did so only because commissioned ministers were unavailable.

Third, the Sixth Circuit placed too much emphasis on Perich’s performance of secular duties. Although the amount of time an employee spends on particu­lar activities is relevant in assessing that employee’s status, that fac­tor cannot be considered in isolation, without regard to the other con­siderations discussed above.

Because Perich was a minister for purposes of the exception, this suit must be dismissed. An order reinstating Perich as a called teacher would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers. Though Perich no longer seeks reinstatement, she continues to seek front pay, back pay, com­pensatory and punitive damages, and attorney’s fees. An award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination. Such relief would depend on a determination that Hosanna-Tabor was wrong to have relieved Perich of her position, and it is precisely such a ruling that is barred by the ministerial exception.

Any suggestion that Hosanna-Tabor’s asserted religious reason for firing Perich was pretextual misses the point of the ministerial ex­ception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful is the church’s alone.

Today the Court holds only that the ministerial exception bars an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. The Court expresses no view on whether the exception bars other types of suits.