This post was co-authored by Michael Blacher
On January 11, 2012, the U.S. Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553, in which the Court recognized for the first time the existence of the “ministerial exception” to employment discrimination laws. That exception allows religious organizations, including religious schools, to make employment decisions affecting “ministers” without being subject to anti-discrimination laws. The ministerial exception is a judicial creation rooted in the First Amendment’s Free Exercise and Establishment clauses, and has been applied for many years by federal and state courts.
Most observers of the Court expected it to recognize the exception, as it did. But the more difficult question was how broadly the Court would view the exception. That is, who qualified as a “minister?” The Hosanna-Tabor case involved not an actual “minister” – or priest, rabbi, or other individual with strictly religious duties – but a teacher at a religious school who instructed primarily on secular topics.
The facts of Hosanna-Tabor are as follows (as reported in our earlier blog post of October 11, 2011 following oral argument in the case). Hosanna-Tabor Evangelical Lutheran Church and School operates a church and an elementary school. It has two types of faculty: (1) limited-term “lay” or “contract” teachers and (2) for-cause “called” teachers. Called teachers must complete a course of religious study and receive a certificate of admission into the teaching ministry. They receive the title of “commissioned minister.”
In 2000, Cheryl Perich began work as a contract teacher but shortly thereafter changed her status to a “called” teacher. Her employment duties remained essentially the same. She taught math, language arts, social studies, science, gym, art, and music. However, Perich also taught a religion class four days per week, attended a chapel with her class once a week, and led her classes in prayer.
In 2004, Perich went out on disability leave. The School Board ultimately offered Perich a “peaceful release” agreement wherein she would release claims against the School in return for a monetary payment. When Perich refused and threatened legal action, however, the Board fired her. It gave the religious reason (as the Supreme Court described it) that “her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”
Perich filed a charge with the Equal Employment Opportunity Commission (“EEOC”) for disability discrimination and retaliation under the Americans with Disabilities Act (“ADA”), and the EEOC decided to litigate the charge of retaliation on her behalf. The district court determined that Perich was covered by the ministerial exception and granted summary judgment to the School. But the U.S. Court of Appeals for the Sixth Circuit reversed. It found that because most of Perich’s job duties did not have a religious character, and because her “primary” functions were secular, the ministerial exception did not apply.
This week, on January 11, 2012, the U.S. Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, held that the ministerial exception did apply. The opinion began its discussion by describing that both of the “religion clauses” of the First Amendment (the Free Exercise clause and the Establishment clause) “bar the government from interfering with the decision of a religious group to fire one of its ministers.” The opinion then recited the history of government interference, or at times deliberate non-interference, in religious organizations’ employment decisions, from the Magna Carta through the Cold War. The opinion uses this concise narration of history and case law as a prelude to its holding recognizing the existences of the exception.
After acknowledging the existence of a ministerial exception, the Court set about defining its breadth and limitations. The Court’s noted that “Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.”
The Court identified a number of factors it found significant in determining that Perich’s employment was subject to the exception:
First, Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members.
Second, Perich’s title as a minister reflected a “significant degree of religious training” and election to her position by a vote of the church congregation.
Third, Perich claimed a special housing allowance on her taxes that was available only to employees earning their compensation “in the exercise of the ministry” (known as parsonage).
Fourth, Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission. The Court observed, among other things, that “Perich taught her students religion four days a week, and led them in prayer three times a day.” She had a number of other religious duties as well. The Court made clear that the fact that Perich had a substantial number of secular responsibilities was not dispositive of whether the ministerial exception applied to her.
Although the October 5, 2011 oral argument yielded opinions from the Justices that covered a very broad range of topics and reflected disparate interpretations of the doctrine, the Court’s January 11, 2012 opinion largely set aside the apparent differences and focused on areas of agreement. Two Justices wrote concurrences that may serve as guides to future interpretations of the exception. Justice Thomas wrote in a short concurring opinion that the determination of whether an employee qualified as a “minister” for a certain faith was – in itself – a question that could really only be resolved by the religious organization on religious grounds, and not by a secular court. Accordingly, in his view courts should defer to “good faith” decisions by religious organizations as to who qualifies as a minister. The final concurrence by Justice Alito, thought to be one of the Court’s most conservative members, joined by Justice Kagan, thought to be one of its most liberal, addressed two issues. It noted that the term “minister” is misleading and should not distort the way the exception applies to religions that do not have “ministers.” It also expounded a fairly broad understanding of the term “minister” which included all employees performing a religious function or serving as a messenger or teacher of the faith.”
The Court’s opinion provides substantial clarity in how the ministerial exception applies, but does not touch directly on a number of subjects that remain to be developed further. For example, what types of institutions may use the exception? To what causes of action does it apply? While lower courts have addressed these issues – and there is dispute among those decisions – the Supreme Court chose not to clarify these points. As Chief Justice Roberts wrote near the conclusion of his decision, “There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”
We will report on further developments in this important area of the law for religious employers, including religious schools.