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.”