Divining the Scope of the Ministerial Exception

Vol. 39 No. 2

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In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012), the Supreme Court ruled for the first time that the First Amendment requires a “ministerial exception” that allows religious employers to discriminate against their employees without any court review. Early cases interpreting Hosanna-Tabor suggest that many employees will lose their day in court because judges have ordained them ministers. Churches are also advocating a broad reading of Hosanna-Tabor to limit employee rights.

Hosanna-Tabor involved a disabilities discrimination lawsuit brought by Cheryl Perich, an elementary school teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K–8 school in Redford, Michigan. As the 2004–05 school year approached, Perich suddenly and unexpectedly became ill. When she tried to return to class from disability leave, the school suggested that she voluntarily resign. Perich refused and was fired after she threatened to talk to the Equal Employment Opportunities Commission (EEOC) about a disabilities discrimination lawsuit. She then sued Hosanna-Tabor under the anti-retaliation provisions of the Americans with Disabilities Act, 42 U.S.C. § 12202(a).

The Supreme Court reversed the Sixth Circuit’s ruling that Perich’s lawsuit could proceed because her primary duties at the school were secular, see EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769 (6th Cir. 2010), and ruled that Perich was a minister for purposes of the ministerial exception. The Court decided that the Free Exercise and Establishment Clauses of the First Amendment require a ministerial exception. The opinion by Chief Justice John Roberts applied a simple syllogism: (1) Churches enjoy absolute freedom to pick their ministers; (2) Perich was a minister; and therefore (3) the employment laws could not be enforced.

The Court’s fact-specific ruling left wide open the question of which future plaintiffs will be dismissed from court because they are “ministers.” Instead of providing a precise definition of minister, the Court emphasized the particulars that Perich had completed theological studies in a Lutheran colloquy to qualify as a “called” (not lay) teacher, that she claimed a minister’s housing allowance on her tax return, and that Hosanna-Tabor considered Perich to be a minister. Ministerial status was thus based on “the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church.” Hosanna-Tabor, 132 S. Ct. at 708.

The concurrences supplemented the Court’s sparse guidelines. Justice Clarence Thomas concluded that courts should always defer to the churches’ definition of minister. Id. at 710. Justice Samuel Alito, joined by Justice Elena Kagan, wrote that the word “minister” “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”Id. at 712.

A primary question post-Hosanna-Tabor is how broadly the courts will interpret “minister” to restrict employees’ civil rights. Of equal importance is how many types of lawsuits—e.g., race, gender, or age discrimination; breach of contract; torts—will be barred in addition to Perich’s disabilities claim. Pre-Hosanna-Tabor, state and federal courts dismissed civil rights claims brought under the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family and Medical Leave Act, workers’ compensation laws, and numerous state tort and contract laws.

The breach of contract case law is emerging with clarity. Two courts allowed actual ministers—pastors with the Presbyterian Church and the African Methodist Episcopal Church, respectively—to pursue breach of contract lawsuits for wages due on past work already completed without even mentioning Hosanna-Tabor. See Crymes v. Grace Hope Presbyterian Church, Inc., 2012 WL 3236290 (Ky. App. Aug. 10, 2012); Second Episcopal District African Methodist Episcopal Church v. Prioleau, 49 A.3d 812 (D.C. Aug. 9, 2012).

Ironically, employees who were not pastors fared less well in their breach of contract lawsuits about illegal firing. Lexington Theological Seminary is a Disciples of Christ school. Nonetheless, a tenured Jewish scholar of Jewish studies and a Methodist Episcopal Church pastor and teacher who were fired when economic conditions at the school changed had their lawsuits dismissed under Hosanna-Tabor. See Kant v. Lexington Theological Seminary, 2012 WL 3046472 (Ky. App. July 12, 2012); Kirby v. Lexington Theological Seminary, 2012 WL 3046352 (Ky. App. July 27, 2012). Kant is especially troubling in holding that a Jewish professor teaching an academic subject is a Christian minister even though he does not believe in Jesus Christ. See Kant, 2012 WL 3046472, at *15 (Keller, J., dissenting). A non-Catholic technology coordinator at a Catholic school, who was fired after she became pregnant through artificial insemination, had better luck when a court ruled it was “dispositive” that she was not Catholic and allowed her pregnancy discrimination case to proceed. Dias v. Archdiocese of Cincinnati, 2012 WL 1068165 (S.D. Ohio Mar. 29, 2012).

Age discrimination joined disabilities discrimination in being beyond court review for schoolteachers at Temple Emanuel and St. Peter Lutheran Church who were of the same faith as their schools. Temple Emanuel of Newton v. Massachusetts Commission Against Discrimination, 463 Mass. 472 (2012); Herzog v. St. Peter Lutheran Church, 2012 WL 3134337 (N.D. Ill. Aug. 1, 2012).

The cases confirm Chief Justice Roberts’s broad, bleak, and blank check for churches to discriminate even for nonreligious reasons; churches may not be sued for age and disabilities discrimination even though such discrimination is not a tenet of their religious faith that the First Amendment needs to protect.

Beware future broad readings of Hosanna-Tabor. In the pregnancy case, the defendant Catholic school argued that the teacher, who had no religious training and no involvement in religious classes or services, was a minister because she was a “role model” for students. Dias, 2012 WL 1068165, at *5. Kant, the Jewish professor case, confirms that some courts will accept such broad claims and ordain anyone working near a religious university, hospital, or school.

Another possibility is that the case becomes a broad license for religious freedom to flout the law. Religious organizations have already cited Hosanna-Tabor for the proposition that they do not have to follow the law and provide contraceptive insurance to their employees, even secular and nonministerial employees. It remains to be seen if the courts will extend church autonomy over employee rights that far.

 

Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. She teaches constitutional law and the First Amendment. She is author of the Foundation Press casebook, Law and Religion: Cases and Materials (2d ed. 2010).

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