Opinion recap: A solid “ministerial exception”
Closing the courthouse door much of the way, but not completely, to workplace bias lawsuits by church employees who act as ministers to their denominations, the Supreme Court on Wednesday unanimously gave its blessing — for the first time — to a “ministerial exception” to federal, state, and local laws against virtually all forms of discrimination on the job. The Court’s ruling, which only Justice Clarence Thomas said did not go far enough, did not order courts to throw out all such lawsuits as beyond their jurisdiction, but it left them with only a narrow inquiry before the likely order of dismissal would come down. As soon as the denomination makes its point that it counts an employee as a “minister,” within its internal definition, that is probably the end of the case. And the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission.
The decision, with the main opinion written by Chief Justice John G. Roberts, Jr., was clearly one of the most important church-state rulings that the Court had issued since its 1990 ruling, in a case involving a Native American church ritual of smoking peyote. In that case, the Court allowed the government to apply “neutral and general” laws to some religious practices, but the Chief Justice on Wednesday said that did not control the new ruling — in the case of Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission (docket 10-553).
The Roberts opinion dismissed as an “extreme position” the plea of EEOC to limit any “ministerial exception” solely to workers who perform “exclusively religious functions.” While the opinion said the Court was “reluctant to adopt a rigid formula for deciding when an employee qualifies as a minister,” the opinion went on to describe some key factors that courts are to take into account in judging whether a given denomination has proved its claim to the exception.
In this particular case, involving a parochial school teacher in Redford, Mich., who spent most of her work time on non-religious duties, the Court found these to be decisive factors: that she was formally commissioned or ordained as a “minister” in the Lutheran denomination’s internal practices, that she did perform “important religious functions” in addition to her teaching of lay subjects in the classroom, and that her non-religious duties, however extensive, did not make a difference. The Chief Justice said the Court was unsure whether any church employee would ever do exclusively religious chores.
There was one difference of opinion among the nine Justices, and it could turn out to be a significant one as lower courts apply the new decision when, perhaps inevitably, new claims of discrimination are made by church staff members. While all nine members said they joined the Roberts opinion, Justice Thomas made it clear in a separate opinion that he did not fully embrace it.
The Roberts opinion said in a final footnote that is likely to take on added significance as time goes on, that the “ministerial exception” was not “a jurisdictional bar” to all such lawsuits claiming workplace bias. Rather, the Chief Justice explained, it is “a defense on the merits.” Thus, such lawsuits can be filed, and the worker who is suing will make a claim that he or she is the victim of discrimination, and then the denomination gets to answer that the case cannot go further because it considers the employee to be a “minister.”
The footnote concluded: “District courts have power to consider [such] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.” That clearly gives a court a role in judging the claim for an exception, although Wednesday’s opinion went far to narrow that role.
Justice Thomas, however, said in his concurring opinion that the Constitution’s guarantee of religious organizations’ right to govern their internal affairs, including the right to choose ministers, “would be hollow…if secular courts could second-guess the organization’s sincere determination that a given employee is a ‘minister’ under the organization’s theological tenets….Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the ‘mainstream’ or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding ‘ministers’ to the prevailing secular understanding.”
In the particular case before the Court, Thomas added, it was clear that the parochial school’s sponsoring church “sincerely” considered the teacher to be a minister. “That would be sufficient for me to conclude that [this] suit is properly barred by the ministerial exception.”
Because the Chief Justice and seven of the Justices did apply a “multi-factor analysis,” it does appear that Thomas would have gone further. His separate comments suggested that, even if such a lawsuit got into court at all, it would swiftly be out of court as soon as the denomination filed an explicit claim that the employee fit the exception — in its view, not that of the court. That he did not dissent from the Chief Justice’s footnote appeared to mean that he, too, did not regard the exception as a “jurisdictional bar,” but not much short of that.
None of the laws specifically at issue in the new case — the Americans with Disabilities Act, or the Michigan state civil rights and whistleblower protection laws — explicitly recognized an exception so that the laws would not apply to those who qualify as part of the religious ministry of a religious organization.
The Supreme Court has long recognized a First Amendment right for religious organizations to control their own internal affairs, including the selection of their religious leaders — a history in which the Court has had a role since 1872 and in which the Founding generation was involved at least as early as 1806. The Court, as it acknowledged Wednesday, however, has never recognized an explicit “ministerial exception” to anti-discrimination laws at any level. It did so, with considerable enthusiasm, in the Hosanna-Tabor case.
That case involved the Hosanna-Tabor Evangelical Lutheran Church and School, an affiliate of the Lutheran Church-Missouri Synod. It operates a church and school in Redford, Mich., offering classes from pre-school through the eighth grade. It has teachers who work on contract, and teachers whom it regards as “called” in the spiritual sense, after they have completed a course at a Lutheran college. It regards them as “commissioned ministers.” However, most of them working as teachers do not have duties that are much different from contract teachers — that is, on the whole, all teachers mostly lead classes in non-religious subjects.
In July 1999, the school hired Cheryl Perich to teach kindergarten as a contract teacher. The next year, she completed the required religious studies and became a “called” teacher, but with no change in what she taught. For the next three years, she taught kindergarten. During the 2003-2004 school year, she taught third and fourth grades. She taught math, language arts, social studies, science, gym, art, and music, using non-religious textbooks. She almost never introduced any religious ideas into her classes; she remembered, in fact, doing so only twice.
However, four days a week, for 30 minutes, she taught a religion class, and she attended chapel with her class once a week for 30 minutes. She did lead her class in prayer three times a day, for five or six minutes. In the final year she was at the school, the class under her leadership engaged in a brief devotional activity each day. Twice a year, she took her turn — with all teachers, contract or “called” — in leading chapel services.
In June 2004, before the next term opened, she suddenly became ill and was hospitalized. She ultimately was diagnosed with narcolepsy, and took a leave for the following school year. In January 2005, she told the school she would be cleared to return to work in February. The school, however, decided that her health would not permit her return, and a replacement was hired to teach third and fourth grades. School officials then decided it would be best if she resigned. Ultimately, Perich and school leaders came into sharp conflict, when she threatened to sue, claiming that the refusal to retain her was based on her illness, and thus the school would be charged with violating the Americans with Disabilities Act. When she tried to return to school, she was fired; she was told that she was let go because of her threat to sue, which violated a Lutheran religious tenet that members of the faith should resolve internally their disagreements.
She filed charges with EEOC, claiming retaliation under the ADA. The EEOC wound up suing the school, and Perich joined in the lawsuit. A District Court ruled that her claim was barred by the “ministerial exception” to federal workplace discrimination law. The Sixth Circuit Court, however, while recognizing (as have all federal Circuit Courts) that there was such an exception, ruled that Perich could not be treated as a “minister” under that exception because her duties were not primarily involved in the teaching of the faith, and that she had no role in spreading the faith or in church government.
That was the result the Supreme Court overturned Wednesday. Tracing the constitutional history of allowing religious organizations the independent right to control their internal affairs, Chief Justice Roberts’ opinion said the string of Court rulings going back to Watson v. Jones in 1872 “confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Religious organizations, the Court said, have that freedom from official interference for matters of church government as well as matters of faith and doctrine.
Explicitly following the lead of all federal appeals courts in acknowledging a “ministerial exception,” the Court said that “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.” Such interference, it concluded, violates both the Free Exercise Clause of the First Amendment, and that Amendment’s Establishment Clause.
The Court went on to apply the concept to Cheryl Perich’s case, and found that the Hosanna-Tabor church had made its case that she was a “minister,” as the denomination saw it, so her lawsuit could not go forward. To the argument by Perich and by EEOC that the church had made up, as a pretext, the notion that she was fired for the religious reason of not settling the conflict internally, the Chief Justice’s opinion said that missed the point of the “ministerial exception.” The issue was not why Perich was fired, but whether the church had deemed her unfit as a “minister” within its faith practices.
The Court stressed that it was ruling only on an employment discrimination claim, and thus did not address any other type of lawsuit by a church employee, including such possible claims as breach of contract or “tortious conduct” against an employee by a religious employer. Such issues can be judged when they arise, the Court concluded.
Joining the opinion but writing separately was Justice Samuel A. Alito, Jr., with Justice Elena Kagan joining his concurring opinion. That opinion argued that the freedom to choose one’s spiritual leaders was broader than merely the choice of “ministers,” since some faiths do not follow that approach to religious governance. What courts must focus upon in such cases, the concurring Justices said, is “the function performed by persons who work for religious bodies.”
Justice Alito noted that appeals courts had joined in applying this type of functional approach, and said that nothing in the Roberts opinion should be read “to upset this consensus.”
Recommended Citation: Lyle Denniston, Opinion recap: A solid “ministerial exception”, SCOTUSblog (Jan. 11, 2012, 11:33 AM), http://www.scotusblog.com/2012/01/opinion-recap-a-solid-ministerial-exception/