Wednesday, January 11, 2012
The Supreme Court issued its opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, unanimously reversing the judgment of the Sixth Circuit that the plaintiff's suit for retaliation under the ADA was not barred by the ministerial exception to the anti-discrimination laws. The Court held both that there was a broad ministerial exception grounded in the First Amendment prohibiting civil authorities from deciding cases brought by ministers against their religious employers and that the individual plaintiff in this case was a minister.
You might remember from earlier posts that the case involved a teacher at a parochial school who took leave for a disability and who was not allowed to return to work, she alleged, because of her disability. When she threatened to take legal action for retaliation under the ADA (and later did take legal action), she was fired. The plaintiff was a "called" teacher, which meant that she had satisfied academic requirements that included certain theological study and an oral test by faculty members. Called teachers were given the title of "Minister of Religion, Commissioned." The school used called and lay teachers to perform the same functions, but only used lay teachers when called teachers were not available. The individual plaintiff started teaching as a lay teacher and later became a called teacher.
After a lengthy historical analysis of the First Amendment's Free Exercise and Establishment Clauses and the special solicitude the First Amendment has for religion as compared to other beliefs or associations, and after noting the uniformity of the Courts of Appeals on the existence of a ministerial exception, the Court held that there was one, reasoning:
The members of a religious group put their faith in the hands of their ministers. 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.
Along the way, the Court rejected the notion that the issue was governed by Employment Division v. Smith, which had held that rules of general applicability could apply to bar or interfere with religious practices so long as those rules were rationally related to legitimate governmental interests. The religious practice at issue in that case, smoking peyote, was an "outward physical act," while choice of minister is "an internal church decision that affects the faith and mission of the church itself."
The Court then went on to hold that the individual plaintiff was a minister. The Court declined to adopt a test for when a person will be considered a minister, though. The Sixth Circuit had used a functional test, asking whether the plaintiff's duties were mostly secular or significantly religious. In rejecting that kind of purely functional test, the Court said:
We are reluctant . . . 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 [the plaintiff], given all the circumstances of her employment.
Here are the factors the Court considered, and I'm paraphrasing a bit: 1. The school held her out as a minister in a number of different ways including her title; 2. To receive the title, a teacher had to engage in specific religious training and 4. a formal process of commissioning; 5. The plaintiff held herself out to be a minister; and 6. Her job duties reflected a role in conveying the Church's message and carrying out its mission. So labels, the understanding of both employer and employee, training, a special ceremony or official acknowledgement of elevation to the position, and having some religious duties all are relevant. Given these, the Court concluded that she was a minister and that even if the school didn't really fire her for a religious reason, the action had to be dismissed.
Two concurrences addressed the test for who will be considered a minister. Justice Thomas would defer to the religious organization's designation of a person as a minister. As long as the organization believed in good faith that the person was a minister, that person would be a minister. Justice Alito and Justice Kagan cautioned that neither formal designation of the title "minister" nor a special religious process to become a minister should be given too much weight. Comparatively few religions refer to their clergy as ministers, and few religions have a formal religious ceremony to confer the title of a member of the clergy. They urged a more functional approach to focus on the role of the person in fulfilling the mission of the religion.
Overall, the Court's recognition of a ministerial exception is not very surprising, nor is the flexible, totality of the circumstances kind of test. I do find the application in this case somewhat vexing, however. The Court really glossed over one of the key points in this case--that the individual plaintiff, in asking for damages or her job, did not ask to be reinstated for her call. She didn't ask to become a minister again; she asked to become a teacher again. She had been a teacher before she was a minister, and there were other teachers who were not ministers. This simply doesn't seem to me to be a situation in which the courts would be dictating to a religious entity who its ministers were supposed to be. That application suggests a much broader meaning to what the ministerial exception protects religious employers from than simply choices about who will be ministers.