The Supreme Court Recognizes the Ministerial Exception in Hosana-Tabor Evangelical Lutheran Church and School

In a unanimous and somewhat narrow opinion today, the United States Supreme Court in Hosana-Tabor Evangelical Lutheran Church and School v. EEOC recognized the so-called "ministerial exception" barring a lawsuit against a religious organization by an employee seeking relief pursuant to federal anti-discrimination laws.   Justice Thomas wrote a short concurring opinion; Justice Alito authored a much longer concurring opinion, in which Justice Kagan joined.

The litigation was the focus of a well attended and lively "Hot Topics" panel at the AALS meeting a few days ago, exploring the multi-layered doctrine and ambiguous facts.

One problem is the status of Cheryl Perich as a minister eligible for any "ministerial exception."  Chief Justice Roberts declined to provide a test, but reversed the Sixth Circuit's finding that Perich was not a minister.  Perich was a "called teacher" at a school who performed the same duties as a "lay teacher."  The Sixth Circuit and the EEOC found it relevant that Perich's "religious duties consumed only 45 minutes of each workday" and "the rest of her day was devoted to teaching secular subjects."   Roberts, however, wrote that the issue should not be "resolved by a stopwatch."  Instead, the Court considered the fact that the Hosana-Tabor had issued Petrich a "diploma of vocation" according her the title "Minister of Religion, Commissioned."

Another factual issue regarded Ms. Perich's dismissal as an employee.  Ms. Perich developed narcolepsy, was asked to resign, refused, and later stated that she had spoken to an attorney.  The School terminated her on the basis of her insubordination and threat to take legal action.  She filed a charge with the EEOC based on a claim of retaliation under the Americans with Disabilities Act (ADA).  Justice Alito's concurring opinion discusses the relevance of "retaliation" under the First Amendment Religion Clauses:

Hosanna-Tabor discharged respondent because she threatened to file suit against the church in a civil court.This threat contravened the Lutheran doctrine that disputes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails. In Hosanna-Tabor’s view, respondent’s disregard for this doctrine compromised her religious function, disqualifying her from serving effectively as a voice for the church’s faith. Respondent does not dispute that the Lutheran Church subscribes to a doctrine of internal dispute resolution, but she argues that this was a mere pretext for her firing, which was really done for nonreligious reasons.

Altio then notes that such a pretextual argument would mean that "a civil court—and perhaps a jury—would be required to make a judgment about church doctrine."

While the concurring opinions avail themselves of the language of religious "autonomy" - - - a controversial concept especially in light of contemporary clergy sexual abuse issues - - - the Court's opinion avoids such language.  The Court specifically rejects the government's "parade of horribles" including retaliation for reporting criminal misconduct or testimony.  As the Court states,

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.

Given such language, commentators can surely criticize the case as carving out another exception, this time a "religious exemption," from anti-discrimination statutes a majority of the Court find unappealing.

While the Court's opinion relies on both the Establishment Clause and the Free Exercise Clause, stating that both "bar the government from interfering with the decision of a religious group to fire one of its ministers," those familiar with First Amendment Free Exercise Clause doctrine might wonder about precedent.  Specifically, one might question the relevance of Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990) - - - the peyote case - - - in which the Court declared that free exercise does not insulate against a neutral law of general applicability.  The Court did distinguish Smith:

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. [Citing Smith] (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

Thus, the Court found the contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses, as the government argued, to be without merit.  On one reading, this distinction protects religious institutions more than individuals.  On another, more cynical, reading, this distinction protects majority religious affiliation more than minority religious affiliation.  (Alito's concurring opinion is worth reading in that it stresses the religious specificity of "ministers" and seeks to broaden it).  The Court's reading of "outward physical acts" and "internal church decisions" may be workable, but it does veer close to the "autonomy" concept the Court avoided.

RR
[image: Martin Luther by Lucas Cranach der Ältere, 1529, via]