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Unites States Supreme Court Decides Landmark Religious Freedom Case
Perhaps the “most significant religious liberty decision in two decades.” That is how the New York Times described the U.S. Supreme Court’s recent 9-0 decision recognizing for the first time a “ministerial exception” to employment discrimination laws for religious organizations. The Court’s unanimous ruling for a Lutheran church in Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. protected the “special solicitude” the First Amendment gives to the right of religious organizations to choose and to dismiss their “ministers” without government interference. 132 S. Ct. 694, 706 (2012). The Court did not define precisely which employees of religious organizations qualify as “ministers,” although the concurrences offered two possible standards. Nevertheless, Hosanna-Tabor is a resounding victory for the autonomy of America’s religious organizations.
The case involved a dispute between a Lutheran church and elementary school in Redford, Michigan and one of its teachers, Ms. Cheryl Perich. Id. at 699. The school employed both “called” and “lay” teachers. Ms. Perich was “called” by the congregation after she completed a colloquy of theological studies, was endorsed by the local ecclesial district, and passed a faculty examination. Id. Once called as a “commissioned minister,” she taught kindergarten, and later fourth grade, on a variety of subjects including religion classes four days a week. The school instructed all its teachers to weave religious education into as many subjects as possible. Ms. Perich also led the students in daily prayer, participated in weekly school-wide devotional services, and periodically led the school-wide service. Id. at 700.
In the summer of 2004, Ms. Perich became ill with what was later diagnosed as narcolepsy. Id. Her condition forced her onto disability leave at the start of the school year and she later disagreed with the school about her fitness to return to the classroom. When she attempted to return to work and threatened to file a civil complaint if refused, the congregation promptly voted to fire her. The school claimed that she was insubordinate and had violated its biblical commitment to resolving disputes within the faith community. Id; see also 1 Corinthians 6:1-7.
True to her word, Ms. Perich filed a charge with the EEOC and later sued the school in federal district court for violating the Americans with Disabilities Act, which protects individuals from disability discrimination and prohibits retaliation against those pursuing ADA lawsuits. See 42 U.S.C. §§ 12112(a) 12203(a). The district court dismissed her complaint, relying on the “ministerial exception.” E.E.O.C. v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 582 F. Supp. 2d 881, 891 (E.D. Mich. 2008), vacated 597 F.3d 769 (6th Cir. 2010), rev’d 132 S. Ct. 694 (2012). The ministerial exception is an affirmative defense to employment discrimination and related claims and is meant to protect the First Amendment rights of religious groups. Hosanna-Tabor, 132 S. Ct. at 701, 709 n.4.
The United States Court of Appeals for the Sixth Circuit reversed in an opinion by Judge Clay. Judge Clay recognized the existence of the ministerial exception, but applied a narrow test to determine who qualified as a “minister” by focusing on the employee’s “primary duties.” E.E.O.C. v. Hosanna-Tabor Evangelical Lutheran Church & Sch., 597 F.3d 769, 778 (6th Cir. 2010), rev’d 132 S. Ct. 694 (2012). The court calculated that the teacher spent six hours and fifteen minutes on “secular subjects,” as defined by the court, and spent an average of only 45 minutes on religious duties. Id. at 780. The court held that her “primary duties” were secular, and therefore she was not a “minister” within the exception. Id. at 780-81. In so holding, the panel discounted the church’s stated reliance on Perich as a conduit of the gospel to its students and her commissioned title. The Supreme Court granted certiorari to review the decision.
At the Court, the government and the EEOC argued that the ministerial exception was unnecessary as religious groups could sufficiently protect their interests using their constitutional right of free association. See 132 S.Ct. at 706; Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). They also contended that the exception was precluded by Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990) because the ADA is a valid and neutral law of generally applicability. Finally, the government claimed that the church’s explanation for the firing was merely pretextual.
The Court rejected the government’s positions as “untenable,” “remarkable,” and “extreme.” Hosanna-Tabor, 132 S.Ct. at 706, 709. The Court found it “hard to square” blank reliance on associational rights held by secular and religious groups with the text of the First Amendment that undoubtedly “gives special solicitude to the rights of religious organizations.” Id. at 706. The Court also distinguished the case from Smith based on the contrast between the physical, outward act of ingesting peyote at issue there and the exercise of the church’s internal governance in Hosanna-Tabor, a task integral to its ability to carry out its mission. Id. at 707.
Instead, Chief Justice John Roberts’s majority opinion expressly held for the first time in Supreme Court jurisprudence that there is a ministerial exception grounded in the Religion Clauses of the First Amendment. Id. While this exception had long been recognized by the various courts of appeals, it had not received the Supreme Court’s explicit approval. Harkening back to the days of King John and the signing of the Magna Carta, the Court began by sketching the historical backdrop of the Constitution’s commitment to religious liberty. Id. at 702. Prominent in the portrait were two incidents involving James Madison. In the first, John Carroll, the original Catholic bishop in the United States whose episcopal seat was in Baltimore, sought President Jefferson’s advice on whom to appoint as head of the Church in the Louisiana Territory. Secretary of State Madison, speaking on the President’s behalf, declined to offer an opinion, explaining that such matters were to be left entirely to the church. Id. at 703. In the second, then-President Madison vetoed a Congressional bill incorporating the Protestant Episcopal Church in what was then part of the District of Columbia because it would have violated the establishment clause. Id. at 703-04. Madison specifically noted his objection to the bill’s provision of rules for “the election and removal” of the church’s minister. Id. at 704 (internal quotation marks and citation omitted).
Drawing on this historical background to apply the newly-recognized exception, the Court reversed the Sixth Circuit’s decision and rejected the primary duties test, holding that the Court of Appeals had erred by finding the teacher’s title irrelevant, giving too much weight to the similar duties performed by secular teachers, and putting too much emphasis on the teacher’s performance of “secular” functions. Id. at 708. Instead, the Court focused on the “formal title” given the teacher by the church, the “substance reflected in that title,” the teacher’s own use of the title, and the “important religious functions” the teacher performed. Id. While it expressly declined to adopt a specific test to determine whether an individual is a “minister,” the Court’s analysis indicates that some deference must be given to the religious organization’s conception of the individual’s role.
The Court also rejected any pretext inquiry. As the Chief Justice explained, such an investigation into the church’s motives “misses the point:”
Id. at 709 (emphasis added).
Questions regarding how to apply the ministerial exception remain. In the absence of a definitive test from the majority opinion to determine who counts as a “minister,” both concurrences sought to guide the work of lower courts in future cases. Justice Thomas’s brief concurrence advocated simple deference to a “religious organization’s good-faith understanding of who qualifies as its minister” as the proper standard. Id. at 710. Justice Alito, joined by Justice Kagan, counseled that courts should focus on the functions performed by the individual, rather than his or her formal title, particularly as many religious groups have no “ministers” or similar titles. Id. at 711. Justice Alito also emphasized that the individual’s performance of secular tasks “makes no difference” to whether he or she is a “minister.” Id. at 715. Rather, what is important is whether the individual “play[s] an important role as an instrument of her church’s religious message and as a leader of its worship activities.” Id. What standard the various circuits apply remains to be seen.
Hosanna-Tabor establishes the ministerial exception as a bulwark of religious liberty. The exception protects religious organizations’ right to choose who will teach, preach, lead and shepherd them, free from government oversight or interference. Surely a result that would please President Madison, if not King John.
Stephen J. Wallace is an associate at in the Washington, D.C. office of Drinker Biddle & Reath LLP. He can be reached at Stephen.Wallace@dbr.com.