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U.S. Supreme Court Confirms “Ministerial Exception” in Employment Law

U.S. Supreme Court Confirms “Ministerial Exception” in Employment Law

Court says government can’t tell religious organizations who they must hire as “ministers” to promote faith

A unanimous U.S. Supreme Court has confirmed the existence of a Constitutionally-required “ministerial exception” that prevents the use of standard employment discrimination law against religious institutions selecting “ministers” who personify their beliefs and promote their faith.  But the Court has left for later decisions a determination of the exact contours of the definition of a “minister.”  (Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, No 10-553, 1/11/12.)

Hosanna-Tabor Evangelical Lutheran Church and School, a member of the Missouri Synod of the Lutheran Church, classifies its teachers into two categories, “called” and “lay.”  Called teachers are regarded as having been called to their vocation by God. They must have completed certain theological studies and be “commissioned” as a minister of religion.  Lay teachers do not have such a calling, and although they generally perform the same duties as called teachers, are hired only when called teachers are unavailable.

Cheryl Perich was a called teacher who developed narcolepsy and took a disability leave in 2004 and 2005.  When she applied to return, the school said it had already hired a teacher and asked her to resign.  She later showed up for work and refused to leave until she got a written acknowledgment that she had appeared.  Ultimately, the congregation rescinded her “call” and she was terminated for “insubordination and disruptive behavior” and “threatening to take legal action.”

She filed a charge for retaliation under the Americans with Disabilities Act with the Equal Opportunities Employment Commission, which brought suit against the school. The trial court dismissed the case under the ministerial exception. The Sixth Circuit Court of Appeals recognized the exception but found that she was not a minister and remanded the case for trial. The Supreme Court has reversed.

Although both trial and appeals courts have recognized a ministerial exception since the passage of the Civil Rights Act of 1964, the Supreme Court has never ruled on the issue.  Citing the First Amendment, which provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” the Court said that “both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.”

Chief Justice John Roberts traced controversy between church and state back to the Magna Carta of 1215 and concluded that the Constitution required a ministerial exception. “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. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”

The Court specifically refused to “adopt a rigid formula for deciding when an employee qualifies as a minister,” but found that the exception covers Perich “given all the circumstances of her employment.”

The school held her out as a minister, the Court said, and periodically reviewed her skills of ministry. Her title reflected a significant degree of religious training and a six-year process of commissioning. She held herself out to be a minister and taught her students religion four days a week and led them in prayer three times a day.

It said that the Court of Appeals placed too much emphasis on her secular duties and rejected the EEOC argument that the exception should apply only to those who perform exclusively religious functions. It said “the issue before us … is not one that can be resolved by a stopwatch.”

The Court also rejected the argument that the exception should be applied to employment actions taken solely for religious reasons. (See Nonprofit Issues®, 6/1/06, and 9/16/06.) “The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful — a matter strictly ecclesiastical — is the church’s alone.”

The Court specified that that its decision did not express a view on whether lawsuits other than employment discrimination lawsuits should be barred by the ministerial exception. “There will be time enough” to address the applicability of the exception to suits such as breach of contract or tortious conduct if and when they arise, it said.


This case is important, but certainly not definitive.  It confirms nearly half a century of lower court determinations that the government may not tell a religious group who it can or must select to minister to the faithful and promulgate the religion. And it also confirmed that the anti-discrimination laws do not apply in such situations even if the decision is not based strictly on religious grounds.

But it left open the definition of “religious group,” which has been the subject of significant litigation (See Nonprofit Issues®, Employment Law, 9/1/07), and the definition of “minister” (See Nonprofit Issues®, Employment Law, 11/1/11).  This is far from the last word on either subject.

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