New Supreme Court Religion Decision: Hosanna-Tabor Evangelical Lutheran Church and School
A Rare Unanimous Religion Clauses Decision by the Supreme Court
It is rare for the Justices of the Supreme Court to hand down a unanimous decision in a Religion Clauses case. But it happened on January 11, 2012, in Hosanna-Tabor Evangelical Church and School v. EEOC, 132 S. Ct. — (2012). This case involved the so-called “ministerial exception” to otherwise generally applicable federal law.
Perich, formerly a “called teacher” for the Hosanna-Tabor Evangelical Church and School (a member of the Lutheran Church-Missouri Synod), had filed a claim with the EEOC contending that she was terminated in violation of the Americans with Disabilities Act. Thereafter, the EEOC filed suit against Hosanna-Tabor (Perich intervened in this EEOC lawsuit) alleging that Perich had been fired in retaliation for previously threatening to file an ADA lawsuit. According to the Church, this threat contravened Church law.
Hosanna-Tabor countered that it was protected by a ministerial exception under the First Amendment’s Religion Clauses because the EEOC’s and Perich’s claims involved the employment relationship between a church and a minister.
Reversing the Sixth Circuit, which had determined that Perich did not qualify as a minister, the Supreme Court in an unanimous decision written by Chief Justice Roberts, found that she did indeed qualify as a minister and that Hosanna-Tabor was protected by the ministerial exception from suit for retaliation.
Chief Justice Roberts began by canvassing the history and purposes of both the Establishment Clause and the Free Exercise Clause and declared that under both clauses government must neither make religious appointments nor regulate or control them. Next, he observed for the Court that “[u]ntil today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment.”
Still, the Court had little difficulty in finding that the ministerial exception was solidly grounded on the First Amendment. Moreover, Perich was indeed a minister for ministerial exception purposes even though she was not a minister in the narrow sense. She was clearly more than a “lay teacher”: she had been given the title of “called teacher” before that title was revoked; she had called herself by that title; she had regularly, even if not exclusively, taught Church doctrine; and she had performed important religious functions for the Church. Thus, in this case Hosanna-Tabor was protected by the ministerial exception from liability for the alleged retaliation against Perich.
Justice Thomas concurred, arguing that the Court’s criteria for deciding whether a religious institution’s employee was a minister were too intrusive into religious matters. Rather, the inquiry should be essentially subjective in nature: Did the religious institution sincerely consider the employee to be a minister?
Justice Alito, joined by Justice Kagan, also concurred. They argued for a functional approach to the question whether an employee of a religious institution was a minister. “It should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” For them, the primary issue was one of religious autonomy.
1. The narrow focus of this decision was whether Perich (and the EEOC) could bring a retaliation suit under the ADA against Hosanna-Tabor, and not whether a disability discrimination claim could be brought. This was because the ADA itself provides religious entities with two defenses to claims of disability discrimination which don’t govern claims of retaliation.
However, there is little doubt after Hosanna-Tabor that had this not been the case, the ministerial exception would have covered a claim by Perich of disability discrimination brought directly under the ADA. Furthermore, the Court’s reasoning strongly suggests that other claims of employment discrimination are covered by this exception as well. “Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.”
2. Note that the Court rejected the argument of the EEOC and Perich that there was no need here for the Court to ground its decision on the Religion Clauses but instead should rely on the First Amendment’s freedom of association protection. The Court disagreed because freedom of association was enjoyed by both religious and secular groups. In contrast, the Religion Clauses gave “special solicitude” to the rights of religious organizations, and this solicitude was particularly relevant in these kinds of cases.
3. The Court distinguished its controversial Free Exercise decision in Employment Div. v. Smith, 494 U.S. 872 (1990), which effectively rejected Free Exercise Clause challenges to neutral and generally applicable laws. The Court explained that unlike Oregon’s prohibition on peyote use there, this case involved governmental interference with an internal church decision.
4. The Court emphasized that the decision whether a particular employee of a religious institution was a minister for purposes of the ministerial exception was to be made on a case by case basis, considering all of the circumstances of employment.
5. The Court also emphasized that its decision did not necessarily immunize religious institutions from liability for retaliating against employees who report criminal misconduct or who testify before a grand jury or in a criminal trial. Furthermore, its decision did not “bar government enforcement of general laws restricting eligibility for employment, because the exception applies only to suits by or on behalf of ministers themselves.” The Court explicitly said, though, that it was expressing no view about other types of suits against religious employers, such as breach of contract or tortious conduct.
6. The ministerial exception had been around in the federal courts for several decades and had apparently not created any major difficulties. It was therefore not surprising that the Court affirmed its existence in Hosanna-Tabor. Rather, the debate among several of the justices revolved around the definition of “minister” for purposes of the exception.