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What Is At Issue In the Hosanna-Tabor Case?

By Howard M. Friedman

Today the Supreme Court granted certiorari in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. (See prior posting.) The petition for certiorari described the Question Presented as follows:

The federal courts of appeals have long recognized the "ministerial exception," a First Amendment doctrine that bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. The circuits are in complete agreement about the core applications of this doctrine to pastors, priests, and rabbis. But they are evenly divided over the boundaries of the ministerial exception when applied to other employees. The question presented is:

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

There are several related and overlapping rules of law in cases in which private parties are suing religious organizations.  One is the constitutionally-based "ecclesiastical abstention" doctrine which holds that civil courts should not entangle themselves in disputes that involve questions of theological interpretation, church discipline, religious law, religious custom or ecclesiastical rule.

A related but separate question arises when a regulatory statute includes a specific exemption for religious organizations.  Here the scope of the exemption depends upon the specific statutory language. Thus a provision in the Americans With Disabilities Act allows religious organizations and schools to give an employment preference to individuals of a particular religion, and allows religious organizations to require employees to conform to the religious tenets of the organization.

The third legal rule is the one involved in Hosanna- Tabor-- the "ministerial exception." This is a judicially created exception to the application of employment discrimination laws. The exception originated out of constitutional concerns over judges imposing themselves in decisions by congregations about who will serve them as clergy. If a congregation fires a pastor for giving uninspiring sermons, the government should not decide whether that evaluation is correct.  If a synagogue refuses to employ a rabbi because he is not sufficiently traditional in his beliefs, no court should be in the business of deciding whether that is an accurate assessment.  However sometimes the reasons for firing, or refusing to hire, a member of the clergy may be ones which, in other employment contexts, would be impermissible. The action may have been based on considerations such as gender, race, age or disability. Often the parties have different views of the reasons underlying an employment decision and the court is being asked to determine the true motivation.  Where the ministerial exception applies, a court will not consider claims that improper motivations were involved. So the ministerial exception deprives clergy of employment protections available to all other employees and makes serving as a member of the clergy a risky occupation.

Hosanna- Tabor raises the question of how many other employees of religious organizations should be subject to the same risks of having no recourse when they have been dismissed for frivolous or perverse reasons having no relation to religious doctrine. The 6th Circuit held that whether an employee is a "minister" for purposes of this exemption depends on whether "the employee?s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship." It found that Cheryl Perich's duties were not primarily religious so she could pursue a claim that she was dismissed in violation of the Americans With Disabilities Act. Some other circuits have concluded that the ministerial exception applies so long as an employee of a religious organization has some religious duties or responsibilities, even if those are not the person's primary duties. That test would have precluded Perich from suing.

Full post as published by Religion Clause on March 28, 2011 (boomark / email).