JOHN R. RUSSELL, LTD: I'm a solo attorney in the south Chicago suburbs, focusing my practice in real estate, labor & employment, estate planning/probate, corporations and small business, not for profit organizations, health care law, elder law, and school/municipal law.
Sunday, January 22, 2012
U.S. Supreme Court Upholds Religious Freedom with Confirmation of the "Ministerial Exception"
A few weeks ago, on January 11, 2012, the U.S. Supreme Court made a unanimous decision which is one of the clearest rulings in favor of religious freedom in decades. In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court affirmed the “ministerial exception” under civil rights law, effectively preventing civil court review of employment disputes between churches and ministers. The EEOC had sought to eliminate the exception. This “ministerial exception” has been applied to a wide range of employment disputes by state and federal courts over the past fifty years, but this was the first time the Supreme Court addressed the issue.
“[T]he authority to select and control who will minister to the faithful is the church’s alone,” Chief Justice John Roberts wrote in the court’s opinion. Three other Justices -- Clarence Thomas, Samuel Alito, and Elena Kagan -- wrote separate concurring opinions, and argued that the ministerial exception should have even broader application than the unanimous opinion held.
“It was a strong rebuke to the extreme position taken by the Obama administration,” said Luke Goodrich of the Becket Fund for Religious Liberty, who served as counsel to the church in the case. “One of the biggest things is it’s unanimously decided, which nobody was predicting and is a really big deal. … It’s a great day for religious liberty.”
The case involved the Hosanna-Tabor Evangelical Lutheran Church and School, an affiliate of the Lutheran Church-Missouri Synod. It operates a church and school in Redford, Mich., offering classes from pre-school through the eighth grade. It has teachers who work on contract, and teachers whom it regards as “called” in the spiritual sense, after they have completed a course at a Lutheran college. It regards them as “commissioned ministers.” However, most of them working as teachers do not have duties that are much different from contract teachers — that is, on the whole, all teachers mostly lead classes in non-religious subjects.
In July 1999, the school hired Cheryl Perich to teach kindergarten as a contract teacher. The next year, she completed the required religious studies and became a “called” teacher, but with no change in what she taught. For the next three years, she taught kindergarten. During the 2003-2004 school year, she taught third and fourth grades. She taught math, language arts, social studies, science, gym, art, and music, using non-religious textbooks. She testified that she almost never introduced any religious ideas into her classes.
However, four days a week, for 30 minutes, she taught a religion class, and she attended chapel with her class once a week for 30 minutes. She did lead her class in prayer three times a day, for five or six minutes. In the final year she was at the school, the class under her leadership engaged in a brief devotional activity each day. Twice a year, she took her turn — with all teachers, contract or “called” — in leading chapel services.
In June 2004, before the next term opened, she suddenly became ill and was hospitalized. She ultimately was diagnosed with narcolepsy, and took a leave for the following school year. In January 2005, she told the school she would be cleared to return to work in February. The school, however, decided that her health would not permit her return, and a replacement was hired to teach third and fourth grades. School officials then decided it would be best if she resigned. Ultimately, Perich and school leaders came into sharp conflict, when she threatened to sue, claiming that the refusal to retain her was based on her illness, and thus the school would be charged with violating the Americans with Disabilities Act. When she tried to return to school, she was fired; she was told that she was let go because of her threat to sue, which violated a Lutheran religious tenet that members of the faith should resolve their disagreements via internal church arbitration.
She filed charges with the EEOC, claiming retaliation under the ADA. The EEOC wound up suing the school, and Perich joined in the lawsuit. A District Court ruled that her claim was barred by the “ministerial exception” to federal workplace discrimination law. The Sixth Circuit Court, however, while recognizing (as have all federal Circuit Courts) that there was such an exception, ruled that Perich could not be treated as a “minister” under that exception because her duties were not primarily involved in the teaching of the faith, and that she had no role in spreading the faith or in church government.
Indeed, Assistant Solicitor General Leondra Kruger had argued before the Supreme Court that the church school should only have the protection of freedom of association, the same protection that a labor group has. The court in its opinion characterized that argument as both “remarkable” and “extreme,” noting that the Constitution outlines specific protections for religion beyond those for a labor organization. Religious cases before the Supreme Court often center on the tension between the Free Exercise Clause of the Constitution and the Establishment Clause, but Roberts wrote that in this case, both clauses protect the Lutheran school from government interference.
This was the first time the high court had ever ruled on the ministerial exception -- a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question qualified. The court did look at several distinct factors in the evidence to bolster its conclusion that the teacher qualified as a “minister,” such as (1) her role was distinct from that of most of the church's members; (2) when her congregation called her as a teacher, it provided her with a certificate according her the title of "commissioned minister"; (3) she was tasked with performing her teaching duties "according to the Word of God"; (4) the congregation prayed that God would bless her ministry to the glory of God; (5) to become a licensed minister, the teacher had to complete eight college-level courses, receive endorsement from her Synod district, and pass an oral examination; (6) she was commissioned as a minister only upon election by her congregation upon its recognition of God's call to her to teach; (7) she held herself out as a minister by accepting the formal call to teach, and by claiming a housing allowance exclusion on her tax return; (8) her job duties demonstrated her role in conveying the church's religious message and carrying out is mission; (9) she performed several religious duties at the school as a called teacher. The Court concluded: "In light of these considerations—the formal title given [her] by the church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the church—we conclude that [she] was a minister covered by the ministerial exception."
Yet, the court refused to adopt any particular standard for determining when a litigant is a “minister.” “We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision. Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role.
The 6th U.S. Circuit Court of Appeals ruling in favor of the teacher had primarily been based on the fact she spent more minutes of the day teaching secular subjects than religious subjects, therefore not qualifying as a minister. The Supreme Court rebuffed this concept. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote, “The amount of time an employee spends on particular activities is relevant in assessing that employee's status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed." The Court acknowledged that the teacher's religious duties "consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects." The Court also noted that it was unsure whether any church employees devoted all their time to religious tasks: "The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."
During the oral arguments, some of the justices seemed bothered by the facts of the case – there was no dispute the teacher suffered from a disability, and the Church had gone so far as to revoke the teacher’s ministerial commission and then fired her when she filed the suit, on the grounds that she had circumvented the channels within the church hierarchy for resolving such disputes. Interestingly, Justice Alito made a reference to 1 Corinthians 6:1-7 in the notes of his concurring opinion, a biblical text that advises believers not to go before “the ungodly for judgment.”
“She was fired simply for asking for a hearing,” Justice Anthony Kennedy said in the arguments. But the court’s unanimous opinion said the question of whether the church used religious reasons as a pretext for firing the teacher “misses the point of the ministerial exception,” which requires courts to preserve churches’ autonomy in selecting leaders.
The EEOC argued that such a broad application of the ministerial exception would encourage abuse by religious groups, such as violations of child labor laws or the hiring of undocumented immigrants. Roberts responded that churches are still subject to criminal prosecution, and that courts could consider other types of lawsuits regarding breaches of contracts, for example, “if and when they arise.” But Roberts concluded,:
“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 …. The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.” (Emphasis added).
What does this opinion mean for the average church or parochial school?
First, this is one of the first truly favorable Supreme Court opinions favoring religious freedom in decades, rendered by a unanimous court. It is the first explicit recognition of the ministerial exception by the Supreme Court, verifying an important principle in the fight for religious freedom that had appeared to be ebbing. The ability of both churches and private schools to govern themselves based on the principles of their faith and their foundational doctrines appears more firm. This would appear to at least slow down secular interferences with church governance.
It should mean fewer employment discrimination or wrongful termination cases filed against churches. While the Court refrained from providing a definition of the term "minister" for purposes of the ministerial exception, it did note several factors that made the teacher in this case a minister, and this will provide church leaders with helpful insight into the application of the exception to other church staff members. The concurring opinions indicate there is a potential for even broader application.
What about parochial schools? This would appear to be a tougher case. The facts distinguished between “contract teachers” and “called ministers.” One of the attorneys for the school even commented that the exception should not apply to most classroom teachers who teach secular subjects. But many private parochial schools require their teachers to have religious or bible-based training, often at the college level, and have them function in the same manner as the plaintiff in this case. It would seem possible to define teacher roles in terms of ministerial function, even for regular classroom teachers. If many of the factors cited by the Court which added up to confirmation of the ministerial exception in this case were also present in the daily lives of Christian School teachers – and if the teacher contract also expressly confirmed the status – it might be possible to argue for the ministerial exception for the average Christian school teacher. (Having a school affiliated with a church or denomination helps as well). A tougher hurdle, to be sure, but arguably not insurmountable.