Supreme Court’s Freedom of Religion Ruling May Create More Questions Than It Answered

Federal employment anti-discrimination laws provide a wide range of protection for employees from adverse employment actions and form a basis of a significant amount of claims and lawsuits.  However, the federal courts have routinely limited the applicability of these anti-discrimination laws when the laws interfered with the Establishment and Free Exercise Clauses of the First Amendment.  In doing so, courts developed a “ministerial exception” to discrimination claims, holding that anti-discrimination laws cannot interfere with a religious organization’s dealings with members of its clergy.  Although this exception was widely accepted in the lower federal courts, the issue had only recently come before the Supreme Court in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, where last week, the Supreme Court formally recognized the ministerial exception.  More significantly, the Court appears to have taken a broad view of who may qualify as a “minister” who would be barred from the protections of anti-discrimination laws.

 Hosanna-TaborEvangelicalLutheranChurchoperated a faith-based school, which classified its teacher employees into two categories, “called” teachers and “lay” teachers.  A “called” teacher was regarded as having been called by God toward the teaching profession, and these individuals would undertake particular theological study in order to obtain their status.  “Lay” teachers were hired only when there were not enough available “called” teachers.  Cheryl Perich was a “called” teacher for Hosanna-Tabor, and in addition to teaching secular academic courses, also taught religion classes, led students in prayer, and occasionally even presided over the school’s weekly chapel service.  When she developed narcolepsy, she was required to take a medical leave.  When she reported to the school that she would be able to return to work during the school year, the school principal informed her that a full-year replacement had already been hired and expressed concerns about her ability to return to work.  What followed cannot fully be deciphered from the Court’s opinion, but the school offered Perich an opportunity to resign, and she refused to do so.  In fact, she even appeared at the school and refused to leave until she was given documentation that she had reported to work.  Soon thereafter, Hosanna-Tabor voted to revoke Perich’s call, and she was terminated for her “insubordination and disruptive behavior” and damaging her relationship with the school by threatening legal action.”

 Perich brought an EEOC claim against Hosanna-Tabor claiming discrimination under the Americans with Disabilities Act (ADA), and the EEOC decided to file suit on Perich’s behalf against Hosanna-Tabor.  Hosanna-Tabor defended the case by invoked the ministerial exception, claiming that the First Amendment’s freedom of religion clause prevented suit because the claim concerned a dispute between the church and one of its “ministers.” The United States District Court inMichigangranted summary judgment in favor of the school, but the Sixth Circuit Court of Appeals vacated and remanded.  Although the Court of Appeals recognized the existence of a ministerial exception, it determined that Perich was not a “minister.”

 The Supreme Court, in a unanimous decision, reversed the Sixth Circuit.  It held that the ministerial exception was firmly rooted in the First Amendment to prevent government interference with a church’s selection of its ministers.  Therefore, the First Amendment bars employment discrimination suits by ministers against their church.  The Court stated that 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, but rather interferes with the internal governance of the church and its ability to select those persons who are to exemplify the church’s beliefs.

 It is not surprising that the Court formally recognized the ministerial exception.  The more significant issue ultimately concerned who was a “minister” for purposes of the exception, and how that classification would be determined.  The Court refused to adopt a bright line rule for deciding when an employee qualifies as a “minister.”  However, it did hold that in the present case, Perich clearly did qualify “given all the circumstances of her employment,” including requiring theological training, a formal commissioning process and a recognition of Perich as a minister.  Although the scope of Perich’s secular duties were relevant to the determination, the factor is not to be considered in isolation.  What is significant about the Court’s determination is that Perich’s primary responsibilities as a “called” teacher with Hosanna-Tabor were overwhelmingly secular.  In fact, the church hired both “called” teachers and “lay” teachers, which indicates that the church itself did not believe that Perich’s religious qualifications were necessary for her to act as a teacher at the school.  One could argue, as the Sixth Circuit did, that Perich’s status as a commissioned minister was secondary to her job, and thus was less significant than her abilities as a teacher.  Further, the alleged discrimination involved, disability, seemingly has no bearing on the church’s religious doctrine.  Perich would have argued that the church’s true motivation for terminating her was due to her disability and the threat of asserting her rights under the ADA, and that the church’s stated reasons were merely a subterfuge for the real reason.  Presumably, the church would not have argued that it is against its doctrine to retain a minister who had a disability.  The Supreme Court’s ruling, however, seems to allow a religious organization to fire anyone falling within the ministerial exception for any reason, regardless of whether the reason relates to a non-secular aspect of the religion.  Although the decision firmly recognizes the existence of the ministerial exception, it can be expected that many more lawsuits arise in the future to determine who qualifies under the exception.  It will be interesting to see how the various courts go about grappling with this issue, given that the Supreme Court opted not to establish a formal protocol.