Religious Employment Litigation Under the First Amendment

565 U.S. (2012)

By Karen A. Kalzer

Patterson Buchanan Fobes Leitch and Kalzer, Inc., PS,Seattle, WA

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court recognized the existence of a “ministerial exception” under the First Amendment of the United States Constitution, offering both significant protection for employment decisions of religious entities but also leaving room for individual court discretion in applying this defense on the merits.

Facts

A Lutheran Congregation Fires a School Teacher for Insubordination After a Dispute Over Her Reported Disability

Hosanna-Tabor Evangelical Lutheran School hired Cheryl Perich to teach kindergarten as a contract teacher in 1999. The next year, she completed the required theological and religious studies to qualify as a “called” teacher. Called teachers are regarded by the congregation as having received a vocational call from God and carry the title of “Minister of Religion, Commissioned.” Such a teacher must affirmatively accept the “call” of the congregation and is hired in preference to lay, or secular, teachers.

Perich taught math, language arts, social studies, science, gym, art, and music, using non-religious textbooks. Non-called, lay teachers at the school similarly taught these subjects. However, four days a week, for thirty minutes, Perich taught a religion class, and she attended chapel with her class once a week for thirty minutes. She also led her class in prayer three times a day, andher class engaged in a brief devotional activity each day. Twice a year, she took her turn — with all teachers, lay or “called” — in leading chapel services.

In June of 2004, Perich was diagnosed with narcolepsy, and took a leave for the following school year. In January of 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 had already been hired. Perich and school leaders argued, and she threatened to sue, claiming the school would be charged with violating the Americans with Disabilities Act. Shortly thereafter the congregation rescinded her call and she was fired due to her threat to sue, which violated a Lutheran religious tenet that members of the faith should resolve internally their disagreements.

Perich filed charges with EEOC, claiming retaliation under the ADA. A district court ruled that her claim was barred by the “ministerial exception” to federal workplace discrimination law. The Sixth Circuit Court, consistent with all other federal courts, recognized the existence of the exception but 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.

The Supreme Court heard argument on October 5, 2011, and Justice Roberts delivered the unanimous opinion of the Court on January 11, 2011, reversing the Sixth Circuit and definitively recognizing that the state cannot impose an unwanted minister on a religious body.

Discussion: A Broad Protection with an Open Path for Judicial Discretion

The Supreme Court ruled that the First Amendment indeed requires a “ministerial exception” whereby religious institutions are protected from civil interference in decisions regarding the retention of their “ministers.” The doctrine of the ministerial exception is one that had been accepted by every lower court, but the Supreme Court had not addressed the question until now.

The Court answered questions implicit and explicit regarding the application of the First Amendment in general and specifically about the ministerial exception, while leaving an open path for the discretion, and thus disagreement, of lower courts for years to come.

Do the Religion Clauses of the First Amendment continue to be relevant in the modern secular world?

The Court unanimously and emphatically affirmed that the religious clauses of the First Amendment give “special solicitude to the rights of religious organizations.” The EEOC and others had questioned the applicability of the religion clauses once a religious entity “leaves the cloister,” or in other words, engages in the secular world at all. Under such circumstances, the EEOC argued, any protection for a “ministerial exception” must be found under the Freedom of Association Clause. If the Court had bitten on this theory, even if only a minority had given it credence, a series of attacks on the First Amendment rights of religious organizations would undoubtedly have followed.

However, the unanimous rejection of this position, as well as the lengthy recitation of the history of religious freedom, can offer comfort to all religious entities that the Supreme Court continues to view religious freedom as a key and central aspect of American jurisprudence.

Can a valid and neutral law of general application regulate or impact internal church decisions?

No. In 1992, the Court held in Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872, that enforcement of valid and neutral laws of general application does not violate the First Amendment even where they interfere with the exercise of a religious belief or practice. In Hosanna-Tabor, the Court established that there is a distinction between an internal church decision, which is protected from civil regulation, and outwardly physical conduct, which is not.

To what type of decisions does the ministerial exception apply?

The Court was careful to state that its decision was limited to internal decisions regarding disputes between the religious entity and its “ministers.” The Court chose not to address other potential employment issues such as breach of contract claims, or tortious claims such as negligent supervision of clergy.

Nonetheless, the Court did point out that such protection is not limited to reinstatement but to suits for money damages as well, recognizing that a monetary award would operate as a penalty for the termination of an unwanted minister.

How will lower courts determine who is a minister?

One of the thorniest aspects of the ministerial exception has been how to determine who is a “minister.” A “minister” is not restricted to those who are ordained or whose functions are strictly limited to religious duties, but by what criteria is the role or function of “minister” to be judged? Again, some guidance is provided, but no “rigid formula,” leaving lower courts a path to use discretion, and of course, to disagree.

Initially, the ministerial exception is not a jurisdictional bar, but an affirmative defense to a cognizable claim whereby the defendant religious entity must establish that the person in question meets the criteria for a minister. If so, the inquiry is over.

How deep can such inquiry go before the court itself becomes entangled in the type of inquiry the doctrine seeks to avoid?

In Justice Thomas’ concurrence, he argues that evidence of a “sincere belief” on the part of the internal church entity is sufficient, but the rest of the Court would not go that far. It is the progeny of Hosanna-Tabor that will test out this question and its contours.

What factors did the Court rely on in determining Perich was a minister?

The Court looked to four sets of circumstances in determining that Perich was a minister. First, the Court looked to Perich’s formal title as a “Minister of Religion, Commissioned,” a title conferred after specific training, education, and other requirements. Second, the Court looked to the substance of that title and its function within the Lutheran congregation. Third, the Court looked to Perich’s own use of the title, holding herself out as a minister, and availing herself of tax benefits associated with such a position. Finally, the Court relied on her position in conveying the church’s message as part of the religious education duties she fulfilled. The Court noted that “as a source of religious instruction. Perich performed an important role in transmitting Lutheran faith to the next generation.” It is this factor that is most likely to be tested out in lower courts as all teachers in religious schools, to some degree, play an important role in transmitting faith to the next generation.

Just as important, the Supreme Court specifically rejected the reasoning of the Sixth Circuit in finding that Perich was not a minister. The Court rejected the Sixth Circuit’s failure to consider Perich’s title and its functions. The Court rejected the fact that lay teachers also performed Perich’s functions as being dispositive; what was more important was the fact that the Church used lay employees only in the absence of called teachers. Finally, the Court stated that the Sixth Circuit placed too much emphasis on the secular duties of Perich when the issue is really the importance and centrality of her religious functions.

Certainly the nagging questions of what comprises a “minister” and the level of inquiry and evidentiary proof required to establish that will continue to invite ongoing litigation for the foreseeable future; however, religious entities can be reassured that the protection of their internal processes has not been entirely abandoned in our increasingly secular world.