In a unanimous decision, the Supreme Court held on Wednesday that a “ministerial exception” barred a parochial school teacher from pursuing an employment discrimination claim against the church that runs the school. In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the church argued that the teacher, Cheryl Perich, was a minister, and thus that the decision to fire her was an internal church matter that should be free from judicial oversight. The court agreed with the church, and in doing so has greatly limited the ability of a “minister” to sue his or her religious organization for any form of employment discrimination.
Chief Justice Roberts, writing for the court, recognized and applied a “ministerial exception” (embraced by many lower courts, but not formally recognized by the Supreme Court until this case): if a church employee is a minister, he or she cannot pursue an employment discrimination claim in court, because such a claim would result in a judge or jury infringing on that religious group’s right under the Free Exercise Clause of the First Amendment to decide which ministers should and should not be retained. The opinion then addressed the question of what (legally) constitutes a “minister.” On this issue, Roberts greatly limited the judiciary’s role in determining whether or not a church employee is a “minister.” As Harvard CR-CL Law Review described back in October, the plaintiff in this case had received the formal title of “Minister of Religion, Commissioned” after completing the requirements that entitled her to receive the parochial school’s equivalent of tenure. The requirements included eight classes of theological study. Perich then taught predominantly secular subjects, but did also teach one daily religion class and led students in prayer. The Sixth Circuit applied a primary duties test—a test used by several federal circuits—to conclude that her “primary duties” were secular. As a result, the Sixth Circuit held that Perich could pursue her employment discrimination claim, because she was not a minister for the purpose of invoking the ministerial exception, under the parameters provided by the primary duties test.
Chief Justice Roberts rejected the “primary duties” test and instead supported a broader exception. Roberts first stated the conclusion, holding that “it was sufficient to conclude” that the exception covered Perich. Importantly, the court would not “adopt a rigid formula for deciding when an employee qualifies as a minister.” Instead, Roberts pointed to several factors that persuaded the court to accept the church’s claim that Perich was a minister: the formal title given to Perich by the church, the religion-based efforts involved in receiving that title (her classwork), Perich’s own use of the title (she had claimed tax breaks given only to ministers), and the important religious functions she performed for the church (teaching its tenets). Furthermore, the opinion refused to consider whether or not there was merit to Perich’s claim that the church’s religious reason for firing her was pretextual: “that suggestion misses the point of the claim. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason.” Instead, any employment discrimination lawsuit must be dismissed when the church involved successfully demonstrates that the claim against it was brought by or on behalf of a minister of that church.
Arguably, the court has set forth a strong precedent. This decision unambiguously rejects the “primary duties” test used by several circuits, and appears to close the door on all employment discrimination claims, when the plaintiff is a “minister.” Still, two concurring opinions in Hosanna-Tabor pointed out that certain elements of the court’s role in determining whether a ministerial exception applies are still up for debate. Justice Clarence Thomas wrote that the Chief Justice’s opinion did not provide enough deference to religious organizations, stating that “judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the ‘mainstream’ or unpalatable to some.” Justice Samuel Alito, joined by Justice Elena Kagan, wrote separately to clarify his understanding of the term “minister.” Justice Alito pointed out that some religions do not even have a structure where any members of the faith perform functions similar to those performed by a “minister.” Thus, Alito argued “it would be a mistake if the term ‘minister’ or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one. Instead, courts should focus on the function performed by persons who work for religious bodies.” Alito’s resulting interpretation of this case: the ministerial exception applied to Perich because she engaged in “important religious functions” for the church.
Attempting to fully delineate the circumstances in which a court could overrule a church’s claim that an employee is a “minister,” in a fashion consistent with the strong First Amendment protection that Chief Justice Roberts articulated in this case, could have resulted in a controversial and messy standard. The opinion avoids the problems associated with applying the exception as broadly as Thomas argues for, or as specifically as Alito argues for. Instead, lower courts can continue to carve out areas in which exceptional circumstances may compel the conclusion that the ministerial exception need not apply, although Roberts did his best to limit the scope of such exceptions. But by refusing to precisely define “ministerial exception,” the Supreme Court will have the benefit of future case law to help it flesh out the ramifications of Wednesday’s holding, if the court decides to revisit the issue in the future. Thus, Roberts made an effective decision in concluding, “[T]here will be time enough to address the applicability of the [ministerial] exception to other circumstances if and when they arise.”
That being said, this opinion dramatically changes the scope of protection that was provided to religious employees under the “primary duties” test. It allows churches to discriminate against a considerably larger subset of church employees in their hiring and firing decisions. Religious groups will shoulder a correspondingly greater burden of setting and applying internal policies that are capable of preventing such discrimination, because “ministers” now receive no protection under civil rights or other discrimination statutes. Justice Sotomayor asked a difficult question at oral arguments: whether a church could be protected against a lawsuit by invoking the ministerial exception, when an employee claims that the church was discriminating by retaliating against that employee for reporting sexual abuse. Through the holding in Hosanna-Tabor, it appears the court decided that even under the situation described by Justice Sotomayor, when a fired employee is subject to the ministerial exception, First Amendment considerations outweigh the countervailing public policy concerns involved in dealing with the potential unfairness. The 9-0 holding suggests that the court will not anytime soon be changing its decision to give substantial discretion to religious groups in determining who is subject to the ministerial exception.