“[T]his is tough and I’m stuck on this.”  Justice Breyer expressed the prevailing theme of the October 5th oral arguments before the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.  The transcript of the oral arguments is available here and you can listen to the arguments here.  At issue is whether the rights of a parochial school teacher were violated under the Americans with Disabilities Act (ADA) when she was fired by her Lutheran-affiliated school for insubordination.  That teacher, Cheryl Perich, had gone on disability leave for a sudden, unexpected illness.  She was eventually diagnosed as narcoleptic and told she would soon be fully functional at school with the use of medication.  But when she attempted to return, school officials told her that she should resign—citing the danger to student safety posed by her condition—and the school did not change its position even after Perich repeatedly explained and documented that her doctor had reaffirmed her good health.

After Perich informed the school that she would assert her legal rights against discrimination if the two sides were unable to reach a compromise, Hosanna-Tabor fired her for insubordination.  Perich complained to the EEOC who brought this lawsuit on her behalf, alleging that the school retaliated against her in violation of the ADA.  Hosanna-Tabor does not dispute that they fired Perich because she threatened to sue.  Instead, they argue that applying ADA protections to this situation would infringe upon the parochial school’s religious freedom under the First Amendment, because Lutheran doctrine states that disputes between church ministers must be resolved internally.  Perich taught predominantly non-religious subjects and thus her activities devoted to religion—teaching one religion class and leading short prayer sessions—took up only forty-five minutes of each seven-hour school day.  However, in order to become a tenured teacher, Perich had been required to complete colloquy classes on various aspects of the Christian faith.  After completing these classes, Perich and all other tenured teachers in the Lutheran school district had received the title of “commissioned minister.”


The ADA is subject to a ministerial exception, which protects the First Amendment-derived rights of religious organizations to make employment decisions in accordance with their religious beliefs.  The scope of this exception is the tricky subject of this case.  At oral argument, the parties argued for very different standards.  Representing Hosanna-Tabor was Professor Douglas Laycock, an expert on religious liberty law at the University of Virginia.  Professor Laycock first argued that a discharge claim by a minister should never be heard in court, based upon a central First Amendment principle: the government must stay out of deciding who should be a religious official.  Justice Sotomayor quickly pointed out a troubling aspect of his proposed approach:

“Now, we know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and I believe children. Regardless of whether it’s a religious belief or not, doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious . . . ?  And once we say that’s unacceptable, can and why shouldn’t we protect the people who are doing what the law requires, i.e. reporting it?  Under your theory, nothing survives if the individual is a minister, no . . . private claim.”

Laycock then cautiously acknowledged that a limited carve-out to the exception could be appropriate, but only if the government interest involved was something other than protecting ministers from discrimination (such as protecting the aforementioned exploited child), and then only if such an interest was “sufficiently compelling to justify interfering” in the church-minister relationship.  Justices Sotomayor and Kennedy asked whether a claim could proceed in pretext cases, cases where a plaintiff would allege both discrimination and that the church did not have a religion-related reason for the discriminatory act.  Laycock rejected this approach on the grounds that judges would have to interpret religious doctrine to determine whether or not a church interest was actually involved.  Justice Scalia made his position on this issue quite clear, interrupting Laycock at one point to say “I think your point is that it’s none of the business of the government to decide what the substantial interest of the church is.”

Chief Justice Roberts then pressed Laycock on what defines a religious minister for purposes of the ministerial exception.  One of the few undisputed conclusions of the arguments was that it is the court’s job to determine whether Perich was actually a minister.  The dispute is over what that definition should be.  Laycock eventually summarized his definition: “A minister is a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously, including teaching of the faith.”  However, the justices were not convinced by the broad “important religious functions” category, which would encompass any employee who teaches any amount of religion.  Responding to Laycock, Justice Kennedy strongly believed that whether Perich satisfied the legal definition of minister was not clear: “I suppose when we do that we say, how many secular functions do you perform?  And that’s what this case is.” The Sixth Circuit decision that the Supreme Court is reviewing is at odds with Laycock’s argument.  They applied a “primary duties” test, under which they held that Perich was not a minister because her duties were largely secular.  The justices’ tough questioning on this issue made clear that they consider the legal definition of a religious minister to be a difficult but essential task to delineating the boundaries of the ministerial exception.

On behalf of the EEOC, United States Assistant Solicitor General Leondra Kruger took the position that a completely different test should govern this case: a general balancing of interests test.  Kruger argued that the First Amendment interest in question should be balanced against other constitutional interests to determine whether anti-discrimination law should apply.  The justices were skeptical for several reasons, but appeared most concerned that Kruger’s proposed test would force a court to evaluate the relative importance of religious doctrines.  Justice Breyer told Kruger that it was “obvious” that courts could not force the Catholic Church to hire female priests based on sex discrimination law, and asked Kruger if this exemption from discrimination law suggested that the Lutheran doctrine of internal dispute resolution was relatively less important to practicing the Lutheran faith.  Kruger responded that the two situations do not suggest that the Catholic doctrine was relatively more important, but that “the government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.”

Even solely in terms of evaluating the governmental interests involved, Justice Breyer was not comfortable with Kruger’s response: “You are saying that going to court is a more fundamental interest than a woman obtaining the job that she wants, which happens in this case to be a Catholic priest . . . . You may be right, but it isn’t obvious to me that the one is the more important than the other.”


The court’s questions to Kruger suggest they will not adopt her general balancing test, because of the potential damage to important First Amendment values.  Beyond that, the oral arguments demonstrated that the justices are having a difficult time delineating the boundaries of the ministerial exception.  Professor Laycock clearly sketches out a broad ministerial exception that would prevent judges from interpreting religious doctrines where a church’s interpretation could reasonably vary from that of a judge, but his acknowledgement of exceptions provides support for the government’s position: at some level, to determine whether interference in the church-minister relationship is justified, courts must evaluate religious doctrine.