Earlier this month, the US Supreme Court decided a case filed by the US Equal Employment Opportunity Commission and a teacher against a church-operated grade school in Michigan. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, No. 10-553 (January 11, 2012). (The Slip Opinion, the official pre-publication version of the Court’s decision, is available on-line here.) The Supreme Court’s 9-0 decision in favor of the First Amendment is a noteworthy setback to the anti-religious campaign waged by the Obama Administration in the law.
Hosanna-Tabor is a congregation of the Lutheran Church-Missouri Synod that “called” Ms Perich to teach in its school. To be “called,” a teacher had to complete eight college-level courses in aspects of Lutheran theology and obtain the approval of the local District of the LCMS. After that training and approval, once a congregation “called” the teacher, the teacher was employed indefinitely and was commissioned as a minister in the church. Duties as a teacher included teaching religion, leading a prayer service in class, and occasionally organizing larger religious services for the entire school. The school also employed “lay” teachers, who were not considered ministers and had year-to-year contracts.
Ms Perich developed narcolepsy in the summer of 2004 and she was unable to work that fall. The school tried to combine her fourth grade with another grade, but that did not work so well over time. Other arrangements led to complaints from students’ parents. The small school finally gave up trying to make do and hired another teacher to take Ms Perich’s place, apparently without telling her in advance.
When she obtained medical clearance to come back to work in February, she found out that she did not have a job. Meetings and communications over a period of a few weeks failed to resolve matters. The church formally terminated Ms Perich’s call in April 2005. She filed a complaint with the US Equal Employment Opportunity Commission (EEOC) for violation of the Americans with Disabilities Act (ADA).
In September, 2007, the EEOC filed a lawsuit in US District Court to rectify the alleged violation of the ADA. The school responded by asserting that the First Amendment to the US Constitution prevented the enforcement of the ADA in this situation, because Ms Perich was a ministerial employee, and churches are free from governmental second-guessing in regard to the employment of ministers.
The ministerial exception
In part, the First Amendment provides, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Before this case, the Supreme Court had never ruled on the scope of the First Amendment in anti-discrimination employment cases. (Slip Opinion, p. 13.) Thus, the prevailing law on the subject had been made by the federal trial courts and courts of appeals. These lower courts had by and large reached the conclusion that the First Amendment would be violated if the choice of a church’s ministers were not entirely in the church’s own control. Ministers carry out the church’s mission in an essential way that other employees, such as the maintenance staff or the rector’s office assistant, do not. To mean anything at all, the First Amendment has to shield churches from the government’s second-guessing about who and how and when and for how long ministers will serve; otherwise, the government will be in control of the religious aspects of church life. Such control, the First Amendment is supposed to prevent.
This principle, in shorthand known as “ministerial exception,” was widely adopted by lower courts. But then the next question was, who qualifies as a “minister”? The courts usually held that if a person’s “primary” duties were part and parcel of the church’s religious tasks, such as pastoral counseling, leading worship services, or teaching doctrine, then the person would be considered a minister. If the ministerial aspects of the person’s job were ancillary to his or her main functions, then the ministerial exception would not apply. Needless to say, there can be honest differences of opinion in close cases. This case provided an illustration. The church won at trial but lost on appeal.
In the lower courts
The EEOC’s briefs in the federal trial court (US District Court for the Eastern District of Michigan) and at the first level of appeal (US Court of Appeals for the Sixth Circuit) are publicly available. They show that at trial and in the first appeal, the EEOC approached the case as just another dispute over the primary work of a church employee. The EEOC stressed that only 45 minutes of Ms Perich’s typical seven-hour teaching day were devoted to prayer or to worship services, while the remainder of the day was devoted to ordinary school subjects using textbooks indistinguishable from those of the local public schools. Ms Perich testified in deposition that she rarely integrated religious teaching into secular subjects. Although her training, her hiring, and her title indicated that she was a “minister” in the Lutheran Church-Missouri Synod, the EEOC argued that her actual functions in her job were not primarily those of a minister. It made no request to change the way the case law defined the ministerial exception.
After losing in the Sixth Circuit, the school applied to the Supreme Court for review, arguing that the scope of the ministerial exception was too narrowly applied in the lower courts to pass muster under the First Amendment. (The Supreme Court briefs of the parties are available from the American Bar Association here.) The school argued that any person who performs ministerial duties, whether or not they are the person’s primary duties, should be considered a minister, and the church’s decisions on employment of such persons should be shielded from governmental interference.. (Brief for Petitioner, p. 2.)
Attacking the ministerial exception
The case having reached the highest court in the land, the EEOC’s side was captained by the Solicitor General of the Department of Justice, a Presidential appointee charged with presenting the Administration’s position in the Supreme Court. The Administration’s brief, filed in August 2011, significantly departed from the approach that was taken in the lower courts. The Administration broadly attacked the validity of the ministerial exception, and if the Court would not go so far, the Administration asked the Court to construe the exception so narrowly that it would very rarely apply. In a unanimous opinion, the Supreme Court decisively rejected all of the Administration’s arguments.
First, the Administration argued that the ministerial exception should not apply in employment discrimination cases at all, because the EEOC was merely enforcing a neutral law of general application (the Americans with Disability Act) that had only incidental effects on the church. The Administration cited as precedent a case in which the Supreme Court found the First Amendment did not bar prosecution of an individual for illegally smoking peyote when the defendant claimed it was required by his religious beliefs. (Brief of EEOC, pp. 21-22.)
The Court swatted away the argument concerning enforcement of a neutral law with the observation that interfering with the internal operations of a church was a far different matter than restraining a private individual’s ingestion of illegal substances. (Slip Opinion, p. 15.)
Another argument focused on reinstatement. The EEOC originally sought, among other things, reinstatement of Ms Perich to a teaching position. However, by the time the case reached the Supreme Court, she had waived that request. She sought monetary relief, particularly back pay, in its place. The Administration argued that monetary relief would not violate the Constitution, in that no interference with church governance would be involved. (Brief of EEOC, pp. 34-35.)
The Court ruled that to the contrary, monetary relief would unconstitutionally interfere with church governance, because sanctions for conduct that the government found wanting would still represent a means of governmental control of churches that the First Amendment would not allow. (Slip Opinion, p. 19.)
The Administration had more arguments. It asserted that the courts should not dismiss these cases right at the outset, because the churches may assert religious reasons for firing people that could just be pretexts. (Brief of EEOC, pp. 36-39.) The Court said the Administration missed the point. “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. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical,’ [citation omitted]—is the church’s alone.” (Slip Opinion, p. 20.)
In its final effort to maximize the ability of the government to regulate religious organizations, the Administration argued that if the Supreme Court was going to allow courts to dismiss EEOC actions at the outset by determining who is a minister, then the courts should limit the category only “to those employees who perform exclusively religious functions.” (Brief of EEOC, p. 51.)
The Court found the Administration’s position to be extreme and unacceptable. (Slip Opinion, p. 19.) “Indeed, we are unsure whether any such employees exist.” Religious ministers often have a mix of duties that include such secular ones as managing finances and personnel, and these duties would disqualify them from the exception under the Administration’s view.
The Court did not lay down a bright line of deference to churches in respect to who should be considered a minister. “It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.” (Slip Opinion, pp. 15-16.) This approach offers strong support in future cases for doing away with the “primary duties” analysis in favor of an examination of all circumstances of the case that relate to performing the church’s mission. It thus discredits the Court of Appeals’ approach of comparing time spent on religious functions to time spent on secular functions. As a result, churches should find it easier to prove that an employee is a ministerial employee.
It is likely that the extreme positions taken by the Obama Administration in this case led to the 9-0 decision by the Court. Whether this decision will be taken as a wake-up call by the President and the Department of Justice in regard to religious freedoms remains to be seen.
James S. Cole graduated from Harvard Law School in 1978 and practices law in St. Louis, Missouri.