"Hosanna": The Supreme Court Strongly Praises the Constitutional Right to Select Ministers?
October 23, 2012

Religious institutions cannot function without the freedom to engage ministers as they wish. Even so, they routinely face employment lawsuits when they terminate an employee. This year in a closely watched case, the United States Supreme Court unanimously affirmed the freedom of religious institutions to decide who ministers for them. The decision was Hosanna-Tabor Evangelical Lutheran Church & School v. E.E.O.C. (U.S. 2012) and the legal principle is known as the "ministerial exception." It is described as an "exception" because in certain circumstances religious institutions are not required to follow state and federal civil rights statutes for their ministry employees.

Hosanna-Tabor involved a dispute between a terminated employee, Cheryl Perich, and a small Lutheran church with a school. Ms. Perich was a "called" teacher. This meant that under this church's teachings she had to have certain theological training. The lay teachers the school employed did not have such training. Ms. Perich, a fourth grade teacher, taught a variety of subjects, including 45 minutes on religion.

After a lengthy medical leave, Ms. Perich told the school she planned to return from disability leave. The school informed her it had employed a teacher to fill her position for the rest of the school year. She nonetheless returned and threatened to sue for discrimination based on an alleged disability. The church terminated Ms. Perich for insubordination, specifically for threatening litigation contrary to the church's theological commitment to internal dispute resolution. The Equal Employment Opportunity Commission sued the church claiming she was fired in retaliation for threatening a civil rights claim. The church moved to dismiss, arguing the ministerial exception barred Ms. Perich's claims.

The case was a source of great concern for the religious community because the Department of Justice (DOJ) took the position that the religion clauses of the First Amendment did not require the ministerial exception. The DOJ argued, instead, that churches had only the same limited rights as labor unions and social clubs under the freedom of association. In other words, the administration sought to eliminate entirely this First Amendment religious freedom.

The Supreme Court rejected the government's argument. Chief Justice John Roberts called the administration's position "untenable," and effectively chastised what he perceived as its hostility toward religion, noting that such a view: "... is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers."

The Chief Justice explained that when civil rights laws require "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. Such action interferes with the internal governance of the church."
The court then found that the ministerial exception was rooted in both the Free Exercise and Establishment Clauses and that it barred Ms. Perich's claims.

Hosanna-Tabor is worth study both for its ringing endorsement of the ministerial exception as a subset of the church autonomy doctrine and for its guidance on how lower courts should apply this doctrine. Religious leaders need to understand that the protection is not automatic but depends in part on the church's own practices. Here are five implications for how the ministerial exception will likely be applied after Hosanna-Tabor:

  1. Religious employers are not required to provide a "religious reason" for a termination to invoke the ministerial exception. The Court reasoned that to probe into the basis of termination could lead to entanglement and secular courts second- guessing d1Urches. (Even so, we believe that pre-termination identification of a religious reason for the termination will be beneficial to ministry employers seeking to invoke the ministerial exception.)  
  2. Plaintiff employees cannot avoid the ministerial exception by seeking only monetary damages instead of reinstatement. The Court concluded that even a demand for monetary damages alone may "operate as a penalty on the Church for terminating an unwanted minister." The principle that damages alone can interfere with a church's religious autonomy will likely bar a broad range of claims against churches beyond those defined by civil rights laws.
  3. The Supreme Court specifically declined to say at this time whether the ministerial exception barred non-statutory claims like breach of contract and torts like defamation, wrongful discharge in violation of public policy, invasion of privacy, and others. There is strong precedent that the ministerial exception does, in fact, bar such claims. See Jones v. Crestview Southern Baptist Church (Colo. App. 2008). While the majority left this issue open, the logic of Hosanna-Tabor points toward expansion of the ministerial exception. This proved to be so in the St. John Vianney Seminary case reported elsewhere in this issue.  
  4. The Supreme Court found, in a footnote, the ministerial exception operates as an affirmative defense, not a jurisdictional ("Hosanna" continued from page 10} bar. This means, first, that the church has the burden of proving the position in question constitutes ministry and, second, that the church must raise the defense at the outset or risk waiving it. One state court has already applied this latter point to preclude a church from raising the defense late in the litigation. See ?Petschonek v. Catholic Diocese of Memphis (Tenn. App. 2012).
  5. The Supreme Court placed a premium on the organizational role and function of the employee in determining whether she served a ministerial function. If the employee's work does not constitute ministry, ministerial exception will not apply. The practical outcome for religious organizations is that the job description, "welcome aboard" letters, employment contracts, and other documents should carefully describe why and how the position constitutes ministry.

Hosanna-Tabor is a strong affirmation that the First Amendment guarantees that churches alone shall decide who will minister in their name, and that churches alone will "choos[e] who will preach their beliefs, teach their faith, and carry out their mission."?