The Supreme Court and the “Ministerial Exception”: Protecting Freedom of Religion? or Permitting the Disguise of Employee Discrimination?

By Anjalee Daryani, Albany Government Law Review

On January 11, 2012, the Supreme Court issued a landmark decision concerning religious liberty.  The Court recognized for the first time a “ministerial exception,” precluding employment discrimination claims in the context of “the employment relationship between a religious institution and its ministers.”[1]  The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, was instituted on behalf of a teacher who was employed by a Lutheran school and had been fired for threatening to file a lawsuit for the church’s violation of the Americans with Disabilities Act (ADA).[2]  The Supreme Court acknowledged that the interference by states into a religious groups’ employment decision, would be an intrusion on the internal governance of a religious organization, and as a result would be infringing upon their rights under the Free Exercise Clause of the First Amendment.[3]

In Hosanna-Tabor, respondent Cheryl Perich was employed by petitioner, Hosanna-Tabor Evangelical Lutheran School, as a teacher and commissioned minister.[4]  Although designated as a minister, her duties remained the same as a “lay” teacher at the school.[5]  In June of 2004, during the course of her employment, Perich developed narcolepsy and being unable to work, began the school year on disability leave.[6]  In January of 2005, Perich informed the principle of the school that she would be able to return to work in February, however the principle notified Perich that the school board had already contracted another teacher to replace her.[7]  Subsequently, Perich was terminated from her employment as a response to her threat to take legal action against the church for unlawful discrimination.[8]  Perich then filed a complaint with the Equal Employment Opportunity Commission (EEOC) asserting that she had been fired because of her disability (narcolepsy), and as a result her employer was in violation of the Americans with Disabilities Act (ADA).[9]  In September, 2005 the EEOC filed suit against the church in District Court on behalf of Perich seeking reinstatement of her former position, as well as backpay and other monetary damages.[10]  In response, Hosanna-Tabor moved for summary judgment claiming that the suit was barred by the ministerial exception because the case concerned an employment relationship within the religious organization.[11]  Specifically, the church asserted that Perich was terminated because she had violated the church’s tenets by not only threatening to sue but also filing a complaint with the EEOC, instead of using the church’s internal dispute resolution processes to re-establish her position as a commissioned minster.[12]  The District Court held that the suit was barred by the ministerial exception and found in favor of the church.[13]  However the Court of Appeals for the Sixth Circuit vacated and remanded finding that although this case would ordinarily be barred because it concerned the employment relationship of a church teacher, Perich did not qualify as a “minister” under the exception according to her duties.[14]

Although many lower courts have upheld and acknowledged the ministerial exception, this is the first time that the Supreme Court has decided on the issue of whether discrimination suits against a religious organization in regards to a teacher-minister’s employment should be barred by the exception.  The Supreme Court’s affirmation of the ministerial exception is not only “significant because it clearly extend[s] this shield to tens of thousands of parochial schools [around] the country,”[15] but also because it “‘protects religious liberty by forbidding governments from second-guessing religious communities’ decisions about who should be their teachers, leaders and ministers.’”[16]  However, the Supreme Court’s unanimous holding to bar undue government interference into the internal functions of a religious organization, has raised some concerns in regards the impact of this precedent on future civil suits.

The ministerial exception is rooted within the First Amendment and is a construct of the common law to ensure the protection of religious organizations’ and their rights to the freedom of religion.[17]  Traditionally, the exception has been held by courts to exempt religious organizations from antidiscrimination suits brought by their employees based on the notion that religious organizations should not have to make “employment decisions that might contradict the tenets of their faith.”[18]  More specifically, the exception provides that religious organizations have the right to decide who will perform the spiritual functions of their organization.  “For example, the ministerial exception would prevent antidiscrimination laws from forcing the Catholic Church to hire female priests.”[19]

The Supreme Court’s interpretation of the ministerial exception in Hosanna-Tabor demonstrates that are still issues which are unclear such as the rights of employees whose duties are purely secular to sue a religious employer for discrimination.  The opinion itself does not provide a definitive answer as to the types of duties that would invoke the exception but the Court implied that “any [person] connected to the religious mission of the institution, even with minimal related duties, would be covered.”[20]  In concurring with the decision, Justice Roberts stated that “when a person who has ministerial duties sues her church for bias, courts must throw out the case.”[21]  He further added that, in this case, although Perich only spent forty-five minutes of her day on religious duties (seemingly a minimal span of time), her extensive religious training and title given by the church rendered her a “minister” for the purposes of this exception.[22]  However, although Perich was a “minister” by title, her duties were clearly the same as the lay teachers in the school, and thus the application of the ministerial exception in this case has undoubtedly caused some apprehension in determining exactly what type of employee would be affected in their ability to sue.  Some legal analysts suggest that the ruling interprets the ministerial exception to apply only to those teachers who have substantial religious responsibilities, and therefore confers the ability to sue solely to those who teach purely secular subjects.[23]  However, this interpretation of the Supreme Court’s decision would visibly contradict the ruling based on the facts of Hosanna-Tabor.

Further, the Supreme Court’s decision does not address the issue of the term “minister” or the fact that not every religion has such a position in its hierarchy of religious employees.  However, Justices Samuel A. Alito Jr. and Elena Kagan discussed this in their concurring opinion.  They interpreted the ministerial exception to “extend equally to ‘Catholics, Jews, Muslims, Hindus or Buddhists’” even though these religions may not use the term “minister.”[24]  Justice Alito further went on to state that “the exception ‘should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.’”[25]

Lastly and most importantly, the Supreme Court’s decision leaves unanswered the issue of the scope of liability of religious organizations.  This includes the “religious employer[’s] liability in disputes over wage claims, sexual harassment and other personal injuries.”[26]  In coming to their decision, it seems reasonable that the Court struggled in finding a balance between avoiding governmental interference in the internal affairs of a religious institution and protecting employees and their rights against discriminatory conduct.[27]  During the arguments in October, Justice Sotomayor brought up the issue of protecting teachers who may bring civil suits against religious employers for being fired because of their attempts to try and report sexual abuse.[28]  Sotomayor’s concerns were addressed by the Hosanna-Tabor’s counsel, Douglas Laycock in stating that “there were other ways to ensure that abuses were reported . . . ‘a discharge claim by a minister presents the question [of] why she was discharged, and the court should stay out of that.’”[29]  Laycock further added that in a situation in which a child’s safety was at stake, it would be a difficult case but that the church teacher may not necessarily be barred from suing.[30]

Although the Supreme Court delved into the future consequences of upholding the ministerial exception, the holding in Hosanna-Tabor still leaves lingering questions concerning employee protection.  Some religious leaders have reflected on this decision as potentially having “pernicious consequences, by, for instance, barring suits from pastors who are sexually harassed”[31] and permitting blatant discrimination.  Conversely, some law professors have interpreted this ruling to be much narrower than what it seems in that it applies only to discrimination suits, and therefore prevents religious institutions from complete autonomy in hiring and firing.[32]

Despite the countless opinions on the outcome of this case, the ruling in Hosanna-Tabor has noticeably had a significant impact on the religious and legal communities.  For religious organizations, the acknowledgement of the ministerial exception by the Supreme Court seems to be a major victory in upholding the “historical and constitutional importance”[33] of having the right to freely choose their own ministers without government interference.  Such a stance is plausible being that the analysis of determining whether a religious employee is a minister ultimately ends up delving into the religious doctrines of the organization.[34]  Nonetheless, in terms of the future of the ministerial exception and the protection of teacher-ministers, Justice Roberts stated that he believes “‘[t]here will be time enough to address the applicability of the exception to other circumstances . . . if and when they arise.’”[35]


[1] Hosanna-Tabor Evangelical Lutheran Church and Sch. v. Equal Emp’t Opportunity Comm’n., 132 S. Ct. 694, 705 (2012).

[2] Id. at 699-701.

[3] Id. at 702.

[4] Id. at 700.

[5] Id.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 701.

[10] Id.

[11] Id.

[12] Id.

[13] Id.

[14] Id.; See also, Joan Biskupic, Justices Hear Religious Workplace Dispute; Teacher Sued Church Over Firing, USA today, Oct. 6, 2011, at 5A (“noting that Perich’s job as a fourth-grade teacher was mostly secular.  She taught math, social studies, music and other subjects, along with religion.”).

[15] David G. Savage, Justices Shield Church Schools: The 1st Amendment’s ‘Free Exercise’ Clause Prevents Teacher-Ministers from Filing Bias Suits, Court Says, L.A. Times, Jan. 12, 2012, at A6.

[16] Id. (quoting Notre Dame law professor Rick Garnett).

[17] Brad Turner, It’s My Church and I Can Retaliate if I Want to: Hosanna-Tabor and the Future of the Ministerial Exception, 7 Duke J. Const. Law & Pub Pol’y Sidebar 21, 26 (2011).

[18] Id. at 25.

[19] Id.

[20] Joan Biskupic, Court: Some Religious Workers Can’t Sue for Bias; Justices Back Exception to Discrimination Rules, USA Today, Jan. 12, 2012, at 2A.

[21] Id.

[22] Id.

[23] Savage, supra note 15.

[24] David G. Savage, Supreme Court: Church-State Separation Extends to Religious Schools, L.A. Times (Jan. 11, 2012), http://articles.latimes.com/2012/jan/11/news/la-supreme-court-churchstate-separation-extends-to-religious-schools-20120111 .

[25] Id.

[26] Biskupic, supra note 20.

[27] Adam Liptak, Religious Groups and Bias Get the Justices’ Attention, N.Y. Times, Oct. 6, 2011, at A21.

[28] Id.

[29] Id.

[30] Biskupic, supra note 14.

[31] Adam Liptak, Religious Groups Given ‘Exception’ to Work Bias Law, N.Y. Times, Jan. 12, 2012, at A1.

[33] Liptak, supra note 31.

[34] Id.

[35] Id.

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2 Comments

Filed under Constitutional Law, Education Law, Employment Law, Religion

2 responses to “The Supreme Court and the “Ministerial Exception”: Protecting Freedom of Religion? or Permitting the Disguise of Employee Discrimination?

  1. Alex Schultheis

    I would like to know what the qualifications were for being considered a “minister” at this religious institution. The 6th Circuit Court of Appeals said she was not a minister, therefore extending the right for her to file suit, which Chief Justice Roberts acknowledged in his majority opinion by stating that lay people at religious institutions can do so. But Chief Justice Roberts did consider her a “minister,” reversing from the 6th Circuit, which seems to be the real debate in this case. If she qualifies, as the Supreme Court believes she does, then she cannot file suit as the legal analysts noted because “minsters” are considered part of the religious organization. But if she does not qualify, then the right of suit does extend to her in this case. I guess I would like to know what Chief Justice Roberts and the 6th Circuit were both looking at to come to different conclusions about whether she should be considered a “minister” or not.

  2. Brad Turner

    Great article. Also, a big thanks for citing my note!

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