Instant Analysis: Hosanna-Tabor v. EEOC

January 11th, 2012

The Court unanimously per the Chief reversed, finding that Perich was considered a “minister” and thus falls under the ministerial exception. Thomas concurred alone. Alito also concurred, joined by (curiously) Kagan. The Chief kept it narrow enough to prevent anyone from breaking off.

Roberts (majority)

At least someone is citing Magna Carta!

Controversy between church and state over religious offices is hardly new. In 1215, the issue was addressed in the very first clause of Magna Carta. There, King Johnagreed that “the English church shall be free, and shall have its rights undiminished and its liberties unimpaired.” The King in particular accepted the “freedom of elections,”a right “thought to be of the greatest necessity and importance to the English church.” J. Holt, Magna CartaApp. IV, p. 317, cl. 1 (1965).

And the Chief cited a law review article (albeit by Michael McConnell, but it still counts)!  Huzzah!

Seeking to escape the control of the national church, thePuritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship. See T. Curry, The First Freedoms: Church andState in America to the Passage of the First Amendment 3 (1986); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.1409, 1422 (1990).

And  post hoc ergo propter hoc originalism:

It was against this background that the First Amendment was adopted. Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. See 1 Annals of Cong. 730–731 (1789) (noting that the Establishment Clause addressed the fear that “one sect might obtain a pre-eminence, or two combine together, and establish a religion to which they would compel others to conform” (remarks of J. Madison)). By forbidding the“establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that thenew Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government fromappointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.

And Louisville gets a shoutout!

Given this understanding of the Religion Clauses—and the absence of government employment regulation generally—it was some time before questions about government interference with a church’s ability to select its own ministers came before the courts. This Court touched upon theissue indirectly, however, in the context of disputes over church property. Our decisions in that area confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers. In Watson v. Jones, 13 Wall. 679 (1872), the Court considered a dispute between antislavery and proslavery factions over who controlled the property of the WalnutStreet Presbyterian Church in Louisville, Kentucky. The General Assembly of the Presbyterian Church had recognized the antislavery faction, and this Court—applyingnot the Constitution but a “broad and sound view of the relations of church and state under our system of laws”—declined to question that determination. Id., at 727. We explained that “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to whichthe matter has been carried, the legal tribunals mustaccept such decisions as final, and as binding on them.”

And finally, the Chief gets to the meat.

Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination inemployment. The Courts of Appeals, in contrast, have had extensive experience with this issue. Since the passage of Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e et seq., and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existenceof a “ministerial exception,” grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.2 We agree that there is such a ministerial exception. The members of a religious group put their faith in the handsof their ministers. Requiring a church to accept or retainan 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 governanceof the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free
Exercise Clause, which protects a religious group’s right toshape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

And the Court narrowly construes Employment Division v. Smith. Interesting:

The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), precludes recognition of aministerial exception. . . . It is true that the ADA’s prohibition on retaliation, likeOregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concernsgovernment interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of“physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”). The contention that Smith forecloses recognitionof a ministerial exception rooted in the Religion Clauses has no merit.

The Court applies the ministerial exception, but won’t set a clear test as to how apply it (shocker):

Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limitedto the head of a religious congregation, and we agree. We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as 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.

So the Court can’t recognize Privileges or Immunities in McDonald because they can’t identify the full-extent of the right, but in the first case of the ministerial exception, the Court simply applies it to the facts of the case. Judicial modesty my buttocks (sorry, still giggling from oral argument in Fox v. FCC yesterday).

At which point Roberts goes through all of Perich’s duties and responsibilities.

In light of these considerations—the formal title givenPerich by the Church, the substance reflected in that title, her own use of that title, and the important religiousfunctions she performed for the Church—we concludethat Perich was a minister covered by the ministerial exception

And the Court goes further, saying an order to reinstate Perich (what the EEOC wanted) would violate the Constitution:

Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religiousemployer. The EEOC and Perich originally sought anorder reinstating Perich to her former position as a called teacher. By requiring the Church to accept a minister itdid not want, such an order would have plainly violated the Church’s freedom under the Religion Clauses to selectits own ministers.

Roberts does note in a footnote that the ministerial exception is “an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar.”

That is because the issue presented by the exception is “whether the allegations the plaintiffmakes entitle him to relief,” not whether the court has “power to hear[the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___, ___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District courts have power to consider ADA claims in cases of this sort, and todecide whether the claim can proceed or is instead barred by the ministerial exception.

The Court alluded to the potential that a Church would discriminate against an employee, under the robe of the ministerial exception.

The EEOC and Perich suggest that Hosanna-Tabor’sasserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. 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 exceptioninstead ensures that the authority to select and controlwho will minister to the faithful—a matter “strictly ecclesiastical,”

Roberts punts on concerns that a church could retaliate against an employee for reporting abuse (I think Sotomayor asked about this during args, obviously alluding to Catholic church scandal)

The EEOC and Perich foresee a parade of horribles that will follow our recognition of a ministerial exception toemployment discrimination suits. According to the EEOCand Perich, such an exception could protect religiousorganizations from liability for retaliating against employ ees for reporting criminal misconduct or for testifyingbefore a grand jury or in a criminal trial. What is more, the EEOC contends, the logic of the exception would confer on religious employers “unfettered discretion” to violate employment laws by, for example, hiring children oraliens not authorized to work in the United States. Brief for Federal Respondent 29. . . .

The case before us is an employment discrimination suitbrought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view onwhether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exceptionto other circumstances if and when they arise.

How did Justice Ginsburg join this sentence, I am unsure.

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important.But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Thomas (concurring)


Thomas also writes separately to stress that the Constitution compels courts to defer to the religious organization’s views.

I write separately to notethat, in my view, the Religion Clauses require civil courtsto apply the ministerial exception and to defer to a religious organization’s good-faith understanding of whoqualifies as its minister. As the Court explains, the Religion Clauses guarantee religious organizations autonomy in matters of internal governance, including the selectionof those who will minister the faith. A religious organization’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organization’s sincere determination that a given employee is a“minister” under the organization’s theological tenets. Our country’s religious landscape includes organizationswith different leadership structures and doctrines thatinfluence their conceptions of ministerial status. The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of “minister” througha 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.

If the group “sincerely consider[s]” someone a minister, then that they are:

The Court thoroughly sets forth the facts that lead to itsconclusion that Cheryl Perich was one of Hosanna-Tabor’sministers, and I agree that these facts amply demonstrate Perich’s ministerial role. But the evidence demonstrates that Hosanna-Tabor sincerely considered Perich a minister. That would be sufficient for me to conclude that Perich’s suit is properly barred by the ministerial exception.

Alito (concurring with Kagan)

Alito wrote separately with Kagan to caution reliance on the concept of ordination, which is only present in certain faiths, as a test. Rather, the Court should “focus on the function performed by the person.”

I join the Court’s opinion, but I write separately toclarify my understanding of the significance of formal ordination and designation as a “minister” in determiningwhether an “employee”1 of a religious group falls withinthe so-called “ministerial” exception. The term “minister” is commonly used by many Protestant denominations torefer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists.2 In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions. Because virtually every religionin the world is represented in the population of the UnitedStates, 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 incases like this one. Instead, courts should focus on the function performed by persons who work for religious bodies.

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religiousceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groupsmust be free to choose the personnel who are essential tothe performance of these functions.
The “ministerial” exception should be tailored to this purpose. It 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. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.

This view conflicts with the majority’s discussion of the importance of the title.

[The lower court] failed to see any relevance in the fact that Perich was a commissioned minister. Although such a title, by itself, does not automatically ensure coverage, the fact that an employeehas been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of the employee’s position. It was wrong for the Court of Appeals—and Perich, who has adopted the court’s view,see Perich Brief 45—to say that an employee’s title does not matter.


And Justice Alito cites foreign law–the Qur’an!!! Don’t tell Oklahoma.

3In Islam, for example, “every Muslim can perform the religious rites,so there is no class or profession of ordained clergy. Yet there are religious leaders who are recognized for their learning and their abilityto lead communities of Muslims in prayer, study, and living accordingto the teaching of the Qur’an and Muslim law.” 10 Encyclopedia of Religion 6858 (2d ed. 2005).

Alito addresses a situation where a Catholic Church fires a priest who gets married.

At oral argument, both respondent and the UnitedStates acknowledged that a pretext inquiry would sometimes be prohibited by principles of religious autonomy, and both conceded that a Roman Catholic priest who is dismissed for getting married could not sue the churchand claim that his dismissal was actually based on a ground forbidden by the federal antidiscrimination laws.See Tr. of Oral Arg. 38–39, 50. But there is no principledbasis for proscribing a pretext inquiry in such a case whilepermitting it in a case like the one now before us. The Roman Catholic Church’s insistence on clerical celibacy may be much better known than the Lutheran Church’sdoctrine of internal dispute resolution, but popular familiarity with a religious doctrine cannot be the determinativefactor.

What matters in the present case is that Hosanna-Tabor believes that the religious function that respondent performed made it essential that she abide by the doctrine of internal dispute resolution; and the civil courts are in noposition to second-guess that assessment. This conclusion rests not on respondent’s ordination status or her formal title, but rather on her functional status as the type of employee that a church must be free to appoint or dismissin order to exercise the religious liberty that the FirstAmendment guarantees.

I can’t imagine Justice Stevens joining this opinion. Some buyer’s remorse on free exercise jurisprudence coming soon? And nothing from RBG or Breyer on Ministers and Rabbis?