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Ministerial Exemption is Shrouded in Uncertainty

JURIST Guest Columnist Jeffrey Pasek of Cozen O'Connor says that despite the Supreme Court's unanimous ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, there is little guidance given on how to uniformly apply the ministerial exemption to varying circumstances...

What are we to make of the fact that all nine Supreme Court justices agreed with the decision and joined in an opinion by the chief justice in a case raising important issues touching on both the Free Exercise and Establishment Clause principles of the First Amendment? Given the Court's recent jurisprudence in the church-state area, and the inability of the majority to coalesce around doctrinal principles in some of these cases, a unanimous outcome must mean either that the case represents a breakthrough or it resolves very little. In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, I am afraid that the ruling resolves relatively little.

For the record, the six Catholics and three Jews who sit as justices reached a happy ecumenical outcome in ruling that a Lutheran church did not have to answer claims of employment discrimination brought by Cheryl Perich, a former teacher in its school. Applying the "ministerial exemption," the Court ruled that Perich could not maintain her claim that she had been retaliated against in violation of the Americans with Disabilities Act (ADA).

Much has been written about the ministerial exception, and its place as part of First Amendment jurisprudence can trace its origins to the very first clause of the Magna Carta. Over the years, the Supreme Court has given religious organizations the freedom to select clergy so the government is kept from interfering with issues of church administration as well as matters of ecclesiastical doctrine. The Hosanna-Tabor case was the Court's first foray into the relationship between the ministerial exemption and generally applicable laws prohibiting employment discrimination, in this case the ADA. The different federal courts of appeals and various state appellate courts have uniformly recognized some form of ministerial exemption, but their decisions do not reflect a consistent rule. The Supreme Court agreed that such a ministerial exemption exists. It held that "both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers." Beyond this, the Court did little to provide clear guidance in the future.

The Equal Employment Opportunity Commission (EEOC) argued that the Court's decision in Employment Division, Department of Human Resources of Oregon v. Smith resolved any free exercise issues and precluded application of a ministerial exception. The Smith case involved two members of the Native American Church who were denied unemployment benefits when they lost their jobs for ingesting peyote in violation of Oregon law. Although they had used peyote for sacramental purposes, the Court rejected their claim; it held that the "right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." The Hosanna-Tabor Court limited Smith to government regulation of "outward physical acts" and contrasted this with applying a neutral law to interfere with an "internal church decision that affects the faith and mission of the church itself." The internal-external distinction is new and hardly self-explanatory. However, the Hosanna-Tabor opinion said little to illuminate or defend it.

Chief Justice Roberts was apparently cognizant of the potential impact of a broad holding and took pains "in this our first case involving the ministerial exemption," to limit the sweep of the Court's ruling to the facts of the case before it. That caution paved the way for a ruling that is not likely to provide much guidance in future cases.

The religious aspect of Perich's job — teaching religious subjects, leading her class in daily prayer and devotional exercises and leading a chapel service for students a couple times a year — took an average of only 45 minutes per day. Moreover, the church hired lay teachers to perform these same duties when commissioned ministers were not available, thus making clear that being a minister was not an essential qualification for the job. On the other hand, Perich considered herself to be a minister and so did her church. Not only had she accepted the church's "call" by acquiring a formal minister of religion commission, but she also claimed a parsonage deduction on her taxes that is available only to employees earning their compensation "in the exercise of the ministry."

These facts challenged the Court to lay down broad principles to guide the lower courts in applying the ministerial exemption in the future. The Court declined the challenge. On one side, the EEOC argued a rather extreme position that the exception "should be limited to those who perform exclusively religious functions." This argument did not fly with justices whose personal experience with members of the clergy taught them that congregational leaders often have a mix of secular duties and that few, if any, have exclusively religious functions.

On the other side, the church argued the equally extreme view that its employment practices should be exempt from governmental regulation just because it classified Perich as a minister. That argument gained the support of only Justice Thomas, whose church-state jurisprudence has never been near the center of the Court. Justice Thomas wrote that he would defer to a religious organization's good faith understanding of who qualifies as its minister, applying a sincerity test apparently unconnected to an employee's primary duties and not necessarily grounded in whether the employee's function is important to the spiritual or pastoral mission of the church.

The Court's opinion pointedly avoided adoption of either bright line standard that the parties had urged, but it also failed to embrace fully the functional approach urged by Justice Alito and Justice Kagan in their concurrence. To them, a ministerial title is neither necessary nor sufficient, and it makes no difference if a teacher also teaches secular subjects. They would apply the ministerial exemption to those involved in conducting worship services, other religious ceremonies and rituals or the critical process of communicating the faith. Mirroring the opposite of the EEOC's argument, Justice Alito and Justice Kagan would greatly expand the scope of the ministerial exception by holding that only a purely secular teacher would not qualify.

The justices who joined the majority obviously had concerns about embracing the expansive kind of functional approach that Justice Alito and Justice Kagan urged upon them. Otherwise, the Court would not have found it necessary to insist that the result might have been different if Perich had not been ordained. Titles do matter to this Court, though how much remains to be seen. Likewise, the Court stated that the amount of time Perich spent on particular activities was relevant in assessing her status. Rejecting a primary duties test that was governed by a stopwatch, the Court noted that how an employee spends her time cannot be considered in isolation. It must be evaluated with regard to both the nature of the religious functions performed and the employee's title. Perhaps the Court was suggesting that deciding primary duties involves more of a qualitative and less of a quantitative analysis.

The Hosanna-Tabor decision was a clear endorsement of some form of ministerial exemption in statutory employment discrimination cases brought by private plaintiffs, but the Court explicitly stated it was expressing no view on whether the exception might bar other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. Even in employment cases, loose ends proliferate.

How minimal may an employee's religious duties be for the employee to qualify, and from whose perspective is this to be evaluated? According to the Court, the purpose of the ministerial exemption is to protect religious organizations "as institutions." Therefore, the focus of future inquiries may turn on whether the refusal to grant an exemption would entangle the courts in the internal affairs of the church or require a civil authority to make judgments about the applicability of religious doctrine to the issue before it. Would government interference with deciding who holds the job at issue affect the faith and mission of the church itself? Does this in turn depend on whether members of the church or even outsiders would perceive this employee as a messenger of the faith?

The Court's decision was premised on the assumption that it was dealing with a religious institution. Future courts will have to consider the rationale for the ministerial exemption at the statutory interpretation level as they grapple with deciding if particular entities can qualify as exempt religious organizations under Title VII and other discrimination laws. Although the issue is not strictly one of constitutional interpretation, the close association between the statutory exception and its constitutional grounding will make such analysis inevitable. The results will be important far beyond the range of jobs one might call ministerial.

For example, in LeBoon v. Lancaster Jewish Community Center Association, the US Court of Appeals for the Third Circuit dismissed a religious discrimination and retaliation claim brought by the bookkeeper of a local community center. The Third Circuit identified nine criteria to be applied in deciding whether a center was an exempt religious organization under Title VII of the Civil Rights Act of 1964:

  1. whether the entity operates for a profit,
  2. whether it produces a secular product,
  3. whether the entity's articles of incorporation or other pertinent documents state a religious purpose,
  4. whether it is owned, affiliated with or financially supported by a formally religious entity such as a church or synagogue,
  5. whether a formally religious entity participates in the management, for instance by having representatives on the board of trustees,
  6. whether the entity holds itself out to the public as secular or sectarian,
  7. whether the entity regularly includes prayer or other forms of worship in its activities,
  8. whether it includes religious instruction in its curriculum, to the extent it is an educational institution, and
  9. whether its membership is made up by coreligionists.
The Third Circuit added a caveat that "not all of these factors would be relevant in all cases, and the weight given each factor may vary from case to case." The criteria identified in the Hosanna-Tabor decision do little to clarify the viability of some of these factors.

Despite the limitations of the Hosanna-Tabor decision, its embrace of the ministerial exemption is likely to insulate a host of employment decisions from judicial scrutiny. This is very important to congregations of all types because they will not be put to the burden to prove they made those decisions for a religious reason. Small, often poor, churches will be able to save themselves from the costs of expensive employment-discrimination litigation. They will no longer have to establish a doctrinal basis or show a legitimate non-religious motive for their employment decisions.

Meanwhile, lawyers with an interest in church-state issues will have a field day trying to answer the subtle questions that the Hosanna-Tabor decision leaves unresolved. Hosanna-Tabor leaves open how far the government may go in requiring religious bodies to employ teachers; but it certainly assures that they will have to employ lawyers.

Jeffrey Pasek is a member at the Philadelphia office of Cozen O'Connor, a firm that has 22 offices worldwide. He concentrates on representing management in labor and employment disputes, collective bargaining issues, affirmative action compliance, workplace torts and employee benefit litigation. He has been selected as a "Pennsylvania Super Lawyer" each year since 2005.

Suggested citation: Jeffrey Pasek, Ministerial Exemption is Shrouded in Uncertainty, JURIST - Hotline, Jan. 21, 2012, http://jurist.org/sidebar/2012/01/jeffrey-pasek-ministerial-ada.php.

This article was prepared for publication by Stephen Krug, an assistant editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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