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Under fire: The ‘ministerial exception’

By David Middlebrook and Wendi L. Hodges

There is a blockbuster religious freedom case that is currently pending before the United States Supreme Court. Courts have generally believed that federal employment discrimination statutes do not apply to church employees performing religious functions.

However, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the question has been raised as to whether the “ministerial exception” applies not simply to religious leaders, but also to teachers at religious schools – particularly someone who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister and regularly leads students in prayer and worship.

Specifically, the case revolves around a teacher in a religious elementary school in Michigan who was diagnosed with narcolepsy and eventually fired.

The religious tenants of the school’s sponsoring denomination – the Lutheran Church-Missouri Synod (LCMS) – required any disputes be handled by the church tribunal; however, the teacher did not abide with the policies of the denomination regarding dispute resolution, but rather sued the church and school in secular court under the Americans with Disabilities Act (ADA), claiming her termination was due to her disability (which, of course, is not a permissible action by employers under the ADA).

Religious reasons
The church and school insist that the terminated employee was a “commissioned minister” and that her termination was for religious reasons; therefore, that the case is subject to the ministerial exception (i.e., dismissal from the secular courts).

As described in the petition for certiorari filed with the Supreme Court:

“The ‘ministerial exception’ bars lawsuits that interfere in the relationship between a religious organization and employees who perform religious functions — most obviously, lawsuits seeking to compel a religious organization to reinstate such an employee or seeking to impose monetary liability for the selection of such employees. As the first court adopting the ministerial exception explained: ‘The relationship between an organized church and its ministers is its lifeblood’; allowing the state to interfere in that relationship — effectively allowing judges and juries to pick ministers — would produce ‘the very opposite of that separation of church and State contemplated by the First Amendment.’ McClure v. Salvation Army, 460 F.2d 553, 558, 560 (5th Cir. 1972).

“Based on this principle, every circuit has agreed that the ministerial exception bars most lawsuits between a religious organization and its leaders. Every circuit has also agreed that the ministerial exception extends beyond formally designated ‘ministers’ to include other employees who play an important religious role in the organization.”

Tenets of faith
The ministerial exception to employment law was established to give religious groups the freedom to hire and fire people performing religious functions, in order to uphold the tenets of their particular faith. The rationale is that the ministerial exception lets religious organizations practice their religion and convey their beliefs without being subject to employment discrimination laws.

For example, the Catholic Church does not permit women to serve as priests; however, the church is free from a discrimination claim due to the ministerial exception to federal employment laws.

In a common employment claim scenario, a church employs a minister and then that minister sues the church alleging some violation of either Title VII (such as retaliation, racial discrimination, gender discrimination, or sexual harassment), the Age Discrimination in Employment Act (ADEA), or the ADA. In such a scenario, the majority of courts will apply the ministerial exception, which results in the case being dismissed.

However, in the Hosanna-Tabor case, the issue at hand is whether the ministerial exception can be extended to an employee who, though a commissioned minister who taught religious studies and lead children in prayer, mostly taught secular subjects such as math and English. In this case, the teacher filed a discrimination claim, and the church filed a motion to dismiss based on the ministerial exception. The U.S. Court of Appeals for the Sixth Circuit sided with the teacher, and the church appealed to the U.S. Supreme Court.

Freedom of religion
Generally, courts feel that they cannot get involved in such issues without coming into conflict with the freedom of religion clauses in the First Amendment. Many commentators argue that the ministerial exception is wrong and should not be applicable based on the fact that it does not matter whether the church had a religious basis for making its decision; rather, the mere fact that a church and a minister are involved are enough to warrant dismissal of the case.

These same commentators argue that, instead of being applied as a blanket rule, the ministerial exception should only be applied when the employees claim is grounded in a religious context (rather than a strictly employment-related context, such as sexual harassment for example).

Some who argue in favor of doing away with the ministerial exception concede (albeit grudgingly) that there may be instances of exception for certain employees who perform “exclusively” religious function.

However, this “exception” would be fairly difficult to implement considering that most church employees, including the ministers, perform at least some nonreligious administrative duties on a regular, if not daily, basis.

Religious enough?
If the government’s argument is accepted, the courts would be involved in disputes about the selection and termination of clergy at all levels and in every denomination. Basically, this would mean that, in every future case, a court – and not the church itself – could decide whether the church’s reasons for firing or not hiring a minister were good (i.e., religious) enough.

As you can see, based on the facts alone, this is a case about whether a teacher in a faith-based school who teaches a non-religious subject but who has some religious duties should be considered a “ministerial” employee, such that the school is largely free to make decisions about her employment without running afoul of employment laws.

However, for many this is a vitally important case dealing with the separation of church and state.

Supporting the school’s decision to invoke the ministerial exception are multiple and various groups, including Roman Catholics, Mormons, Presbyterians, United Methodists, Seventh-day Adventists, Hindus, United Sikhs, Muslims, Episcopalians, Reform Jews and Orthodox Jews.

These groups hope the high court will hold that the ministerial exception applies not only to religious leaders but also to others within a religious organization, which would provide religious organizations with a broad-based protection from discrimination lawsuits. A ruling is not expected until next spring or summer.

David Middlebrook is a partner and Wendi L. Hodges is an attorney of Anthony and Middlebrook, The Church Law Group, Grapeville, TX. www.churchlawgroup.com

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