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Ruling on Ministers: What the Supreme Court said & didn't say

January 23, 2012

Teachers as Ministers
By Barran Liebman,
Oregon law firm

The U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, held that the “ministerial exception” bars a school teacher from bringing employment discrimination claims against her religious employer. The Court’s ruling clearly grants religious institutions the freedom to employ (and terminate) employees who act as ministers of their faith. Yet the Court’s decision does not clearly delineate how a religious organization (or their employees) determines who is and who is not a “minister.”

The “ministerial exception” allows religious organizations—under the Establishment and Free Exercise Clauses of the First Amendment—the religious freedom from government interference (e.g., employment discrimination laws) to determine who to employ to perform their religious work. Traditionally, the exception has been applied to allow religious organizations the discretion to discriminate in hiring ministers, rabbis, priests, and other religious leaders of their choice. The significance of the Hosanna-Tabor decision is that the exception may also encompass positions in religious schools that require formal religious training and/or instructing students about religious matters.

In the Hosanna-Tabor case, the EEOC brought suit on behalf of Cheryl Perich, who was a “called” teacher (as opposed to a “lay” teacher) at a school in Redford, Michigan. Ms. Perich spent the vast majority of her time teaching secular subjects (math, language arts, social studies, science, gym, art, and music). She also taught a religion class four days a week, led the students in prayer and devotional exercises everyday, attended a weekly school-wide chapel service, and led the chapel service about twice a year. Significantly, however, even though her religious duties consumed only 45 minutes of each workday, she had completed religious training and the school considered her a “commissioned minister.” The school said that she was terminated because she violated religious doctrine in threatening to bring a lawsuit against the school (under the Americans with Disabilities Act) rather than trying to resolve the dispute within the church. The EEOC took up the case on her behalf.

Although the question of precisely what positions are or will be included in the ministerial exception remains unanswered, in the Opinion of the Court, Justice Roberts relied on the fact that the church and school held Ms. Perich out as a minister, issued her a diploma of vocation, and required her to undergo a significant degree of religious training, followed by a formal process of commissioning. In a concurring opinion, Justice Thomas wrote that the very question of who the exception includes is itself religious in nature. In another concurring opinion, Justice Alito wrote 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.”

If your organization is a religious-focused or -affiliated organization, you may consider evaluating positions to determine whether the ministerial exception may cover those positions.

By Barran Liebman,
Oregon law firm

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