Supreme Court Rules That Ministers Cannot Sue Churches Over Employment Discrimination

In the recently-decided Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Opportunity Employment Commission, the Supreme Court held (PDF) that “ministers” cannot sue their churches under federal employment discrimination laws.  For background on this case, see this previous post.

Relying heavily on the history of the Constitution, the Court explained that the First Amendment was designed, in part, “to ensure that the new Federal Government — unlike the English Crown — would have no role in filling ecclesiastical offices.”  The Court explained:

Requiring a church to accept or retain an 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 governance of 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 to shape 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.

The Court argues, in essence, that applying federal discrimination laws to churches regarding church hiring and firing (of ministers) would unduly entangle the government with the church.

This decision has disappointed some, and it seems to me that this disappointment comes in two varieties.

First, some people are worried that churches, synagogues, etc. will simply call most of their employees “ministers,” thereby avoiding federal employment laws.  This would allow the church to fire these employees for any number of discriminatory reasons without the possibility of a lawsuit.  I believe this concern to be unfounded.  Although the Court does not present a “rigid formula” for determining when someone is a “minister,” the Court considered a variety of factors before holding that Cheryl Perich (the fired employee) was in fact a minister at Hosanna-Tabor (the church that fired her):

Hosanna-Tabor held her out as a minister, with a role distinct from that of most of its members. That title represented a significant degree of religious training followed by a formal process of commissioning. Perich also held herself out as a minister by, for example, accepting the formal call to religious ser­vice. And her job duties reflected a role in conveying the Church’s message and carrying out its mission: As a source of religious in­struction, Perich played an important part in transmitting the Lu­theran faith.

Only time will tell, of course, but given these factors I do not believe churches will be able to circumvent federal employment law simply by referring to all of their employees as “ministers.”

A second common concern, and one I believe is well-founded, is that actual ministers are now without access to legal recourse if their church has violated federal employment law. As explained by Americans United in their press release, “A pastor who objected to being sexually harassed, for example, could be fired for raising that issue and have no recourse in the courts.”

The best we can hope for, then, is that ministers who have been harassed or discriminated against (and now have no legal recourse) are able to use that experience to raise awareness within their own communities.  Or — dare I say it? — maybe they should consider choosing an entirely new community.

About katherine

Born in Texas, Katherine is now a lawyer in the northwestern United States.

  • http://friendlyatheist.com Richard Wade

    Yes, Katherine, dare say it. I’m fine with this decision because it makes being a minister or a (ahem) “minister” by employer’s decree a less attractive job. 

  • Anonymous

    What about Quakerism in which all believers are considered priests? Or at least that everyone can become one. They don’t have formal requirements, but may consider anyone in a leading function a minister.
    Given the thousands of different sects of Christianity and how easy it is to make up a new one, it’s not farfetched to see how this can be abused. Even if the abuse doesn’t hold up in a new trial, it still happened

    • Rich Wilson

      Don’t Mormons all call themselves “Saints”?  And oh, I hate to think what Scientology will do with this…

      • Anonymous

        Don’t know about that, but Mormons have “bishops” in their 20s and 30s. They have lots of lay leaders in roles like “stake president”. It seems very easy to attain a position of authority there.

      • Nordog

        Yeah, I don’t think Scientology fires anyone.  In fact, the don’t even let people quit.  Besides, I’m not sure that Scientology even has many employees and we normally think of them.  Aren’t most of them working off their expenses for being in Scientology to begin with?

  • Gus Snarp

    I think the issue of whether the religious exemption is being used as a pretext is a huge problem. While I don’t want government deciding who a church hires as a minister and why, and getting involved in this is tricky, when the beliefs are being used as a pretext to get away with firing someone because of a disability, that’s just wrong. The justices may be right that it’s legal, but it’s definitely wrong. And one thing is certain in this case: 
    Hosanna-Tabor has proven itself to be immoral, unethical, and unqualified to teach anyone morality by cynically using it’s religious rules to be above the law and prevent a teacher from having recourse when they fired her simply for being disabled. Any member of that Lutheran group ought to be seriously considering what their church stands for.

    • http://friendlyatheist.com Richard Wade

      Yes, exactly. Hosanna-Tabor showed their true character, and churches, parochial schools, charities, and other religious organizations across the country are going to do the same with impunity. It will be painful for those who are unfairly fired, but in the long run it will be self-defeating for the employers, even those who do not abuse this. This decision allows religious organizations to “eat their own,” and whoever they hire to replace those they fire will know it. If job seekers have any other job choice, they’ll be more likely to go elsewhere. The religious organizations will have to pick from a less qualified pool, who will probably consider it only as a temporary job until they find something more secure.

      Right now, thousands of parochial school teachers know they’re screwed and are dusting off their resumes.

  • Rich Wilson

    I just can’t get my head around the religious freedom to do non-faith based things that would otherwise be illegal.  If they had a faith based reason to fire her, I think I’d get it.  But from what I can tell, firing her (or forcing her to resign) had no religious basis.  It was purely that she took time off for medical treatment.

  • Guffey

    Interesting. In Denver, CO this week there is a controversy about the firing of teachers/coaches at a religious high school.  One of the fired teachers is bringing a discrimination lawsuit and some folks have speculated that this “minister” law might be used as a defense.  I guess at a minimum there will be some clarification – might be an important case if it actually goes to trial. 

  • Bob Becker

    I think the court got this one right.   We absolutely do not want any branch of government, courts included, getting into the business of determining who is sufficiently ministerial and who is not.   Absolutely not.   

    Might it be abused by having, say, a religious school declare that all employees serve, in part, a ministerial function, and are expected to convey the  doctrines of the faith in their work, and have received special training to prepare them for that responsibility?  Sure.  In fact, I’d say that almost certainly will happen.  But to prevent it, the courts would have to agree that government, either through some legislation-created procedure, or the courts themselves, would have to determine, and should determine, and have the power to determine, who has a sufficiently  ministerial function to come under the exemption.   I absolutely do not want the courts dipping so much as a toe into the nefarious business of determining who, by a particular religion’s standards, is or is not a minister of the faith.  That way lies chaos.

    Court got this one right, from a Constitutional POV I think.   

  • Shells

    I don’t see what business the government has telling ANYONE who they can hire or fire for ANY reason. If you want to discriminate against someone for any reason, I think you ought to have the freedom to be an unintelligent bigot, just as I have the right to tell everyone that you are, and boycott your business. In the case of churches, they ought to be able to hire or fire anyone they want for any position for any reason. So I support this decision.

    • Anonymous

      That may sound nice to you, but it has been tried and didn’t work out

    • http://www.laughinginpurgatory.com/ Andrew Hall

      Say there is a business that fires someone for being an atheist, and that business is in the Bible belt where the culture frowns on atheism, then you think that the ex-employee should have no recourse through the courts?

    • Rich Wilson

      Actually I have worked at a place that was ‘at will’.  They had the right to dismiss any employee and give no reason.  And they did.  And we had the right to quit and give no reason or notice.  I actually did once, but the prospect of a very tough job market, and enough savings for < 2 months made me go back.  I had to suck it up for another year, disliking it every day, until I found something better.  Thankfully MUCH better.

      • Gus Snarp

        At will employment is pretty common, but while they can give no reason, if you can show reasonably that the reason was discrimination, it’s still illegal. In the U.S., at least.

  • Anonymous

    I think the courts got this one wrong.   Yes the church can choose to fire someone, but they should also be forced to deal with the consequences if it is an unjust termination.

    The 1st Amendment is not a get out of jail free card for bad contractual decisions.

  • The Vicar

    I sort of vaguely recall that people with certain types of disfigurement cannot be rabbis. So if you don’t allow religious institutions to fire their ministers, you are infringing on their religion.

    Of course, by that argument, if a religion says it believers must kill anyone who disagrees, then you can’t stop them from committing not only murder but genocide. Obviously “freedom of religion” has to have limits, just as “freedom of speech” has (shouting “fire” in a crowded theater, etc. etc.)

  • http://brielle.sosdg.org Brielle

    Didn’t the churches whine and cry about wanting exceptions to the federal employment rules?  Well, I think, the proper phrase for this is, you can’t have your cake and eat it too.

    • Callie K.

      This. This kind of ruling protects all of us.

  • Anonymous

    My gut reaction is if you are employed by a church and given the name minister, solely so the church can exercise its right to fire you, then you accept the risks.|

    It does feel kinda victim blamey to me, but the primary use of this, that a congregation shouldn’t need to continue to employ someone that they don’t like, and who doesn’t represent their beliefs, seems reasonable.

    • Tim

      Thats fine if the church is pnly doing church stuff – services etc.  But what if they win a government contract for providing some social service

  • T-Rex

    Gee, discrimination in religion? Who’d a thunk it?
    You want to work in a church? You should probably expect some type of discrimination as part of the whole religious experience.

    • Bob Becker

      I don’t think this decision bears on that.  The Church does not have a right to be employed by the public for a public purpose, and so you can build into the contracts a requirement that they meet all laws regarding non-discrimination. The decision only covered church employees in church-run organizations.  The decision is more limited, I think, than your question suggests.

  • http://snigsfoot.blogspot.com/ Rob Crompton

    A recent somewhat similar case here in the UK seems to be going in a different direction:
    http://www.bbc.co.uk/news/uk-england-cornwall-16261998

  • http://pulse.yahoo.com/_ORRVVC5R2QWLTXEM6SX5L6BORE Jay Arrrr

    There once was a Baptist church in Indianapolis  that didn’t have employees, they had “Ministers”. Yep, they had a fellow in charge of the toilet-swabbing “ministry”, the floor-mopping “Ministry”,  the Pre-School “Ministry”, etc. And as a “Pastor” they didn’t withhold taxes or FICA on them, nor pay employer taxes.

    The Federal government seized their building and sold it at auction in 2001.

    They didn’t collect sales tax on the copies of  “Waco: The REAL Story” that they sold (gives you an idea what kind of “Christians” these were, don’t it?) either.

  • Callie K.

    As an atheist myself, I can’t see anything here that’s not strictly constitutional. The court is right: it would be tantamount to dictating religious appointments. I can’t see any constitutional argument for a different decision? With all this Christian dominionist stuff going on I was the state firmly incapable of making any kind of religious decree.

    Personally I’d like them to build on this ruling and rule that, like the state is unable to confer holy orders to people, the state is also unable to bless unions and therefore unable to grant marriages. Civil unions period, for please.

    • Eskomo

      Marriage isn’t a religious institution. The state issues marriage licenses to couples whereby a government licensed official (priest, rabbi, justice of the peace) can marry the couple. The state doesn’t bless the union, but it does grant marriages.

  • http://www.facebook.com/AnonymousBoy Larry Meredith

    I also agree with this decision. Government should not be getting involved in the employment decisions of religious institutions any more than religious institutions should be getting involved in the employment of government institutions. If religious institutions decide to abuse that, it could only lead to their own demise. And it just so happens that I’m fine with that too.

  • cl hanson

    I agree with the ruling, and not just because it’s another example of religions showing their true colors by requiring lower standards of ethics than people are held to in ordinary (secular) circumstances.

    However, there’s a lot of leeway for abuse, and it’s not just theoretical.  The LDS church employs people to teach religion to high school and university age students.  It’s not really a position of “minister” as in being the student’s pastor — it’s more like being a teacher.  However, it is “ministerial” enough that they can openly maintain a policy of firing women when they get pregnant (and of refusing to hire singles or women with kids under 18).  Read about it here.

    • http://pulse.yahoo.com/_6GJ6XSVF6X2H5YB5XP735AI2TQ Brown one

       What happen to the separation of church and state.
      Thomas Jefferson thought differently. The Danbury Baptists wrote to
      him congratulating his election and objecting to the First Amendment.
      They thought it implied government dispensed what was not government’s
      to give. Jefferson agreed.

      His reply clearly applied “Separation of Church and State” to the
      establishment and not to the free exercise of religion. As he expressed,
      what communities did and how they worshiped were not federal affairs.
      Jefferson later said the central government was “interdicted from inter-meddling with religious institutions.” Such were state matters.
      State controlled churches frequently exploited t power for
      evil. The Spanish Inquisition didn’t originate in the Vatican, but the
      Castilian court. It was not of the church, but the king. By Philip II,
      Spain had the makings of the first police state infused with the
      ill-gotten moral authority of a tyrannical clergy.

      Much of our Bill of Rights was meant to prevent dictatorships such as
      Cromwell’s, which married church and state in such manner as to mar
      many of the freedoms our forefathers fought to establish.
      Liberals are redefining establishment. Limitations on government have been
      altered into restrictions on religious expression, which clearly
      violates the amendment’s next clause: “prohibiting the free exercise
      thereof” and third clause “abridging the freedom of speech.” Meanwhile,
      Washington publicly imposes politically correct secular religions like
      worshiping diversity or the environment.

      Are our rights inalienable or contrivances from courts? Is government
      still limited or its power undefined? Is the state answerable to the
      people or are we but subjects? Do our rights descend from God or derive
      from man?

  • http://pulse.yahoo.com/_6GJ6XSVF6X2H5YB5XP735AI2TQ Brown one

    What happen to the separation of church and state. Ingornance of our history is having grave implications for religious freedom.Thomas Jefferson did not define as separation of church and state as liberals now define it. The Danbury Baptists wrote to  him congratulating his election and objecting to the First Amendment. They thought it implied government dispensed what was not government’s to give. Jefferson agreed. His reply clearly applied “Separation of Church and State” to the establishment and not to the free exercise of religion. As he expressed, what communities did and how they worshiped were not federal affairs. Jefferson
    later said the central government was “interdicted from inter-meddling
    with religious institutions.” Such were state matters. State controlled churches frequently exploited t power for evil. The Spanish Inquisition didn’t originate in the Vatican, but the Castilian court. It was not of the church, but the king. By Philip II, Spain had the makings of the first police state infused with the corrupt moral authority of a tyrannical clergy. Much of our Bill of Rights was meant to prevent dictatorships such as Cromwell’s, which married church and state in such manner as to mar many of the freedoms our forefathers fought to establish. Liberals are redefining establishment. Limitations on government have been altered into restrictions on religious expression, which clearly violates the amendment’s next clause: “prohibiting the free exercise thereof” and third clause “abridging the freedom of speech.” Meanwhile, Washington publicly imposespolitically correct secular religions like worshiping diversity or the environment.Are our rights inalienable or contrivances from courts? Is government
    still limited or its power undefined? Is the state answerable to the people or are we but subjects? Do our rights descend from God or derive from man?

    Lastly why is our President and his wife now using the pulpit to promote their policies. Even it was a conservation, there would a outcry about it. We are slowing morphing in the Soviet Union where religious conscience and expression will be criminal and punishable unless it is related to Islam.
     


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