Who decides who is a ‘minister’?

Hosanna-Tabor Evangelical Lutheran Church and School vs. EEOC involved the “ministerial exception” to many laws governing employers and the workplace.

That exception reflects both an effort to avoid state entanglement in religious disputes and, more broadly, a bit of common sense.

For example, say you’re the owner of a pizza place and you’re looking to hire a new delivery driver. You can’t put up a sign that says, “Jews Need Not Apply.” And you can’t put up a sign that says, “Only Jews Need Apply.” Either one would be an illegal form of religious discrimination. But say you’re on the board of a Conservative Jewish congregation and you’re looking to hire a new rabbi. In that case, the essential nature of the job requires that you hire someone who is Jewish — and whose particular religious values are in accord with those of your congregation. Presbyterians need not apply. Hindus need not apply. Orthodox and Reformed Jews need not apply.

That’s the “ministerial exception” at work. It’s not illegal — workplace laws forbidding religious discrimination do not apply.

The case of this hypothetical rabbi is fairly uncomplicated and uncontroversial because nearly everyone agrees that the rabbi’s role is ministerial and thus most agree with the logic of this exception. That logic comports with our basic sense of fairness. It seems reasonable for this congregation to consider religious belief in their hiring decision because religious belief is an intrinsic, essential aspect of the position of rabbi.

It gets more complicated and more controversial when the position or employee in question is in a less obviously or less explicitly “ministerial” role. And it gets even more complicated when the workplace laws or rules in question are not as obviously or explicitly related to religious belief.

Rabbis are understood to belong to the category of clergy and that category is defined clearly enough in nonsectarian ways that the law has a pretty good handle on it. But “minister” is a much broader and fuzzier category. All clergy are ministers, but not all ministers are clergy. Many religious organizations employ many people they commission and designate as “ministers” despite their serving in capacities that are largely, or even primarily, secular.

For some faith traditions, this is an essential aspect of their belief — a matter near the core of their faith. In some Anabaptist churches, for example, there is no distinction between clergy and laity. (The rest of us tend to misunderstand this. We see that they have no priests or pastors and assume that they have abolished the category of “clergy,” but as John Howard Yoder put it, what they have really done is abolish the category of laity.)

The determination of who is and who is not a “minister” serving in an intrinsically sectarian capacity is itself an intrinsically sectarian determination. It varies from sect to sect, denomination to denomination and even from congregation to congregation.

Consider for example the post of church treasurer. Most congregations and denominations have an official who is in charge of the money. It’s hard to get much more secular than that. But for many congregations and other religious organizations, the treasurer is regarded as a kind of minister. The role itself may be intrinsically secular, but the congregation or organization believes this official must be personally committed to the values, goals and sectarian beliefs of the group.*

So is that official also a “minister”? Who’s to say?

That question — “who’s to say?” — was at the heart of the Supreme Court’s approach to the Hosanna-Tabor case. And the court’s answer to that question was “Not us.”

This seems to be the justices’ main focus in their 9-0 decision. “Oh, no. No way. Uh-uh. We are not going to get involved in that decision. We’re the state. You’re the church. If you want to argue about who is and who is not a minister you do that on your own. We are not going to get entangled in that.”

That’s a very rough paraphrase, of course, but based on what I’ve read of and about this decision, that’s the main thrust of it.

The principle at work here seems to be that of avoiding “excessive entanglement” of church and state. The case presented the court with an invitation to entangle itself in the definition of a minister and it declined the invitation. As Steve Benen puts it, the court seemed to acknowledge the significance of this definition, but this time around they punted.

Usually that’s the sort of reasoning and the sort of decision that would be celebrated unambiguously by advocates of a strict separation of church and state. But in this case those advocates are divided and a bit unsettled by the way this decision leaves things a bit unsettled.

The reason that the court’s language refers to “excessive entanglement” is because some degree of church-state entanglement is inevitable and even desirable. Church buildings must still be built to meet safety and fire codes, for example. The state is also unavoidably tangled by questions of who is and who is not “clergy” due to the varying circumstances in which clergy and their housing expenses are or are not taxed and due to many other considerations in which the category of clergy must be legally recognized and, therefore, legally defined.

As with marriage laws, a host of rules have agglomerated over the years around that legally recognized category of “clergy.” Some of those rules make a great deal of sense. Some of them once made sense, but linger on even though they no longer do. Some are clearly upheld and others are more contentious or murky. It’s all a bit convoluted. But it’s still far clearer than the category of “minister.”

The justices avoided wading into that in Hosanna-Tabor by washing their hands in this case of jurisdiction over intra-sectarian disputes over the definition of a “minister.” That reluctance to intervene — to refuse to allow the church’s business to become the state’s business — is often commendable, and many observers who followed this case closely say that the particulars here allowed such detachment. But it’s unlikely that the courts or the law will be able to continue perpetually avoiding becoming entangled in this definition.

Hosanna-Tabor affirmed that the category of minister is legally significant, and that means that some day the courts will have a compelling interest in setting some clearer boundaries around that category. When that day comes, this decision may not provide much practical guidance.

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* Another example: Years ago a friend of mine had an occasional paid gig as a soprano in an affluent Main Line church. She regularly sang in their worship services and, because she was an excellent singer, I’m sure that many of the people who attended those services thought of her as “ministering” to them. Yet neither she nor the church that employed her regarded her as a minister. She was hired for secular reasons — because she could hit the E above high C in a way that could make you cry or make you exult. That is why they hired her and what they paid her to do. The minister of music at the church who hired her only cared that she was a good soprano, not that she was a good Presbyterian (which she wasn’t). But note that person’s title — not “choir director,” but minister of music. The church emphatically regarded this non-clerical official as a minister.

  • Anonymous

    Orthodox and Reformed Jews need not apply. That’s the “ministerial exception” at work. It’s not illegal — workplace laws forbidding religious discrimination do not apply.

    Well first of all, it’s “Reform” — not “Reformed.”

    And it’s not true that Orthodox and Reform need not apply.  It’s more likely the case that an Orthodox rabbi would not apply to a Conservative synagogue in the first place.  But an Orthodox rabbi would certainly be qualified to serve at a Conservative syngague.

    And it’s not necessarily the case that a Reform rabbi would be rejected either.  One of my friends is a rabbi who grew up in a Reform household, was ordained by the Reform college in Cincinnati, and is currently the rabbi at a Conservative synagogue — his second Conservative shul.  He also served at several Reforms synagogues.

  • http://jamoche.dreamwidth.org/ Jamoche

    Well, church choir directors do select the music; that requires an understanding of the available music and context in which it will be sung. The people being directed just have to know how to perform it appropriately.

  • Anonymous

    That question — “who’s to say?” — was at the heart of the Supreme Court’s approach to the Hosanna-Tabor case. And the court’s answer to that question was “Not us.”

    Hosanna-Tabor affirmed that the category of minister is legally significant, and that means that some day the courts will have a compelling interest in setting some clearer boundaries around that category. When that day comes, this decision may not provide much practical guidance.

    From the decision:

    In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception.The amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performedand the other considerations discussed above.

  • http://www.metagalacticllamas.com/ Triplanetary

    The problem in this case is that Hosanna-Tabor abused the ministerial exception in order to fire someone for reasons that had nothing whatsoever to do with religion.

    I can’t necessarily argue that the Supreme Court did the wrong thing here. Maybe these are the kinds of loopholes that are necessarily going to spring up when we have these laws. That puts the burden on the church to not abuse their legal privileges, which Hosanna-Tabor failed at.

    Which makes them, as you said in your previous post on the subject, assholes.

  • Technomad

    The question of who is and is not a minister came up during OJ Simpson’s murder trial—he apparently admitted guilt in a private conversation with Roosevelt Grier, but Grier claimed to be a minister and Ito upheld him. 

  • Anonymous

    Didn’t Romney get a ministerial draft deferment when he was doing his mission in France?  That strikes me as a pretty broad use of “minister.”

    In any case, this decision seems like it should put to rest the whole “legal protections for gay people will mean we’ll be forced to have gay people running our churches!” argument, given that apparently churches don’t even have to abide by the guidelines of pretty long-standing anti-discrimination statutes like the ADA.

  • Anonymous

    Well, church choir directors do select the music; that requires an
    understanding of the available music and context in which it will be
    sung.

    This made me think of a situation at a parish where I served during my seminary years.  Their organist/music director was a Seventh Day Adventist.  So is it necessary for the music director to be an Episcopalian to serve in an Episcopal church?  Obviously not.  Do you have to hire an Episcopalian to serve as music director.  Again, no.  Can you give preferential treatment to the Episcopalian if you have more than one candidate?  Without a doubt, but I would think that skill level and ability to adapt to a particular liturgy would carry more influence than simply being of the right denomination. 

    In fact, I could argue that it might be BETTER that your music director be of a different denomination (or even faith) than where they serve.  There have been plenty of bloody wars between clergy and musicians.  Maybe having someone of a different strain would ease, or end, those battles simply based on the idea that neither party tries to outsmart the other.

    I’m not sure where I’m going with all this other than to muddy the waters even more.  There may be some ministerial positions that do not require adherence to a particular doctrine and still be a successful ministry.  There are also obviously ministerial positions that do require adherence to a particular doctrine.  But in every case, we have an obligation to those whom we serve and who serve us to treat them with dignity and respect.  Using the ministerial exception as a basis for purging the congregation of undesirables and establishing a purity cult makes you . . . well . . . an asshole.

  • Anonymous

    **Now trying to eliminate the Dreaded Disqus Double Post**

  • http://dpolicar.livejournal.com/ Dave

    The systems engineer in me wants to back up here and ask “Well, so, what were were trying to achieve in the first place?”

    I mean, OK. We have all this precedent involving benefits accruing to people we label “clergy”, and to other people we label “ministers.” And we have various linguistic and social practices involving the assigning of such labels to people. Before going too much further in an attempt to reconcile all those various practices with a single overarching definition of the labels, I’d want to get clear on why we want to provide any benefits to anyone in this space.

    It’s not a rhetorical question; I don’t mean to suggest here that we don’t want to do so, or that we ought not do so. But if we can remember *why* we wanted to do so, we might be able to apply that principle to the specific cases before us, and the semantic question of who counts as a “minister” will turn out to not matter much.

    A similar principle applies to many other cases where questions about who merits certain benefits, and why, frequently get tangled up in largely irrelevant questions about the meanings of words.

  • http://dpolicar.livejournal.com/ Dave

    The systems engineer in me wants to back up here and ask “Well, so, what were were trying to achieve in the first place?”

    I mean, OK. We have all this precedent involving benefits accruing to people we label “clergy”, and to other people we label “ministers.” And we have various linguistic and social practices involving the assigning of such labels to people. Before going too much further in an attempt to reconcile all those various practices with a single overarching definition of the labels, I’d want to get clear on why we want to provide any benefits to anyone in this space.

    It’s not a rhetorical question; I don’t mean to suggest here that we don’t want to do so, or that we ought not do so. But if we can remember *why* we wanted to do so, we might be able to apply that principle to the specific cases before us, and the semantic question of who counts as a “minister” will turn out to not matter much.

    A similar principle applies to many other cases where questions about who merits certain benefits, and why, frequently get tangled up in largely irrelevant questions about the meanings of words.

  • http://www.metagalacticllamas.com/ Triplanetary

    Well, Romney was actually a Mormon bishop, so while it’s true that Romney is a  gigantic douche, that isn’t really an unreasonable interpretation of “ministerial.”

  • http://www.metagalacticllamas.com/ Triplanetary

    Well, Romney was actually a Mormon bishop, so while it’s true that Romney is a  gigantic douche, that isn’t really an unreasonable interpretation of “ministerial.”

  • http://empoprise-bi.blogspot.com/ John E. Bredehoft (Empoprises)

    As an LCMS member, I can provide a little context regarding the recent Supreme Court decision.

    In the LCMS, it is not unusual to treat teachers as ministers. Teacher education is carried on at the same schools that provide pre-seminary education, as well as education for deaconesses, Directors of Christian Education, and the like. Most significantly, it is possible for a teacher to receive a “call” in the same manner that a pastor receives a call. Some teachers receive calls while others sign contracts. (I do not know whether the teacher in the Hosanna case actually received a call when her status changed.) For IRS purposes, the teachers that receive calls are treated as ministers, with all of the ramifications that entails.

    As for how the church/school should have treated its called minister…well, that’s something that you addressed in your earlier post.

  • Anonymous

    At the time of his mission, I don’t think he was a bishop.  I know there were issues with the LDS Church issuing ministerial exemptions to men going on missions during the Vietnam War, when this occurred.  They were eventually given a limited number of exemptions they could give out, but since Romney was in a state that didn’t have a large Mormon population, it wasn’t an issue.

  • Anonymous

    As a Catholic, it’s just strange to think of “minister” as meaning anything special. Being an altar server is a ministry. So’s handing out the Eucharist as a lay person. Most parish musicians who do Mass would be designated as part of the ministry of music. It means you’re a lay Catholic doing something explicitly related to religious ritual. So while most Catholic teachers at a Catholic school would have the training to hand out the Eucharist… that doesn’t mean being a teacher makes you a minister. So to us ministry is something you do, and clergy would be the legal category where special rules might need to apply.

    But there’s also the very long tradition of Catholicism seeing secular jobs such as teaching or being a business person as being just as much a vocation as being a priest. If you’re good at a useful skill, using that skill well in and of itself gives glory to God, for God created you and gave you talents and you have cultivated those talents into skill. In that mindset, if you’re good at teaching, you have a religious and moral duty to be a good teacher. Just so happens that you also have a secular duty to be a good teacher as well.

    It’s very much a mirror image of the Anabaptist viewpoint. Being laity is just as important or even more important than being clergy. It’s a real calling, without which there’s no Church.

  • Alicia

    A similar
    principle applies to many other cases where questions about who merits
    certain benefits, and why, frequently get tangled up in largely
    irrelevant questions about the meanings of words.

    I think the reason is that the government wants to keep as little entanglement between religion and the government as possible, because of a fear of what almost always happened when there was too much of that entanglement (people being burned alive, heretics being slaughtered, holy wars, religious repression). Getting rid of the tax-exempt status of religious organizations as well as eliminating the minsterial exception might not be in and of themselves a bad idea, but what happens if a community decides, “Hey, we don’t like Santeria that much, so let’s make them pay a special tax and design health codes that aren’t really about health but about criminalizing their religious rituals.”? You don’t want to create the legal precedent that things like that are ok, so you create this wall between church and state that can only be breached when it’s absolutely necessary for public safety and order.

  • http://www.facebook.com/people/Charity-Brighton/100002974813787 Charity Brighton

    double post?

  • http://www.facebook.com/people/Charity-Brighton/100002974813787 Charity Brighton
    A similar
    principle applies to many other cases where questions about who merits
    certain benefits, and why, frequently get tangled up in largely
    irrelevant questions about the meanings of words.

    I think the reason is that the government wants to keep as little
    entanglement between religion and the government as possible, because of
    a fear of what almost always happened when there was too
    much of that entanglement (people being burned alive,
    heretics being slaughtered, holy wars, religious repression). Getting
    rid of the tax-exempt status of religious organizations as well as
    eliminating the minsterial exception might not be in and of themselves a
    bad idea, but what happens if a community decides, “Hey, we don’t like
    Santeria that much, so let’s make them pay a special tax and design
    health codes that aren’t really about health but about criminalizing
    their religious rituals.”? You don’t want to create the legal precedent
    that things like that are ok, so you create this wall between church and
    state that can only be breached when it’s absolutely necessary for
    public safety and order.

    Yeah, pretty much.

  • Anonymous


     but what happens if a community decides, “Hey, we don’t like Santeria that much, so let’s make them pay a special tax and design health codes that aren’t really about health but about criminalizing their religious rituals.”?

    That actually happened in South FL a few years back- essentially a ban on certain types of animal slaughter within city limits. However, there were so many exceptions (for things like kosher butchers) they they were able to demonstrate in court that the law was aimed entirely at Santeria and similar religions, like Voudon, and it was struck down under freedom of religion. 

    Like I pointed out in the last thread- the separation of Church and State isn’t to protect the Methodists, or even the Catholics, nowadays. It’s to protect the Muslims and the Wiccans and all the other minority religions that could otherwise be easily discriminated against in a million different ways. And, ultimately, SCOTUS made the right choice. Sure, “Ministerial” might seem stretched here, but what about when you’re considering a Buddhist monk? From a certain point of view, buddhism, which believes that ultimately everything is nothing, could be argued to not be a religion at all.  No- better that SCOTUS reaffirm our commitment to church and state being as far apart as we can make them and avoid these issues entirely. 

  • MaryKaye

    It would seem to be a sound policy for any religious organization hiring someone who might be a minister to write a contract that spells out whether they are or not.  And for anyone being hired by such an organization to ask for such a contract.  Then all parties know where they stand.

    If the religious organization and the employee have jointly agreed that the position is, or is not, ministerial, I think the court would be absolutely right to decline to second-guess them.

    What you want to avoid is the situation (roughly based on something I read in _Academe_) where a relatively secular administration hires a teacher, and then their less secular successors fire them over theology.  If the teacher did not realize that they were required to hold a particular theology as a condition of employment, that’s not fair.  It may not be legally actionable, but it’s wrong.  Clear contracts spelling out conditions of employment are a good thing.  And if they would make the employer’s hiring problems harder–that’s a good thing too, because it suggests some degree of false pretenses in the hiring process.

    (My colleagues who work for sectarian universities worry about this a lot.  Those can be good jobs, but you are vulnerable in a way that non-sectarian universities mostly avoid.  In particular, my university might fire me if my scientific work turned out to be whacko, but they almost surely wouldn’t fire me because of my outside political activities or statements.)

  • Anonymous

    I’m not sure that an orthodox rabbi would necessarily be qualified to serve a Conservative shul, depending on just where on the spectrum that particular congregation lands. He would certainly have the necessary knowledge of Torah, but it’s actually quite possible that he would not be sufficiently familiar or comfortable with the interpretations preferred at the more reform-ish end of the spectrum.

    I’ve seen a Lubavitcher rabbi try to deal with a more liberal congregation (rabbis moving around led to some small congregations mixing and re-separating trying to get things sorted out) and while his academic qualifications were unquestionable I don’t know if I would say he was generally qualified. It’s possible for an orthodox rabbi to be qualified to serve a conservative shul, but I don’t know that I’d say he’d “certainly be qualified”.

    I’m kind of nitpicking, though – certainly there is room for some flexibility, but it sort of felt like your wording was implying things that I’m not sure you meant.

  • http://jesustheram.blogspot.com/ Mr. Heartland

    Somewhat off topic, the Church of Universal Life is still kicking it.  http://www.themonastery.org/

    I’m a minister.  Put me in court and let me argue for my special entitlements.  Gotta love me. 

  • Anonymous

    I’m not sure that an orthodox rabbi would necessarily be qualified to serve a Conservative shul, depending on just where on the spectrum that particular congregation lands. He would certainly have the necessary knowledge of Torah, but it’s actually quite possible that he would not be sufficiently familiar or comfortable with the interpretations preferred at the more reform-ish end of the spectrum.

    But that would apply to any rabbi.  I am familiar with many Reform and a few Conservative congregations where the rabbi wasn’t a good fit for the congregation because the two sides differered greatly on the proper level of observance and tradition.

    Certainly it’s unlikely that a Reform congregation would be comfortable with many of the legal interpretations that an Orthodox rabbi would provide, and would be unwilling to comply with the level of observance that he would expect.  But that’s a different issue from qualification to perform the functions of a rabbi.  (By contrast, a Reform rabbi would almost certainly not be considered qualified to serve an Orthodox shul.  The Orthodox don’t accept the validity of Conservative or Reform conversions, and probably wouldn’t accept a Reform ordination.)

    And I should point out that the different interpretations are regarding observance of the Law of Moses.  The Orthodox, Conservative, and Reform are generally united regarding more theologically-oriented issues (certainly compared to the theological diversity among the various Christian denominations.)

  • http://bigthink.com/blogs/daylight-atheism Adam Lee

    Agreed completely. Even as an atheist, I agree that churches should be able to hire and fire on the basis of belief, and I could even agree that teachers in religious schools should fall under this category, so long as they teach any religion at all.

    The problem is that, in this case, the teacher’s firing had nothing to do with her religious beliefs. It was clearly an attempt to rid themselves of an employee with health problems, justified retroactively by a “Lutherans-don’t-sue-Lutherans” legal fig leaf.

  • http://twitter.com/jclor jclor

    Technically, I’m a minister–thanks to my paid membership in the Church of the Subgenius (and I have the certificate to prove it)–but I doubt I’d be considered seriously for a position at any place of organized worship.  

    Still, it doesn’t bother me that, legally, the distinction of whether I can be considered a qualified candidate for some hypothetical church position is left up to the denominations and religious organizations in question.  If I don’t like it, I can go up the street, form my own clench, and start holding devivials and 24-hour marriages like any proper worshipper of Bob Dobbs, Jr.  (Praise Bob!)But I don’t derive my living, monetarily or spiritually, from my ministry.  So, I agree with Fred that, some day, someone will have to clarify these distinctions for those who do.

  • Anonymous


    The problem is that, in this case, the teacher’s firing had nothing to do with her religious beliefs. It was clearly an attempt to rid themselves of an employee with health problems, justified retroactively by a “Lutherans-don’t-sue-Lutherans” legal fig leaf.

    “Roper: So now you’d give the Devil benefit of law!
    More: Yes. What would you do? Cut a great road through the law to get after the Devil?
    Roper: I’d cut down every law in England to do that!
    More: Oh? And when the last law was down, and the Devil turned ’round on you, where would you hide, Roper, the laws all being flat? This country’s planted thick with laws from coast to coast– man’s laws, not God’s– and if you cut them down—and you’re just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I’d give the Devil benefit of law, for my own safety’s sake.”

  • pharoute

    Normally not one nit pick, but indeed I need to pick that nit. Buddhism does not hold that everything is nothing. There’s two ways I can see you coming to hold that view: 1) Buddhism teaches that there is nothing external that will give you Nirvana or save you from Samsara (birth/rebirth). No god, gods, grey aliens, etc. 2) The concept of “no self” which holds there is no immortal, eternal, or otherwise unconditioned consciousness which survives death to be either reincarnated, hanging around in purgatory or with the angels, depending on your belief system.

  • pharoute

    Normally not one nit pick, but indeed I need to pick that nit. Buddhism does not hold that everything is nothing. There’s two ways I can see you coming to hold that view: 1) Buddhism teaches that there is nothing external that will give you Nirvana or save you from Samsara (birth/rebirth). No god, gods, grey aliens, etc. 2) The concept of “no self” which holds there is no immortal, eternal, or otherwise unconditioned consciousness which survives death to be either reincarnated, hanging around in purgatory or with the angels, depending on your belief system.

  • ako

    Your special entitlement to be subjected to disability discrimination and retaliatory firings?

  • ako

    Your special entitlement to be subjected to disability discrimination and retaliatory firings?

  • Julian Elson

    Don’t anti-discrimination laws generally have exceptions for bona fide occupational qualifications? Wouldn’t a religious institution easily be able to show that religion is a BFOQ in the case of ministerial positions? I don’t have anything against ministerial exceptions, but I’m not sure why they’re necessary.

  • Wednesday

    Basically, it’s because otherwise, religious schools wouldn’t be able to require that everyone from janitors to math professors who only teach math, which is probably the most quintessentially secular subject in existence, be The Right Kind Of Christian who sign a binding document promising not to be gay or fornicate or be publicly pro-legal-access-to-abortion. Yes, they can do that, and yes, they can still receive plenty of federal funding and claim EOE status in the advertisements for that position.

    Given how transparently HTELC was abusing the minister exemption to discriminate on the basis of disability, I think that any employer invoking the ministerial exemption should not be permitted to claim EOE status in advertisements for those positions. There needs to be a new status, one that warns prospective employees that when an employer can discriminate on the basis of religion, the employer may find a way to discriminate on any other basis using religion as an excuse. IE, “these guys have a legal right to be assholes and the courts cannot protect you.”

  • Anonymous

    Basically, it’s because otherwise, religious schools wouldn’t be able to require that everyone from janitors to math professors who only teach math, which is probably the most quintessentially secular subject in existence, be The Right Kind Of Christian who sign a binding document promising not to be gay or fornicate or be publicly pro-legal-access-to-abortion. Yes, they can do that, and yes, they can still receive plenty of federal funding and claim EOE status in the advertisements for that position.

    Funny thing is, that “from the janitor on up” is a peculiar US interpretation of religious freedom.  From the Ontario Human Rights Code, that kind of thing is specifically illegal — a religious school cannot require the janitor to have the right beliefs, since the janitor’s duties are primarily non-religious.  Specifically, “the school must show that the requirement of belonging to a particular faith has a rational connection to the essential duties of a job.”

    I expect this particular case would have been decided differently in Ontario.  I can’t find any specific guidelines on application of disability law to religious institutions, but the human rights code up here takes a dim view of trying end-runs around discrimination.

    If I had to bet money on it, based on the particulars of her case (she was fired in retaliation for bringing up discrimination; the school claimed that doing so was un-Christian and fired her for violating religious tenets) I expect the tribunal or courts would consider the dismissal to be without cause.  She’d probably be awarded a hefty severance package.  (But please — I am not an attorney in any jurisdiction, let alone a labour attorney.)

    Federally, I’d also believe the law would favour the teacher.  I can’t find a direct parallel, but religious colleges have been required to not discriminate based on sexual orientation.  From here:

    A landmark Canadian case involved Delwin Vriend, a teacher dismissed in 1991 from King’s University College, a private religious school in Edmonton, because of his sexual orientation.

    Vriend filed a complaint with the Alberta Human Rights Commission but was refused protection against discrimination because sexual orientation was not included in the province’s human rights code. The case made its way to the Supreme Court of Canada, which ruled in 1998 that discrimination on the basis of sexual orientation violates section 15 of the Canadian Charter of Rights and Freedoms.

  • Anonymous

    (deleted – duplicate comment)

  • Anonymous

    The point is whether or not a religiously-affiliated organization can just declare that *any* employee falls under the ‘ministerial exemption’.

  • http://tobascodagama.com Tobasco da Gama

    This put me in mind of the Christian Culture habit of referring to absolutely every service provided to a church’s members as a “ministry”. E.g., “parking ministry”, “child care ministry”, etc.

  • http://lightupmy.wordpress.com/ Jldicken

    Just got back from reading the court decision and for the poster above who asked, yes the teacher was called, and yes, she received a diploma to vocation, or whatever they called it (I don’t remember the exact term). Basically, she was considered by the church to be a minister.  Better still, she considered herself to be a minister– she even took the housing exemptions that are offered to ministers. 

    The court went on to explain something about terminology– ‘minister’ is a catch-all– it includes people who are *employed* by the church with the mission of furthering the goals of that church– in this case a teacher who taught religion, led children in prayer, etc, *and* was compensated for doing so.  She may not be a priest in a sense that most Christians understand the term, but a strict layperson she is not. 

    The court explains that using the term minister is a form of shorthand to include people that aren’t strictly called ministers– a buddhist monk, or a learned Muslim leader would  (or could be, at least) be considered ministers, even though their titles don’t necessarily reflect that. 

    There are a few confounding issues in this case– the teacher did get sick and got clearance to go back to work.  When she tried to go back to work, the school said that they had already filled her job with someone else and rather than resolving the issue internally as Lutherans are supposed to do, the teacher threatened to sue under the ADA.  She was right to threaten them– what the school did was a clear violation of the ADA and what the school was offering her as compensation was kind of a crappy deal. 

    What happened then was that the school revoked her “severance package” (they were basically offering to help pay some of her health insurance premiums, I guess that would help make Cobra cheaper) and properly fired her for violating church law and rescinded her call.  I’m not sure if she could have gotten another job with another school had she not threatened to sue, but in the end, I don’t blame the court for deciding this case the way they did. 

    Religious institutions have the right to select their own ministers.  Allowing the courts to say that you can’t fire so-and-so is essentially allowing the state to force a religious organization to keep a minister it doesn’t want and that’s a very dangerous path to start down.  All of the opinions are more concerned with this matter, it seemed to me, than almost anything else.  Keeping church and state separate, allowing religious organizations to settle their own disputes and make their own decisions, avoids the kind of entanglements that the first amendment was designed to prevent.

  • Dan Audy

    Don’t anti-discrimination laws generally have exceptions for bona fide
    occupational qualifications? Wouldn’t a religious institution easily be
    able to show that religion is a BFOQ in the case of ministerial
    positions? I don’t have anything against ministerial exceptions, but I’m
    not sure why they’re necessary.

    The problem with that is that it puts the courts in an unfortunate position of having to decide whether issues of doctrine are ‘important enough’ to qualify as a BOQ. 

    For a quick example consider a court with an ADA claim that a Catholic priest was fired for being wheelchair-bound and the difficulties that causes while the church is claiming that they were fired for preaching spiritual transubstantiation rather than literal transubstantiation.  Now the court is placed in the position of having to legally deem whether transubstantiation is a BOQ.  While the courts are capable of doing this and deal with similar difficult judgements on issues that they aren’t fully conversant with regularly – doing so on a religious matter engenders a much greater potential backlash compared to when doing so on a ‘business method’ or technical issue.

  • Wednesday

    Funny thing is, that “from the janitor on up” is a peculiar US interpretation of religious freedom.  From the Ontario Human Rights Code, that kind of thing is specifically illegal — a religious school cannot
    require the janitor to have the right beliefs, since the janitor’s
    duties are primarily non-religious.  Specifically, “the school must show
    that the requirement of belonging to a particular faith has a rational
    connection to the essential duties of a job.”

    That seems sensible to me, and what I had assumed the rule was in the US, until I learned otherwise last year. (I wasn’t exaggerating with the scenario I outlined; that really was the case at one college in Indiana.)

  • JenL

    Don’t anti-discrimination laws generally have exceptions for bona fide
    occupational qualifications? Wouldn’t a religious institution easily be
    able to show that religion is a BFOQ in the case of ministerial
    positions? I don’t have anything against ministerial exceptions, but I’m
    not sure why they’re necessary.

    Of course, I’ve seen religious schools exercise this is some very strange ways.  The jobs they just can’t hire a church member to do (for what they’re willing to pay) go to anybody qualified.  And that person does the job – possibly quite well – until the job market changes, and suddenly a church member *is* willing to do the job for what the school pays. 

    And suddenly, it’s no longer okay that the person teaching English 101 isn’t a church member (or isn’t a “good” church member) and that person has to be fired so someone else can be hired.  If the school’s smart, they only hired the non-member on a renewable contract basis, so they can “non-renew” rather than “fire” him or her.

    And it really has nothing to do with ministry.  It’s the school’s preference that they have members of their faith doing the teaching – but in a pinch, they hired someone.  Now that a church member wants the job, who cares that the non-member was doing great….

  • http://apocalypsereview.wordpress.com/ Invisible Neutrino

    Pretty blatant example of totally socially acceptable forms of nepotistic hiring practices.

  • JenL

    Pretty blatant example of totally socially acceptable forms of nepotistic hiring practices.

    Well, yeah, and if it were a small office, and the boss let someone go to hire his nephew, or his best friend’s kid straight out of college, it wouldn’t bug me so much.  But when a professedly Christian college (a large employer) has no problem routinely hiring anyone with qualifications if no member applies, but then firing the qualified staff *to hire FAR LESS QUALIFIED members*…  Eh, I just found it inappropriate.

    Of course, not all that many students seemed to really care about the quality of the education we were (or weren’t) getting there.  Most were focused on either studying the religion or just marking time until they had their degree…

  • Sgt. Pepper’s Bleeding Heart

    I have never in my life been part of a parish where the leader of the music ministry was an employee of the church. As far as I’m aware, the only employees in any of the parishes I’ve been part of have been the parish secretaries.

    So this whole concept is strange to me.

  • Sgt. Pepper’s Bleeding Heart

    LOL, love parking ministry!


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