Update: Ministerial Exception and Minority Religions

Update: Ministerial Exception and Minority Religions January 11, 2012

Today the Supreme Court of the United States issued a ruling in Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which centered on the question of whether an employee of a religious organization could be fired without recourse to anti-discrimination laws if they were ordained within said faith. The case heard by the Supreme Court involved a teacher at a Lutheran school who was fired due to a sleep disorder. The Equal Employment Opportunity Commission, backed by the Justice Department, felt that her role at the school was largely secular in nature, and shouldn’t fall under the exceptions usually given to clergy within religious groups. However, the court, in a rare unanimous ruling, sided with Hosanna-Tabor Church, and for the first time, acknowledged that a ministerial exception from federal discrimination laws does exist.

The Supreme Court of the United States

“Closing the courthouse door much of the way, but not completely, to workplace bias lawsuits by church employees who act as ministers to their denominations, the Supreme Court on Wednesday unanimously gave its blessing — for the first time — to a “ministerial exception” to federal, state and local laws against virtually all forms of discrimination on the job.  The Court’s ruling, which only Justice Clarence Thomas said did not go far enough, did not order courts to throw out all such lawsuits as beyond their jurisdiction, but it left them with only a narrow inquiry before the likely order of dismissal would come down.  As soon as the denomination makes its point that it counts an employee as a “minister,” within its internal definition, that is probably the end of the case.  And the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission.”

In short, ministerial exception involves not only ministers, but any employee who is performing religious work within a faith group. This was plainly expressed in the concurring opinion of Justice Alito and Justice Kagan, who noted that many religions do not use the term “minister” and that “courts should focus on the function performed by persons who work for religious bodies.”

“The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religiousceremonies and rituals, as well as the critical process of communicating the faith.  Accordingly, religious groupsmust be free to choose the personnel who are essential tothe performance of these functions. The “ministerial” exception should be tailored to this purpose. It 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 a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.”

This concurring opinion will no doubt be very welcome to a coalition of minority faiths, the Muslim-American Public Affairs Council, United Sikhs, Church of the Lukumi Babalu Aye, International Society for Krishna Consciousness, O Centro Beneficente Uniao Do Vegetal, and Templo Yoruba Omo Orisha, who filed an amicus brief in this case  warning that they were particularly susceptible to judicial encroachment, and that their faiths often categorize what might be seen as “secular” work within a sacred context.

“…many seemingly secular activities take on deep religious significance within specific faith traditions. For Sikhs, for example, operating a community kitchen and providing meals (langar) to the needy and vulnerable is an indispensible element of religious worship. For some temple-centric religions, the actual process of constructing a temple carries deep religious significance. Hindu temple architects and artisans follow ancient religious traditions in their work. For others, temple overseers may be tasked specifically to ensure that construction workers follow religion-based standards and refrain from profane acts that might desecrate the temple. For other religious organizations, meditation is a form of worship, distributing aid through prescribed means is an essential sacred ritual, and counseling and healing are acts inspired by deity. But because such religious functions – at least from the external view – may be indistinguishable from the same activities carried out for secular purposes, courts trying to parse the sacred from the profane jeopardize the ability of religious organizations to define and carry out their own sacred missions.”

The court agreed with this view, noting that 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 performed.” Justice Roberts went on to say that the lower court’s ruling “placed too much emphasis on Perich’s performance of secular duties.”

I don’t think it is hyperbole to say that this is a landmark ruling, enshrining the concept of ministerial exception in our highest court, and all but eliminating workplace discrimination suits if the plaintiff performs a significant religious role within an organization. That said, the court did stress that this doesn’t protect religious organizations from criminal investigation or other kinds of litigation, and should only be applied to the hiring and firing of “ministers”. How broad or narrow the understanding of “ministerial” duties will be is something that will no doubt be settled in the courts for years to come. For minority faiths, it seems to signal that the ministerial exception isn’t isolated to traditional minister-congregational models, and can be applied to any number of religious situations. What the ramifications might be for adherents to non-Christians models of worship and work remains to be seen.

You can read my original post regarding this story, here. For extensive links to documents and analysis of this case, do check out the information-packed SCOTUSblog.

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32 responses to “Update: Ministerial Exception and Minority Religions”

  1. What the hell does a sleep disorder have to do with ministerial functions?

    What about the Americans With Disabilities Act?

  2. So…. if you work for a religious organization and they decide they want to fire you but have no legitimate excuse for doing so, all they have to do is suddenly decide that you are performing ministerial services within the group and that your services are no longer required? Regardless of whether or not you job was ever considered to have been ministerial before?

    I see a LOT of people not willing to tow a fanatically strict orthodox line suddenly finding themselves declared “ministers” and then being tossed out on their asses. Woe be to those who prefer to follow the spirit of their faith rather than church dogma!

  3. That’s an anti-discrimination law from which religious institutions have just been exempted for “ministerial” staff.

    She’s a teacher, and these Lutherans regard that as part of their ministry. If the Unitarian Universalists had schools they’d have the same attitude.

  4. Teaching in a religiously affiliated school, as a ministerial act, is not a novel concept.

  5. Kelly, everything you say is beyond true; it is what the SCOTUS is openly willing to tolerate, in the case of abuse, and support in the details of your second paragraph, in the name of religious freedom.

    Many of us Pagans who circle together regard every covener participating as a priestess or priest. The good Justices have agreed with us, if that is how we choose to define priesthood, in the name of the First Amendment. That’s a win, for Paganism in general, even if the context sucks.

  6. It’s an interesting opinion with interesting concurrences. Odd to see, for example, Thomas and Alito so solicitous of minority religions. It’s obviously setting up a defense for Catholics who want to not hire gays or not provide health care for gay partners of employees. The language in the concurrences goes way beyond this case, where the employee was designated a minister. Hard cases make, as the saying goes, bad law.

  7. The problem was not the sleep disorder itself, but the fact that the employee had the temerity to seek relief under secular law. That, the church said, went against its “core beliefs” and made her unfit as a “minister.”

  8. The decision seem so broad that it has the potential to reduce anyone employed by a religious organization to virtual serfdom. It seems to relieve the employer of any meaningful burden to show what “ministerial function” entails. Christianity, or any proselytizing faith, could make the argument that all of its members and employees are “ministers” of the faith simply by their everyday work in the world. They could further define absolute and unquestioning deference to superiors as a core value of the faith. You wouldn’t have to be a minister or teacher at all. A janitor in a 20,000 employee Catholic hospital system could be dismissed without recourse for blatant violations of minimum wage, racial discrimination or even workplace safety laws.

    It may be a further flight of fancy, but what’s to stop, say, Wal-Mart, from re-organizing as a “church” and declaring all of its associates as ministers or missionaries?

  9. I say GREAT! Any law passed in favor of allowing religions to practice as they see fit is alright with me!
    Ministerial exceptions might be misused in a few situations, but overall it creates an across-the-board rule for every faith; “We have the right to practice our own religion any way we want!”

    My thought in a lot of the hypothetical situations which have been presented is this; “Who would want to be part of any religious organization if their beliefs differed so largely from it that they should consider them antithetical to the organization itself?”
    (IOW ; Why would a Witch want to work for the RCC? Why would a Buddhist want to be employed by the military in Burma? Why would a Satanist want to get a job with the Southern Baptist Convention?)

    The point is that if your beliefs are radically different than the people you’re working for, they are either exceptionally tolerant or you’re in the closet.

    Either way, as much as Ministerial exceptions might make some of us blink, this is a WIN for religious freedom, not a fail.

  10. It may also help lay legal groundwork for Catholic Charities to go on adopting out only to married couples, with their definition of marriage, even if that violates state anti-gay-discrimination law. It’s not there yet, but it adds to the foundation.

  11. So…. if you work for a religious organization and they decide they want to fire you but have no legitimate excuse for doing so, all they have to do is suddenly decide that you are performing ministerial services within the group and that your services are no longer required? Regardless of whether or not you job was ever considered to have been ministerial before?

    No, and no.
    Giving the Church and not the State the ability to assign ministerial and religious duty is not a get out of jail free card for religious organizations. Nor can “religious duty” be defined easily as x-y-z activities when all religions must be considered equally; defining it as x-y-z would unfairly favor religions that consider x-y-z as religious activities over those than consider a-b-c. So it must be a call based on the facts of the case.

    To the facts of this case – Perich became a commissioned minster several years before the events leading up to her hiring, after ministerial training, and while her religious duties were also performed by lay members in the absence of a commissioned minister to do them, this doesn’t render those duties non-religious. Further, she considered herself as someone doing ministerial duties:

    “I feel that God is leading me to serve in the teaching ministry . . . . I am anxious to be in the teaching ministry again soon.”

    Given this, I don’t see it as unreasonable to consider her role in the church as one that is the proper purview of the Church and not the State.

  12. It seems to relieve the employer of any meaningful burden to show what “ministerial function” entails.

    Not really. She took ministerial training, and had explicitly and clearly religious duties. While there’s no clear rule in the majority opinion (the concurrences – Thomas and Alito/Kagan – are somewhat more generalized about it but don’t have a majority), nothing in the factual analysis of the case leads me to believe they could randomly apply it to janitors and so on. The Alito/Kagan concurrence cites some lower circuit cases on the ministerial exemption that would be relevant.

    A janitor in a 20,000 employee Catholic hospital system could be dismissed without recourse for blatant violations of minimum wage, racial discrimination or even workplace safety laws.

    The ruling is limited to the hiring/firing of ministerial employees:

    The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

    The Catholic Church isn’t going to persuade anyone that a janitor is a minister, but even if they did minimum wage, hostile enviornment, and workplace safety rules would be violations separate from the hiring/firing issue, and the janitor could win cases on them.

    It may be a further flight of fancy, but what’s to stop, say, Wal-Mart, from re-organizing as a “church” and declaring all of its associates as ministers or missionaries?

    Quite apart from the practical issues – Walmart would immediately be inundated with bad press, and lose a significant number of employees and customers – it would be obviously insincere and then shot down by the courts as not actually a religion.

  13. As Kenneth notes, it wasn’t the sleep disorder, it was the lawsuit threat, which violated this:

    See The Lutheran Church—Missouri Synod, Commission on Theology and Church Relations, 1 Corinthians 6:1–11: An Exegetical Study,
    p. 10 (Apr. 1991) (stating that instead of suing each other, Christians should seek “an amicable settlement of differences by means of a decision by fellow Christians”). See also 1 Corinthians 6:1–7 (“If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints?”).

    But it didn’t actually matter in the ruling, as the ruling wasn’t that she was let go for violating a religious tenet, but that this was a decision about fitness for ministerial duty, and therefore the decision was a matter for the Lutheran Church and not the US Government.

  14. I don’t know. They gave it to Scientology. In Sweden, some group managed to get file sharing defined as a religion.

    More to the point, hundreds of giant health care organizations got and retain not-for-profit status even though they are clearly for-profit corporations which often do next to zero in the way of not-for-profit work.

    The definition they seemed to draw in this case is so absurdly broad that virtually any employee a religious group considers to be important to furthering its mission in the world can be considered a “minister.”

  15. Under the court’s construction, it’s very hard to envision an employee who would clearly could NOT be considered a minister for the purposes of evading discrimination law. The majority basically said that the person’s job duties are only one consideration, and not at all a definitive one. “Any worker considered to be advancing the religious mission” or “Any employee who…..serves as a messenger or teacher of the faith.”

    Well who doesn’t that arguably include? In a Catholic health care corporation, and there are many, it would arguably include any person who deals with the public or serves in a visible role of any kind – doctors, nurses, receptionists, security, you name it. If any of these people are even rumored to have colored outside the lines of doctrine, if they are gay, or used artificial insemination, or even posted something on a chat board on their own time, they could all be fired without cause or recourse.

    I can see where you don’t want to force a church to hire, say, PZ Myers to conduct its religion classes. At the same time, I see nothing positive about granting religious organizations a blanket immunity to civil law. That’s what we had in medieval Europe and what we have today in the Middle East.

  16. Baruch, maybe the problem is that while it’s a win for Paganism in general…it’s still a loss because of the context.

  17. Well who doesn’t that arguably include?

    Anyone whose role as an employee isn’t advancing the religious mission or serving as a messenger or teacher of faith. The parts of the opinion weighing job duties as one factor were focused around secular job duties not being a disqualifying factor; there was still extensive citation of her role in advancing and teaching the faith as an employee in favor of her qualifying as a minister.

    In a Catholic health care corporation, and there are many, it would arguably include any person who deals with the public or serves in a visible role of any kind – doctors, nurses, receptionists, security, you name it.

    I don’t see the language applying to any of them – the Catholic Church does not consider them ministers (as the Lutheran church did in this case), they have no ministerial duties (as the employee did in this case), they aren’t even required to be Catholic generally. See Catholic Medical Center or TriHealth for example.

    At the same time, I see nothing positive about granting religious organizations a blanket immunity to civil law.

    Well, even if the reading of “minister” is broader than I think it is, it’d be limited to an exemption from hiring/firing rules and penalties, and not necessarily any other civil law. While they didn’t address, rather than explicitly discount, limits on other kinds of cases, that’s standard and much of their reasoning was particular to the limit of who could be an employee, as it focused around the church’s latitude in choosing who would be carrying out specific religious duties. So I don’t see a blanket immunity here.

  18. What about those who have no choice but to get any job they can to avoid being on the street? That goes for a lot of people these days.

  19. Actually this case is entirely irrelevant to the issue of whether Catholic Charities have the legal right to discriminate against homosexual (or non-Catholic, etc) couples in adoption.

    See the distinction they draw with Employment Divison v. Smith:

    It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See id., at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

    Running an adoption agency and adopting children out is clearly an outward physical act (versus internal church employment issues), and thus governed by Smith when evaluating state law at the federal level. And under Smith the adoption case would be easy to win, as laws banning discrimination are clearly neutral laws of general applicability.

  20. Smith doesn’t apply here; the employer is the church, not the state.

    This *is* groundwork for Catholic Charities adoption policies politically because it’s a precedent of giving churches a pass on discrimination law.

  21. I am thinking of a number of instances where Pagan organizations have encountered members who held clergy credentials through the organization, but were behaving in a clearly unethical manner. In a number of those situations, the Pagan organization has been reluctant or even unwilling to pull clergy credentials from someone due to their unethical conduct… because they feared the person who lost the credential would subject them to an expensive lawsuit.

    Pagan organizations (unlike, for instance, the Lutheran or Catholic church) tend to have very little money for legal defense on hand. It was an understandable concern–though I disagreed with the outcome in the cases I had immediate knowledge of.

    This ruling should remove that concern. I’m glad to have the distinction between a religious body’s outward acts and inward workings made clear (thank you, Strech). With that information, I can say that I do see this as a win for all religious bodies–most especially our own, in fact, as the burden of documenting our beliefs, values, and practices would be heavier than for majority religious groups. (Not having a Holy Book is too often seen as not having core values, by people unacquainted with us.)

  22. i agree w/ minesterial exception when it’s used as intended ……….for dealing with clergy .But i drawl the line when it’s used against a lay teacher at a school . This teacher had a documented health problem at a religious based School , she was not clergy . I personaly have a problem w/ this one , seems to me this school is abusing a policy in a way it wasn’t intended to be used and SCOTUS let them get away w/ it .This decision bothers me a bit . I do realise this decision if it went the other way may have caused problems further down the road , especialy for us minority religions.But i just don’t think it was fair to this particular teacher for the rule to used against her this way .She was sacrificed for the greater good . I understand , but for those of us w/ chronic health problems tis a hard pill to swallow , knowing this type of thing could used against us as well. Kilm

  23. My point was that ME’s say that, as a religious group, whatever group, we have the freedom to decide whether a person is part of our ministry.

    Like the ruling on the Boy Scouts and Gays (while I wish people would simply stop making “GAY” an issue) I’m glad that they have the right…as a private organization….to say no.
    That means I have the same right.
    As a devotee of Sekhmet, I have the right to tell a priest of Apep she/he is not welcome!

  24. The woman with narcolepsy who was fired held herself out to be a minister of the church that fired her, both before and after that fact. And had been a minister, by her own and the church’s definition, for multiple years. She was not a layperson. She studied for the ministry, she was commissioned to the ministry, she was declared to be a minister, and she called herself a minister.

    I’d say she was a minister. So did the Court.

    She behaved in a manner contrary to the church that commissioned her, and they took back that commissioning. But first they fired her. And that was their right. I’d say the Court got this one right. She got fired for not being a good minister of the church that made her one.

    And the Court was very careful to say that, given the situation, they had no authority to interfere — in this specific situation; other situations will have to be considered when they arise, because this was a first.
    RedBird (who also has narcolepsy)

  25. Reading the whole of the decision was refreshing, after reading all the stuff about the Christian founding of this country. Looks to me like SCOTUS has now gone on record laying out the First and Sixth Amendment rights and the history of how and why the founders made sure they were in there — history back to 1215 and the Magna Carta. Anyone wishing to push a Christian USA agenda (think: David Barton, et al.) now has a detailed and unanimous SCOTUS decision that he won’t be able to blow away. Right on, Robed Ones!

  26. The ministerial exception is common sense and it is progress to have its unmistakable recognition by the highest court of the land. We can now move on to more difficult subjects.

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