Hosanna-Tabor Evangelical Lutheran Church And School v. Equal Employment Opportunity Commission (2012) – Guest Essayist: Gennie Westbrook
The First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The Supreme Court has interpreted this prohibition to mean that state action that imposes restriction on the free exercise of religion is permitted only when there is a “compelling state interest in the regulation of a subject within the State’s constitutional power to regulate…” and even then, only “to prevent grave and immediate danger…”
The Supreme Court has adhered to the principle enunciated during the founding that the government would not interfere with the free exercise of religion and that churches would be free to govern their own affairs. In 1952 the Court ruled in Kedroff v. St. Nicholas Cathedral that “legislation that regulates church administration, the operation of the churches [or] the appointment of clergy…prohibits the free exercise of religion.” The hands-off approach of the government regarding matters of church administration is illustrated by the Court’s explanation in the Kedroff case: there is “a spirit of freedom for religious organizations, an independence from secular control or manipulation, in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” This independence from secular control protects the free exercise of religion and has given rise to the legal doctrine of the “ministerial exception,” which prohibits most workplace bias lawsuits by church employees.
Title VII, Section 703(a) of the Civil Rights Act of 1964 prohibits workplace discrimination “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” The Americans with Disabilities Act of 1990 expanded employee protections to prevent workplace discrimination based on disability.
In Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the constitutional question was the extent to which the “ministerial exception” applies in a dispute between an elementary school operated by a church and a teacher in that school.
Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan hired Cheryl Perich as a kindergarten teacher in 1999. The small faculty included two different categories of teachers: contract teachers and other “called” individuals who had completed a course at a Lutheran college in order to receive the title of commissioned ministers. Perich was hired as a contract teacher, but during her first year at work there, she completed the required coursework and received her “call” and commission. There was little difference in the job descriptions of the two groups; most taught classes in secular content and led their students in several brief prayer times each day. Perich taught kindergarten, and then third and fourth grades during her tenure with the school. She also taught a religion class, and attended a weekly chapel service with her class.
In June 2004, Perich suddenly became ill and was hospitalized, later diagnosed with narcolepsy. She took a leave of absence to receive medical care, and in January 2005, notified the school that her doctor had cleared her to return to work the following month. School administrators maintained that they had tried to save her position for a semester, but had hired a replacement teacher. They decided not to allow Perich to return to work, advising her that she should resign. Perich believed that the school refused to reinstate her because of her illness, and the dispute escalated. She threatened to sue the school for violation of the Americans with Disability Act (ADA), and at that point she was fired for “insubordination and disruptive behavior.” Supervisors explained that the reason for her dismissal was her threat to sue. This prospect violated a tenet of the church that disputes between church members should be settled internally, based on First Corinthians 6:1 (“If any of you has a dispute with another, do you dare to take it before the ungodly for judgment instead of before the Lord’s people?”) and 6:4 (“Therefore, if you have disputes about such matters, do you ask for a ruling from those whose way of life is scorned in the church?”)
Perich filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that the church had violated ADA by firing her because of her illness. The school countered that she was not fired for the illness but for disregarding her responsibility as a minister of the church to settle the dispute without appeal to outside authorities. The church maintained that the ministerial exception, then, prohibited the courts from interfering with their decision in a staffing question.
The EEOC argued that the ministerial exception applied only to ministers who hold what they called an “exclusively religious function,” and therefore was not relevant in Perich’s case, because she only spent 45 minutes a day in religious activities.
In a unanimous decision written by Chief Justice John Roberts, the Supreme Court for the first time gave its explicit approval to the ministerial exception. Once the church made its case that Perich was a minister by their definition, the decision of the church in a staffing question was not subject to review by the courts. The ruling explains that the Court was “reluctant to adopt a rigid formula for deciding when an employee qualifies as a minister,” but found persuasive the facts that Perich was formally ordained according to Lutheran practices and that she did perform important functions in teaching religious content to children. Justice Thomas wrote in his concurring opinion that the Constitution’s protection of a religious organization’s power to govern its internal affairs, “would be hollow…if secular courts could second-guess the organization’s sincere determination that a given employee is a ‘minister’ under the organization’s theological tenets.”
Analysis of the decision indicates that employees of a church are likely to face significant obstacles in pursuing workplace bias lawsuits of various kinds. In a final footnote to the decision, Chief Justice Roberts wrote that the ministerial exception was not an absolute rejection of all such lawsuits. “District courts have power to consider [such] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception.” An aggrieved worker can file a lawsuit alleging discrimination and have his day in court. But the Court’s interpretation of a robust ministerial exception in the Hosanna-Tabor case makes it harder for such an employee to prevail once the church makes the case that it considers the employee to be a minister.
This case pitted two vital American values against one another. On one hand, we have the core value of equality—that the law does not allow arbitrary discrimination. On the other hand is the core value of religious liberty—government does not dictate what it means to be a minister or how a church should carry out its mission. In this case, the entire Court declined to interfere in the founding constitutional principle of free exercise of religion.
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012) Supreme Court decision: https://www.oyez.org/cases/2011/10-553
Gennie Westbrook, formerly a classroom teacher, is a Madison Fellow (2000 TX), and senior advisor for education at The Bill of Rights Institute.
Lyle Denniston. “Opinion Recap: A solid ‘ministerial exception’” SCOTUSblog January 11, 2012 http://www.scotusblog.com/2012/01/opinion-recap-a-solid-ministerial-exception/
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), Oyez.org https://www.oyez.org/cases/2011/10-553
Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012), Justia.com https://supreme.justia.com/cases/federal/us/565/10-553/
McClure v. Salvation Army, Fifth Circuit Court of Appeals, 1972 http://openjurist.org/460/f2d/553/mcclure-v-salvation-army
Pew Research Center: Religion—Employment of Clergy March 31, 2011 http://www.pewforum.org/2011/03/31/churches-in-court3/
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