The First Amendment to the United States Constitution prevents Congress from making any law prohibiting the free exercise of religion. The question of how this freedom to exercise one´s religion intersects with one´s employment rights was considered for the first time by the United States Supreme Court in the recently decided case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. Hosanna involved Cheryl Perich, a teacher (“Teacher”) at a Lutheran (Missouri Synod) Church School (“Church School”) who was terminated after it was revealed that she had narcolepsy. She, through the advocacy of the Equal Employment Opportunity Commission (“EEOC”) which took her case, brought suit against the Church School claiming it acted in violation of the Americans with Disabilities Act (“ADA”). After an adverse decision in the Eastern District Court of Michigan, the EEOC appealed to the Sixth Circuit which remanded the matter to District Court. The Church School appealed to the United States Supreme Court which reversed the Sixth Circuit and is the decision discussed herein.
Pursuant to Lutheran Church Missouri Synod canons there are two (2) types of teachers: “called” and “lay”. A called teacher, in addition to the credentials typically required of a teacher, must also complete accredited theological training. Upon completion, a called teacher is granted the title of Minister of Religion, Commissioned. The Teacher for the Church School was a called teacher and, in addition to typical secular teaching duties, also taught a religion class, led daily prayer and devotionals in her class, took her students to a weekly chapel service, and occasionally led the chapel services herself.
During her tenure with the Church School, the Teacher developed narcolepsy and requested a full school year´s (September through June) leave. The Church School granted the requested leave and replaced the Teacher with a lay teacher for the school year during which the Teacher would be on leave. Despite requesting a full year´s leave, by January 27 of her year of leave the Teacher requested to return to work. The Church School Board denied her request, indicating that it had contracted with a replacement teacher for the year in reliance upon her request for a full year of leave. Accordingly, the Church School requested that she resign and, in exchange, offered to pay a portion of her health insurance premiums. The Teacher refused to resign and on the first day she was medically cleared for work she appeared at the Church School. She was asked to leave but she refused until she received documentation that she did, in fact, appear. When the Church School principal indicated that her conduct (refusing to leave) may lead to her involuntary termination, the Teacher indicated that she had consulted with an attorney with regard to her “rights.” After meetings of the School Board and congregation, the Church School ultimately decided to terminate the Teacher and rescind her status as a Minister of Religion, Commissioned. The Church School Board believed that the Teacher´s above-described conduct amounted to “insubordination and disruptive behavior” and her “threatening to take legal action” damaged her “working relationship” with the Church School and violated the Lutheran Church Missouri Synod doctrinal belief that Christians ought not pursue secular litigation against one another, but engage in intra-church dispute resolution options instead. Consequently, the Teacher brought suit against the Church School claiming it, when it terminated her, violated the ADA as she, suffering from narcolepsy, was covered by its protections.
The Supreme Court´s decision centered around what has become known as the “ministerial exception.” The ministerial exception had been established and employed for many years in the Circuit Courts but had never been addressed by the Supreme Court previous to Hosanna. In reaching its unanimous decision, the Court began its review of relevant precedent with the English Magna Carta of 1215. Under the Magna Carta, King John, the symbolic embodiment of the English government, agreed that the Church of England would have the “freedom of elections” for its clergy and prelates. Of course, as the Court noted, the relationship of the English Church and the government, and the religious control held by each, vacillated over a course of time, but ultimately those English Christians, seeking total religious freedom, migrated to the nascent United States. Moving forward, the Court then traced the concept of a religion being free from the state regarding the selection of its “ministers” in America through the coming of the Puritans from England to America in order to escape the religious control of the Church of England and to William Penn in Philadelphia seeking to declare the independence for the Quakers also from the Church of England. Moving forward to the Eighteenth Century, the Court noted the struggle in the American South between the Church of England attempting to exert control over the selection of clergy and prelates and the American Anglican Church. After this brief overview of the history of religion and law in America, the Court concluded that the preceding is the context in which the Religion Clauses of the First Amendment of the U.S. Constitution were written. Specifically, the Court observed that “the Religion Clauses ensured that the new Federal Government – unlike the English Crown – would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own…Our decisions in that area confirm that it is impermissible for the government to contradict a church´s determination of who can act as its ministers.”
The Court then went on provide an overview of First Amendment cases over the course of American jurisprudence, ultimately concluding that “[r]equiring 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 on the Free Exercise Clause, which protects a religious group´s right to shape its own faith and mission through its appointments.” Per the description of the Teacher´s role and position within the Church School, the Court determined that the Teacher was a minister and, therefore, within the ministerial exception. The Court concluded that by “[t]he [ministerial] exception …ensures that the authority to select and control who will minister to the faithful – a matter `strictly ecclesiastical.´” The Court also ruled that the First Amendment right to assembly only serves to buttress the Free Exercise Clause´s protection of a religion to make its employment decisions vis-à-vis its ministers.
In response to the argument that suggested the ADA ought to apply to the hiring and firing of a religion´s ministers because the ADA is a neutral and generally applicable law, the Court ruled that the selection of its ministers is an internal decision which affects the faith and mission of the religion itself. By contrast, the general principle of neutral and generally applicable laws is, per the Court, only applicable to the outward physical acts of a religion. The Teacher also argued that the Court´s ruling would suddenly create unfettered chaos with religious institutions´ hiring and firing. Of course, the Court observed that the ministerial exception had been in the Circuits for many years and no such consequence has yet to result.
Finally, the Teacher asserted that the Church School´s argument that she was terminated, at least in part, due to a violation of the Lutheran Church Missouri Synod´s canonical policy that Christians seek intra-church dispute resolution as opposed to a resolution in secular court was pretextual. The Court refused to decide whether the Teacher´s assertion was accurate as such a decision would require a constitutionally impermissible inquiry into the interworking of a church, its doctrinal teaching, whether someone violated that doctrinal teaching, and whether that doctrinal teaching was properly applied. The Court ruled that such an inquiry was clearly a violation of the First Amendment right to the free exercise of religion.
Justice Thomas wrote a concurring opinion simply to say that the ministerial exception also includes a religion´s right to determine for itself what a minister is. Justice Alito (with Justice Kagan joining) also prepared a concurring opinion to make it clear that not only does a religion have the right to determine for itself what a minister is, the Western and/or Judeo-Christian concept of a minister/clergy is also the province of the religion. Justice Alito pointed out that some Eastern faiths do not have “ministers” or “clergy” in the same way as a Western faith but that does not mean that the ministerial exception does not apply to them.
Through the Hosanna decision, the Supreme Court of the United States has formally adopted the ministerial exception ensuring religious groups have complete and ultimate authority in the employment of its ministers.
Originally published on February 14, 2012 in “Upon Further Review” and can be found here.