On October 6, 2011, the Supreme Court heard oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission
, one of the most important religious rights cases to reach the court in years. The question with which the court is grappling is whether the so-called ministerial exception—which has been applied by the courts to prevent certain employees from asserting discrimination and related claims against religious institution—is broad enough to bar claims by employees such as lay teachers whose jobs are largely, but not entirely, secular. Based on the constitutional requirements of the free exercise and establishment clauses of the First Amendment, the ministerial exception has been adopted by most state and federal courts. However, the definition of "minister" remains unsettled, and courts have struggled with how best to balance the societal desire to prevent workplace discrimination with the constitutionally protected rights of religious organizations to be free from excessive government interference.
In Hosanna-Tabor, parochial school teacher Cheryl Perich was hired in 2000 by a church-operated elementary school as a lay teacher. Shortly thereafter, Perich became a "called" teacher after completing certain religious studies and being elected a "commissioned minister" by the church congregation. After becoming a "called" teacher, Perich's duties remained substantially the same as when she was a lay teacher. In addition to teaching a number of secular subjects, Perich led students in prayer and at chapel services and taught religion class.
In 2004, Perich alleged that the school violated her rights under the Americans with Disabilities Act when it fired her for threatening to go to the Equal Employment Opportunity Commission (EEOC) after the school refused to allow her to return from a medical leave of absence. In response to the EEOC's lawsuit on Perich's behalf, the school contended that it terminated Perich for insubordination after she refused, allegedly in violation of Lutheran church doctrine, to address her grievances via internal procedures and instead threatened to take legal action. The district court granted summary judgment in favor of the school, holding that Perich was a ministerial employee and therefore her claims were barred by the ministerial exception.
The U.S. Court of Appeals for the Sixth Circuit subsequently reversed, finding that Perich's "primary duties" at the school were secular (she spent more than six hours of her seven-hour day teaching secular subjects, using secular textbooks, without incorporating religion into the secular material) and therefore she was not a ministerial employee, even though she held the title "commissioned minister" and participated in and led some religious activities throughout the day. Recognizing a split among the circuit courts of appeal on the scope of employees subject to the ministerial exception, the Supreme Court agreed to hear the case.
At oral argument, the court appeared disinclined to jettison the ministerial exception altogether, as the EEOC initially argued for in its brief. Through their questioning, the justices demonstrated a strong interest in upholding religious organizations' First Amendment rights to govern their organizations and appeared loath to become entangled in debates over how important various religious tenets were to each institution. Chief Justice Roberts and Justices Scalia, Kagan and Alito all expressed serious concern over the idea of a judge deciding for a church which religious tenets should be respected and which should not—for example, whether the Lutheran church's purported policy of requiring grievances to be handled internally was due more or less deference than the Catholic Church's policy of requiring priests to be male.
Because it is apparent that the ministerial exception will survive in some form, the real issue facing the justices is how to define the doctrine's parameters. At the extremes, the doctrine's application is clear—a court will not question a Catholic church's decision to terminate a priest but, typically, will adjudicate a janitor's discrimination claim against the same church. The difficult question is where the high court will land on employees and claims that are closer to the middle of the spectrum. On this thorny issue, the justices' comments provided no suggestion of consensus, with each justice (except Justice Thomas, who as usual asked no questions) expressing frustration with all attempts to define "ministerial employee." For example, if a ministerial employee is defined as one who performs important religious duties, how does a court determine whether those duties are, in fact, important, without interpreting church doctrine? Similarly, Chief Justice Roberts inquired whether courts could consider claims involving a religion that believed all of its members to be witnesses to the faith and thus "ministers." On these questions, the justices did not appear to be satisfied with many answers. In short, it is unclear whether the court will uphold the Sixth Circuit's categorical version of the "primary duties" test or adopt a more nuanced approach that upholds First Amendment rights while protecting society's interest in avoiding discriminatory and retaliatory employment practices.
A decision is expected by June 2012. It remains to be seen whether the Supreme Court will address all of the myriad issues raised by this case, but at the very least the court is expected to provide some guidance on this murky area of employment law.