Employment Law for Ministries


Supreme Court Hears Ministerial Exception Arguments

The Supreme Court is considering two cases in which Catholic schools have claimed that the “ministerial exception” precludes teachers' lawsuits against them. (See our March 2019 newsletter for more information on the ministerial exception.) Last week, the Court heard oral arguments in the cases, which present the question: Who is a "minister?” under the exception.

When it first addressed the ministerial exception in its 2012 Hosanna-Tabor decision, the Court held that the Lutheran schoolteacher who initiated the lawsuit in that case was a minister. That meant she could not pursue an employment claim against the school, because, as a religious group, the school had a First Amendment right to choose who would minister for it.

The Court reached that conclusion by addressing four factors. Some factors were objective (the teacher's title and training). But the employee's job function turned out to be the most significant factor. In fact, decisions from lower courts before and after Hosanna-Tabor often found the employee's job function the crucial factor: employees who have important religious duties are likely ministers.

But the focus on function raised another question: is it the employer, or the court, which decides if an employee has important religious duties? Allowing employers to do so means that the exception will be applied broadly. But entrusting courts to do so would likely entangle judges with religious doctrine. Who is to say whether, for example, an organist has important religious duties and is, then, a "minister"?

The lower courts in the two cases now before the Court adhered rather rigidly to the four factors the Court applied in Hosanna-Tabor—even though the Court in that decision said that it was not laying out a rigid formula. The decisions in those two cases effectively diminished the importance of the religious function factor in the ministerial exception analysis. Not surprisingly, then, the teachers prevailed, allowing them to move forward with discrimination lawsuits against their respective schools.

Lawyers’ arguments and questions by the Justices at the oral arguments evidenced a struggle to determine where lines are to be drawn between ministers and non-ministers. Justice Alito suggested that use of the term “minister” in this legal context is misguided. He noted that the term is predominantly a Christian, Protestant one; what the term means in other religious contexts is less clear, and in other contexts it isn't used at all.

Many questions posed hypotheticals—e.g., if a religious school does not require its teachers to share the same religion (say a Christian school hires a Jewish band teacher), is the teacher a “minister” of the school’s religion? Is a sports coach at a religious school a minister if his only outward religious expression is to lead teams in prayer before practices and games? Must an employee actually be engaged in proselytizing to be a minister?

The questioning during oral arguments suggested that the Court appears to be split along familiar lines, interesting if for no other reason that Hosanna-Tabor was a unanimous decision. More liberal Justices expressed concern that the ministerial exception might apply too broadly, exempting hundreds of thousands of school teachers who teach at religious schools from basic employment law protections, while conservatives focused on the need to give religious institutions sufficient insulation from government oversight.

For example, Justice Ginsberg was “very disturbed” that an employee might be discharged for reasons that have nothing to do with ecclesiastical matters but nonetheless be barred as a "minister" from bringing basic employment claims (e.g., a claim of retaliation for reporting sexual harassment). The two cases before the Court involved sympathetic teachers: one claimed she was fired because she developed cancer, the other because she was considered after many years of service to be "too old."

Some questions suggested that only those with “authority” or “leadership” responsibilities for a religious group should be deemed ministers. Undermining that proposal is the fact that in some religions almost everyone could be called a leader, while in others that will not be true. And, the question remains whether the religious group, or the court, decides who is a religious leader.

Decisions by the Court in the two cases will likely be published this June.

If you have any questions about this development, please contact us.

This summary is provided as an informational tool. It is not intended to be and should not be considered legal advice, and receipt of this information does not establish an attorney-client relationship.