The Court Has Spoken. Now What?: Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC
With its unanimous ruling in Hosanna-Tabor Church & School v. EEOC last month, the United States Supreme Court handed down one of its most important church-state decisions in decades. The First Amendment bars ministers from suing the religious communities they serve regarding the terms and conditions of their employment, it said.
The Court affirmed what lower courts had held for decades: Religious bodies, not the government, must have the power to decide which individuals will minister to the faithful. This doctrine is known as the “ministerial exception.” The Court also held that the former teacher in this case, Cheryl Perich, was a minister and thus her lawsuit under the Americans with Disabilities Act (ADA) could not proceed.
An important aspect of the Hosanna-Tabor ruling is the Court’s recognition that there is simply is no good way for the state to police these matters – it inevitably ends up intruding on core religious decisions like who should speak to and for the church. When a minister is fired, the religious employer cites a religious reason for doing so, such as sermons that are inconsistent with Biblical teachings and a failure to challenge congregants to follow Jesus Christ. If the minister then sues the church for discrimination, he or she claims the religious reason wasn’t the “real” reason for the church’s actions; it was just a pretext for discrimination.
The only way for a civil fact finder to evaluate these claims is to try to assess the quality of the sermons, their consistency with scripture, and the nature of the minister’s spiritual leadership within the faith community. These are not areas where the state can or should meddle.
The Hosanna-Tabor decision deserves a “hosanna” because it has affirmed essential elements of religious freedom and church-state separation. At the same time, the decision should prompt careful and prayerful consideration because we know freedom can be abused. Now that the Court has spoken, people of faith must seek not only to understand the decision but also to attend to that risk. As they do so, here are three points for consideration.
First, the ministerial exception only applies to employment lawsuits by ministers against the bodies they serve. When non-ministerial employees like a church janitor sue their employer for discrimination on the basis of disability or age, for example, the church will not be able to claim the protections of the ministerial exception. Also, one certainly should not assume the exception will block criminal prosecutions or lawsuits brought by congregants and other third parties against a religious institution based on alleged wrongdoing by a minister (like sexual abuse or sexual harassment) and a failure of the church to supervise such a minister adequately.
The Lutheran church took the position that the exception did not bar such lawsuits, and the Court said, “[t]here will be time enough to address the applicability of the exception to other circumstances if and when they arise.”
Second, the legal definition of the term “ministers” is not necessarily the same as the theological definition. For example, many religious traditions claim each member is a minister, but certainly not every church member is a minister for purposes of the ministerial exception.
The Court’s opinion did not offer a precise definition of the term, but it did offer some guidance. A person can be a minister even though he or she is not a pastor and does not serve on a church’s staff (Perich was an elementary school teacher). Employees do not have to have “exclusively religious duties” to be considered ministers. Also, courts should not decide who is a minister by applying wooden tests like counting the number of minutes a person spends on religious and secular activities each day.
At the same time, courts will not simply defer to a religious organization’s determination on this matter. Instead, they will look at all the relevant facts and circumstances. In this case, the Lutheran school held the teacher out as a minister; the teacher had a significant amount of religious training; and her job duties included conveying a religious message and mission. Accordingly, the Court found the teacher was a minister.
When religious communities do not have facts like these to point to, they may fail to make their case that the employee is a minister and thus be unable to claim the protections of the ministerial exception.
Finally, while the Court’s decision says a great deal about the freedom religious institutions enjoy from governmental oversight under the First Amendment, it says nothing about the ethical responsibility of these institutions, and properly so. That is not the Court’s role. Speaking about ethical responsibilities is, however, very much the role of faith communities, and it is important for religious leaders to affirm their commitments to fairness, transparency, and accountability in employment.
Religious bodies should have written policies on nondiscrimination and whistle-blowing and ensure that those policies are available not only to employees but to the wider membership of the religious institution as well. Internal grievance procedures are also essential. Both ministerial and non-ministerial employees ought to be able to utilize these processes by filing complaints when they believe those policies have been violated. Those who receive and evaluate such complaints should have some independence from the chain of command overseeing ministers and other employees.
Religious organizations should inform potential and existing employees that their positions are considered to be ministerial and the legal significance of this fact. Further, just as organizations like the Evangelical Council for Financial Accountability articulate sound financial practices for religious bodies sharing a set of theological convictions, similar religious associations should discuss and articulate best employment practices regarding disputes between a minister and the religious community he or she serves. Associations such as these and denominational bodies should be especially mindful of the need to assist small congregations and religious nonprofits in these matters, as these smaller institutions often lack access to legal expertise.
If freedom is one side of a coin, the other side is always the responsibility to exercise that freedom wisely. May religious bodies do so in the wake of the Court’s judgment.
Melissa Rogers serves as director of the Center for Religion and Public Affairs at Wake Forest University Divinity School and as a nonresident senior fellow in the Governance Studies program of The Brookings Institution.