The Common Good
April 2012

A Hire Law for Churches

by Melissa Rogers | April 2012

The Supreme Court decision on the ministerial exception deserves a "hosanna" — and prayerful consideration.

THE U.S. SUPREME Court, in Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission, this January unanimously 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 that religious bodies, not the government, must have the power to decide which individuals will minister to the faithful, a doctrine 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 could not proceed.

An important aspect of the ruling is the Court’s recognition that there simply is no good way for the state to police these matters—it inevitably ends up intruding on core religious decisions, such as who should speak 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. If the minister then sues the church for discrimination, he or she claims that religious reason wasn’t the real reason for the church’s actions. The only way for a court to evaluate these claims is to try to assess, for example, the sermons’ consistency with scripture—not an area where the state can or should meddle.

The Hosanna-Tabor decision deserves a “hosanna” because it affirmed essential elements of religious freedom and church-state separation. At the same time, the decision should prompt prayerful consideration, because we know freedom can be abused. Here are three points for people of faith to consider.

First, the ministerial exception only applies to employment lawsuits by ministers against the bodies they serve. It doesn’t apply when non-ministerial employees such as church janitors sue employers for discrimination on the basis of disability or age, for example. Also, one certainly should not assume the exception will block criminal prosecutions or lawsuits brought by congregants against a religious institution based on alleged wrongdoing (such as sexual abuse or sexual harassment) by a minister and a failure of the church to supervise that minister adequately.

Second, the legal definition of the term “ministers” is not necessarily the same as the theological definition. Many religious traditions claim each member is a minister, but certainly not every member is a minister for purposes of the ministerial exception. The Court did not offer a precise definition, but it did offer some guidance. A person can be a minister even though he or she is not a pastor, does not serve on a church’s staff, and does not have “exclusively religious duties.” Also, courts should not merely count the minutes a person spends on religious activities daily.

However, courts will not simply defer to a religious organization on this matter either. Instead, they will look at all relevant facts and circumstances. In this case, the Lutheran school held the teacher out as a minister; she had significant religious training; and her job duties included conveying a religious message. Without facts like these, religious communities may fail to make their case that the ministerial exception applies.

Finally, while the Court’s decision says a great deal about First Amendment freedoms, it says nothing about ethical responsibilities, and properly so—that is the role of religious communities. Religious bodies should affirm their commitments to fairness, transparency, and accountability in employment. They should have written policies on nondiscrimination and whistle-blowing, as well as strong internal grievance procedures. Religious organizations ought to inform potential and existing employees whether their positions are considered ministerial and the legal significance of that fact. Associations and denominational bodies should assist small congregations and religious nonprofits, which often lack access to legal expertise, and articulate best practices regarding employment disputes involving ministers.

If freedom is one side of a coin, the other side is always the responsibility to exercise freedom wisely. May religious bodies do so in the wake of the Court’s judgment.

Melissa Rogers is director of the Center for Religion and Public Affairs at Wake Forest University Divinity School. A longer version of this commentary appeared on the God’s Politics blog.

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