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Amdt1.2.3.4 Church Leadership and the Ministerial Exception

First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The broader ecclesiastical abstention doctrine has specifically been applied to questions about who may lead a religious group. The Supreme Court held in 1952 that religious associations’ “freedom to select the clergy” was protected by the First Amendment’s Free Exercise Clause.1 For another example, in 1976’s Serbian Eastern Orthodox Diocese v. Milivojevich, the Court ruled that a state court ran afoul of the ecclesiastical abstention principles outlined in Watson v. Jones when it overturned a church’s decision to defrock a bishop.2 In the ensuing decades, lower courts built on these precedents to develop a doctrine known as the “ministerial exception,” which prevented courts from interfering with “the employment relationship between a religious institution and its ministers.” 3

The Supreme Court adopted the ministerial exception in 2012 in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, when it held that the doctrine limited the scope of certain employment discrimination laws.4 Specifically, in Hosanna-Tabor, a teacher at a Lutheran school claimed that she had been fired in violation of the federal Americans with Disabilities Act of 1990.5 The school sought to dismiss her claim, arguing that the suit was barred under the “ministerial exception.” 6 The Court agreed, recognizing the existence of the exception and its basis in the First Amendment.7 The Court ruled that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so” impermissibly “interferes with the internal governance of the church,” violating both the Free Exercise and Establishment Clauses.8 The Court further held that this ministerial exception applied to the teacher’s claim in Hosanna-Tabor even though she was not “the head of a religious congregation.” 9 In the Court’s view, the the teacher qualified “as a minister” because of her distinct role within the church, including her title as a “minister” ; her religious training and commissioning; her duties to lead religous activities in furtherance of the church’s mission; and the teacher’s own characterization of her position.10 As a result, the Court held, the First Amendment did not permit applying nondiscrimination provisions to the teacher’s employment law claims.11

In Our Lady of Guadalupe School v. Morrissey-Berru, the Court suggested that one particular factor from Hosanna-Tabor-the individual’s job functions-was the most important for determining whether a particular employee qualifies for the ministerial exception.12 Our Lady of Guadalupe involved two employment discrimination claims brought by teachers fired by religious schools.13 The Court ruled that the two teachers fell within the ministerial exception14 even though, relative to the teacher in Hosanna-Tabor, they did not have the title of “minister,” had less religious training, and were not practicing members of their employer’s religion.15 Instead, the Court said that “[w]hat matters, at bottom, is what an employee does.” 16 Specifically, the Court recognized “that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” 17 The Court further stated that the two teachers in the combined cases “performed vital religious duties,” emphasizing that they provided religious instruction, prayed with their students, and were “expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.” 18 Consequently, in the Court’s view, “judicial intervention” in either dispute would have “threaten[ed] the school’s independence in a way that the First Amendment does not allow.” 19

Footnotes
1
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116 (1952) ( “Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.” ). back
2
426 U.S. 696, 717–18 (1976). back
3
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188 & n.2 (2012) (citing lower court decisions). Cf. NLRB v. Catholic Bishop, 440 U.S. 490, 502–04, 507 (1979) (holding that if a federal statute were read to grant the National Labor Relations Board jurisdiction over religious school teachers, it would present a “significant risk” of infringing the First Amendment, and accordingly, interpreting the statute to exclude “teachers in church-operated schools” ). back
4
Hosanna-Tabor, 565 U.S. at 188. back
5
Id. at 179. back
6
Id. at 180. back
7
Id. at 188–89. back
8
Id. ( “By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.” ). back
9
Id. at 190. back
10
Id. at 191–92. back
11
Id. at 194. The EEOC and the teacher had originally sought an order reinstating the teacher to her position, but at the Supreme Court, the teacher sought only front pay. Id. The Supreme Court said that while the reinstatement order “would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers,” the monetary relief was similarly unconstitutional “as a penalty on the Church for terminating an unwanted minister.” Id. The Court emphasized that the monetary relief “would depend on a determination that Hosanna-Tabor was wrong to have relieved [the teacher] of her position” -a ruling “barred by the ministerial exception.” Id. back
12
No. 19-267, slip op. at 18 (U.S. July 8, 2020). However, the Court emphasized that “a variety of factors may be important” in any given case. Id. at 16. back
13
Id. at 2. back
14
The majority opinion seemed to move away from using the term “ministerial exception,” referring instead to “the Hosanna-Tabor exception,” id. at 16, or “the exemption we recognized in Hosanna-Tabor,” id. at 21. This nomenclature choice could be related to the substance of the decision; elsewhere, the Court emphasized that not all religions use the title of “minister,” cautioning against “attaching too much significance to titles.” Id. at 17. back
15
Id. at 23–26. back
16
Id. at 18. back
17
Id. back
18
Id. at 21. back
19
Id. at 27. back