Supreme Court Recognizes "Ministerial Exception" to Employment-discrimination Laws

By Peter Schmidt
Chronicle of Higher Education
January 11, 2012

http://chronicle.com/article/Supreme-Court-Recognizes-a/130291/

[Updated with additional reaction and details about the concurring opinions, 5:38 p.m.]

In a decision with major implications for church-affiliated colleges and their employees, the U.S. Supreme Court on Wednesday unanimously held that the First Amendment precludes the application of federal employment-discrimination laws to religious institutions' personnel decisions involving workers with religious duties.

Many federal appeals courts and state courts had previously declared that there exists a "ministerial exception" to employment-discrimination laws rooted in the First Amendment's clauses protecting religious freedom. Wednesday's ruling, however, is the first in which the Supreme Court formally recognized the "ministerial exception" as legal doctrine.

Although the case involved a lawsuit brought by a teacher who had been fired from a now-defunct religious elementary school, it was watched closely by many religious colleges, which had urged the court to safeguard their religious freedom, and advocates for the employees of such institutions, who had argued that a Supreme Court decision in favor of the school could leave colleges emboldened to cite the ministerial exception as a pretext for trampling employees' rights.

The Supreme Court majority's opinion, written by Chief Justice John G. Roberts Jr., made clear that the court was applying the ministerial exception only to employment-discrimination disputes. It said, "We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise."

On the question of whether the ministerial exception applied to discrimination lawsuits, however, the justices were emphatic in stating their view that interfering with a church's ability to hire or fire those it regards as ministers violates two clauses of the First Amendment: the free-exercise clause, which, they said, "protects a religious group's right to shape its own faith and mission through its appointments," and the establishment clause, which prohibits government involvement in such religious decisions.

Their opinion noted that the First Amendment's authors had chafed against the English Crown's involvement in America's religious matters, and that the Supreme Court had touched upon religious organizations' freedom to choose their own ministers in cases involving attempts by the government to intervene in disputes over church property.

Three of the justices also signed on to separate, concurring opinions stretching the scope of the ministerial exception beyond the opinion of the majority, which based its decision heavily on its assessment of how much the job duties of the teacher who brought the lawsuit could be considered religious.

Justice Clarence Thomas argued in one that the First Amendment's religion clauses require the courts to defer to religious organizations' own decisions as to which employees they consider ministerial.

In the other, Justice Samuel A. Alito Jr. and Justice Elena Kagan joined in arguing that the courts, in determining which employees of religious institutions serve religious functions, should not fixate on the title "minister," which is used only in some faiths.

'Breathtaking Implications'

The court majority's ruling in the case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (No. 10-553), was cheered by the Council for Christian Colleges and Universities, which had submitted an amicus curiae, or "friend of the court," brief urging the justices not to open the door to federal-court involvement in determining which employees of such institutions should be classified as ministerial.

"We argued in our brief, and we believe on our campuses, that our faculty are essential to carrying out the religious mission" of religious colleges, said Shapri D. LoMaglio, director of government relations and executive programs for the council.

Anthony R. Picarello Jr., general counsel for the U.S. Conference of Catholic Bishops, issued a statement that said the "decision affirms the common-sense proposition that religious schools must be free to choose religion teachers based on religion, without interference from the state."

On the other side of the issue, more than 60 professors of law and religion at American higher-education institutions had submitted an amicus brief arguing that the recognition of a ministerial exception "has breathtaking implications for denying the civil rights of employees of religious schools and institutions," including the nation's roughly 900 religiously affiliated colleges and universities.

Caroline Mala Corbin, an associate professor of law at the University of Miami who is a co-author of that brief, issued a statement that said, "It is a shame that in its zeal to protect the rights of religious institutions, the Supreme Court ignored the rights of the religious individuals who work at those institutions."

The decision, Ms. Corbin said, gives religious colleges "carte blanche to discriminate and retaliate" against any faculty member who is deemed a ministerial employee. "It does not matter if the discrimination or retaliation is religiously required," she said. "Either way, the professor has no legal recourse."

Several professors and scholars of antitrust law had submitted an amicus brief cautioning the court not to define the ministerial exception in ways that would enable religious associations to cite it in imposing cartel-like restraints on their labor market.

Barak D. Richman, a professor of law and business administration at Duke University who was one of that brief's authors, said the fears expressed in it were not realized because the decision narrowly focused on employer-employee relationships within individual institutions, and not any efforts by associations to influence their member organizations' personnel decisions.