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Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al.

This week the US Supreme Court issued an opinion which has been touted by some as a huge win for religious institutions in the United States, and which has already been spun by certain political pundits as a roadblock to Federal government intrusion.  While certainly significant, the scope and fallout from Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., 556 U.S. ___ (2012),[1] Slip Opinion No. 10-553 (January 11, 2012), is unknown, and may be less momentous than some hoped. 

The pertinent facts of this case are as follows:  Cheryl Perich (“Perich”) was employed as a “called” teacher at Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan (“Hosanna-Tabor”).  A “called” teacher is a specific title which first and foremost requires that the teacher[2] be “called” to the vocation by God.  More specifically, a person may only be employed as a “called” teacher after he or she completes a course of theological study at a Lutheran college or University (a specific “colloquy” program), and importantly, is endorsed by his or her local Synod.[3]  He or she then may be “called,” rather than hired,[4] by a congregation at which time he or she is given the religious title of “Minister of Religion, Commissioned”.   By contrast, “lay” teachers, also employed by Hosanna-Tabor to perform substantially the same duties, are not required to complete religious training, are hired rather than “called,” do not have any religious title.  In fact, “lay” teachers are not required to be Lutheran at all.  Neither party disputed that “lay” teachers at Hosanna-Tabor enjoy Federal and State employment discrimination protections.[5] 

While it is not clear from the Opinion that every “called” teacher performed these identical acts, Perich taught religion classes four days a week in addition to other secular subjects, led her students in daily prayer and devotional exercises, and attended school-wide chapel services.  Noted as important by the Court, Perich held herself out as a minister by accepting a formal call to religious service, by taking an active role in conveying Hosanna-Tabor Church’s message and carrying out the Church’s mission, and more generally, by working to transmit the Lutheran faith.  It is under this set of facts that the US Supreme Court issued its Opinion, drafted by Chief Justice Roberts. 

This case began when Perich began the 2004-2005 school year on disability leave due to narcolepsy.  During her leave, the congregation voted to offer her a “peaceful release” from her call by paying a portion of her health insurance premiums in exchange for her resignation.  She declined, and reported for work when released by her doctors.  Upon reporting to work she was told she would likely be fired.  She reacted by threatening to file a lawsuit based upon the Americans with Disabilities Act (“ADA”).[6]  

Perich was terminated the next day for her “insubordination and disruptive behavior” and for “threatening to take legal action”.  There is little question that if Perich had been an employee of a private corporation, this would have been a violation of the ADA.[7]  Thereafter, the Equal Employment Opportunity Commission (“EEOC”) brought suit in US District Court against Hosanna-Tabor, claiming that it violated the ADA when it fired Perich for threatening to file an ADA lawsuit.  Perich also intervened, seeking reinstatement or frontpay, backpay, and other compensatory and punitive damages.   

The District Court quickly recognized a “ministerial exception” to Federal employment discrimination laws, including the ADA, and granted summary judgment in Hosanna-Tabor’s favor.  The Sixth Circuit Court of Appeals, however, disagreed. The Sixth Circuit recognized a ministerial exception, but it opined that Perich was not a “minister” included within that exception, noting that her duties as a “called” teacher were nearly identical to those of “lay” teachers.  The Court viewed Perich’s primary role as that of a teacher at a religious school, rather than that of a religious “minister”.  Hosanna-Tabor appealed, and the US Supreme Court heard its case earlier this week. 

The US Supreme Court considered two questions:  (1) is there a ministerial exception at all; and (2) to whom does the exception apply.  It is the distinction raised by the Sixth Circuit Court of Appeals – who is, and who is not a “minister” – that is the more interesting question.  In other words, just how far does the “ministerial exception” stretch? 

Justice Roberts begins his Opinion with a very clear recognition of the ministerial exception to employment discrimination laws.  This was not surprising, though it has proved most interesting to media outlets and political pundits.  In reaching this conclusion, Roberts recalled various ancient laws which restricted a congregation’s ability to choose its own leaders, including the 1534 Act of Supremacy, which made King Henry VIII the supreme head of the Church of England,[8] and allowed him to name all church officials.  Roberts recognized the importance of the Puritans, the Quakers and other settlers’ search for freedom to elect their own ministers, and opined that a congregation’s right to choose its own leaders, or “ministers,” is clearly and undoubtedly protected by the Constitution.  This exception has long been recognized by lower courts, but until this week it had not been directly addressed and recognized by the US Supreme Court.  Hosanna-Tabor at 13.  The ministerial exception is based in the First Amendment, and Justice Roberts clearly opined that it is required by “both Religion Clauses,” the Establishment and Free Exercise Clauses thereof.[9]

What Roberts’ twenty-two page opinion refuses to do, however, is to set forth any clear delineation of who will, and who won’t, be excluded from employment discrimination protection.[10]  The Court held that the ministerial exception will not be limited to the head of a religious congregation, but then refused to adopt any “rigid formula” for deciding when someone is a “minister” or not.  The Court punted that determination to lower courts which are faced with applying this case to an arguably distinguishable set of facts. 

In fact, Hosanna-Tabor could be construed by lower courts very narrowly, because Roberts determined that Perich was a “minister” by pointing to very specific characteristics of her relationship to the Lutheran Church and the congregation.  Specifically, he noted: her religious education requirements; her call and election by the congregation; the fact that she achieved the title of “Minister of Religion, Commissioned,” the fact that she was tasked with performing her job ‘according to the Word of god and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures;” and the fact that she held herself out as a “minister”.

Perhaps most importantly, he focused on the fact that Perich’s employment as a “called” teacher, could only be rescinded by a supermajority of the congregation.  Hosanna-Tabor at 15-17.  In other words, it was up to the congregation to determine who should lead and represent its Lutheran congregation. 

By noting all of these important findings of fact, it is apparent that the Hosanna-Tabor Opinion may be construed narrowly, with regard to which Church employees will, and will not, be protected by Federal and State employment discrimination laws.  There is certainly leeway for the Sixth Circuit Court of Appeals, which has already shown its reluctance to apply the ministerial exception broadly, to interpret Hosanna-Tabor as such.  In the coming years, it will also be interesting to see how aggressive the EEOC acts with regard to enforcing employment discrimination laws against churches and religious schools. For religious institutions and schools, Hosanna-Tabor may also shed light on the processes it may put in place to ensure that whomever it considers “ministers,” are in fact, exempt from employment discrimination laws. 

[1] A page number has not yet been assigned to this Opinion.

[2] Typical teaching credentials are also a requirement of the job. 

[3] A Synod is a regional organization of Lutheran congregations.

[4] It must be assumed that a “called” teacher also participated in certain new hire orientation and training prior to starting his or her job as a “called” teacher, consistent with being hired by the church/school, but the same is not discussed in the US Supreme Court’s Opinion. 

[5] Ms. Perich was employed as a lay teacher, prior to being called to serve as a “called” teacher.  These facts perhaps make this opinion more interesting, as Perich actually lost employment discrimination rights she had as a “lay” teacher, when she was “called” by God to teach. 

[6] The ADA not only prohibits adverse legal action based upon a disability, but also prohibits retaliation against those who oppose an employment practice made unlawful by the ADA.  42 U.S.C. Sections 12112(a) and 12203(a).

[7] In fact, Hosanna-Tabor did not take the position that if Perich had been a “lay” teacher, it would have violated the ADA. 

[8] This Act also allowed Henry to annul his marriage and marry Anne Bolyn. It was later repealed by his staunchly Catholic daughter, Mary but later reinstated by her half-sister Elizabeth.

[9] The First Amendment provides, in part that “Congress shall make no law respecting an establishment of religion” – the Establishment Clause – and then states “or prohibiting the free exercise thereof” – the Free Exercise Clause.

[10] Justice Alito issued a concurring opinion for the purpose of noting his view that secular courts should defer to each church’s opinion regarding whether a person was a “minister” of that Church.

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