The “ministerial exception,” first recognized by the Supreme Court in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, may soon get further consideration by the high court. The impetus is a couple decisions by the Ninth Circuit that narrowly limit the exception to the facts presented by the church school teacher in Hosanna-Tabor.
In Hosanna-Tabor, the Supreme Court instructed that the Establishment and Free Exercise Clauses of the First Amendment require the civil courts to keep “hands off” any decision by a church or church school to hire or fire anyone who is a “minister,” even though challenged under non-discrimination laws. In Our Lady of Guadalupe School v. Morrisey-Berru and Biel v. St. James School, the Ninth Circuit held that the exception should be narrowly tailored to the facts involving the teacher in Hosanna-Tabor and refused to apply the exception to Catholic school teachers who were not involved in a significant amount of overtly “religious” instruction.
The Catholic schools and others are understandably incensed about these decisions, which are out of harmony with applications of Hosanna-Tabor in other jurisdictions. Several organizations have filed amicus briefs supporting the effort to have the Supreme Court review these two cases and reverse the Ninth Circuit. The National Legal Foundation, along with the Pacific Justice Institute and the International Conference of Evangelical Chaplain Endorsers, also filed a brief in support of the petition, making two important points.
First, the ministerial exception reaches all organizations that are religious in character, not just churches, synagogues, mosques, and their schools. Many other organizations have an overtly religious purpose, such as evangelization and social welfare, but do not perform “traditional” religious rites or have employees called “ministers” or “teachers.” These organizations, too, are protected by the Religion Clauses when they decide who their employees should be to best fulfill their religiously motivated purposes.
Second, the other supporting briefs all adopt the argument of Justice Alito in his concurrence in Hosanna-Tabor that the exception reaches to all who have the “function” of performing religious ceremonies or communicating the faith. While this is certainly true, Justice Alito’s approach is not broad enough and still entangles the civil courts in religious matters. A civil court simply does not have the competence to determine if an employee of a religious organization is serving in a “substantial” or “key” religious position, or if an employee is serving in a “religious” position at all. It also betrays a common lack of understanding that all in a religious organization are “ministers” who contribute to the organization’s ongoing work.
Because following the path laid out by Justice Alito will not eliminate the entanglement of the civil courts in the employment decisions of religious organizations, we have advocated for adoption of the reasoning of Justice Thomas in his concurrence in Hosanna-Tabor. According to Justice Thomas, the civil courts should let the religious organization decide which positions are “ministerial” (in the sense that they require co-religionists as employees for the purposes of the organization to be best served) and which positions are not, with that decision being the final word if it was made in good faith.