The First Amendment Requires Courts To Stay Out Of Church Disputes

Last week, the Supreme Court heard oral argument in Our Lady of Guadalupe School v. Morrissey-Berru, a case in which the Ninth Circuit dramatically reduced the scope of the so-called ministerial exception, which precludes the government from meddling with the church-minister relationship.

The oral argument revealed a sharply divided court, with the Justices searching for a way to avoid entangling the federal courts in religious questions.  The dispute between the parties turns on what qualifies a religious teacher as a “minister” within the scope of the ministerial exception.  The schools argued that a functional analysis that considers the teachers’ religious duties is appropriate.  The teachers argued that religious duties alone are insufficient, the teacher must also be vested with a religious title.  Both sides faced tough questioning and a divided opinion is likely, but at the end of the day, it was clear many Justices were looking to minimize the role of the federal courts in assessing religiosity—a fact which should weigh in favor of the schools here.

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

This is not the first time the ministerial exception has been under assault.  Almost ten years ago, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court unanimously rejected an absurd claim put forth by the Obama Administration: that the First Amendment did not require an exception for church leadership disputes and thus that civil courts should wade into each and every internal dispute a church had with its ministers.  Instead, the Court recognized the existence of the so-called “ministerial exception.”

Hosanna-Tabor involved a small Lutheran church and school in Redford, Michigan, which offered a “Christ-centered” education to its students.  The church had two types of teachers: “called” and “lay.”  Called teachers had some theological training, obtained the endorsement of their local Synod district, and received the title “Minister of Religion, Commissioned.”

Cheryl Perich ultimately became a called teacher.  She taught fourth grade and was responsible for teaching religion four days a week.  Perich took disability leave in the fall of 2004, and in January of 2005, the congregation voted to offer Perich a “peaceful release” of her call, and pay for a portion of her health insurance premiums in exchange for her resignation.  Perich filed a claim with the EEOC, who ultimately brought suit against the school, alleging that Perich had been fired in retaliation for threating to file an ADA lawsuit.

The district court dismissed the case, finding that the lawsuit was barred by the ministerial exception.  The Sixth Circuit reversed, holding that Perich did not qualify as a “minister” under the ministerial exception.  

In an opinion written by Chief Justice Roberts, the Supreme Court reversed.  The Hosanna-Tabor Court pointed out that the First Amendment was adopted against the background of a national church, and that the Framers wanted to ensure that the United States government never dictated religion.  As the Court wrote, “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so … interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”  Thus, the Establishment Clause prevents the Government from “appointing ministers,” while the Free Exercise Clause forbids it “from interfering with the freedom of religious groups to select their own.”

The Hosanna-Tabor Court went on to hold that the ministerial exception applies to more than just pastors and priests, the prescription on government meddling is not limited to the “head of a religious congregation.”  The Court declined to adopt a “rigid formula” for deciding when an employee counts as a “minister,” for purposes of the First Amendment, finding that it applied in Hosanna-Tabor based on all of the circumstances of that case.

The Ninth Circuit’s Decisions in Lady of Guadalupe and St. James School

The Ninth Circuit appears not to have read Hosanna-Tabor very closely.  In the two cases before the Supreme Court today, both involving Catholic parish schools and teachers who taught religion among other things, the Ninth Circuit concluded that the ministerial exception only applies when the title of an employee signifies a “religious leadership” role.  Teaching religion for multiple hours per day and performing significant religious responsibilities is not enough. 

In Morrissey-Berru v. Our Lady of Guadalupe School, for example, the Ninth Circuit held that religious functions are not enough to qualify for the ministerial exception.  The Ninth Circuit admitted that the teacher at issue had “significant religious responsibilities as a teacher at the School.”  For example, she “committed to incorporate Catholic values and teachings into her curriculum … led her students in daily prayer [and] was in charge of liturgy planning for a monthly Mass.  Nevertheless, the Ninth Circuit found that “an employee’s duties alone are not dispositive under Hosanna-Tabor’s framework.”

The Party’s Arguments

At oral argument, the schools argued that Hosanna-Tabor permits religious schools to choose who teaches their children the faith. “Courts really shouldn’t be in the business of second-guessing that,” their counsel told the Court.  Justice Gorsuch seemed to agree, noting that the Court had repeatedly emphasized that courts aren’t in the business of judging the centrality of someone’s religious beliefs.  “Why can’t we just say that a church’s sincerely held religious beliefs about who is a minister decide the case?,” he asked.

The schools also argued that Hosanna-Tabor focused on the functions that an employee carries out and not just their title and that looking primarily at a title would harm faith groups that don’t bestow titles often.

The teachers defended the Ninth Circuit’s ruling, arguing that the ministerial exception should depend primarily on title and training, rather than employee functions.  They urged the court to consider objective factors—such as title—rather than functional duties.    

Conclusion        

The oral arguments in Our Lady of Guadalupe made clear that the case will result in a divided Court, likely with several different opinions being written.  The oral arguments made clear that the ministerial exception remains good law.  The somewhat messy question of who counts as a minister will likely remain a totality of the circumstances test focusing on both employee function and title.  A test centered on function, however, is necessary to avoid discriminating against religious groups that do not often employ titles.  The First Amendment is supposed to avoid entangling courts in ecclesiastical decisions not require that churches give certain titles in order to fall under the umbrella of its protections.