The U.S. Supreme Court in 2012 first recognized the viability of the so-called “ministerial exception,” an affirmative defense that forecloses discrimination claims against a religious entity when the plaintiff plays a central role in the entity’s core religious mission.
As with many legal questions, however, the trick is delineating the scope of the exception. Although the Supreme Court’s jurisprudence on this question is scant, its two decisions unmistakably show a tendency toward expanding the exception’s reach, particularly in light of the court’s current makeup.
Side note: Don’t confuse the ministerial exception with statutory provisions in federal antidiscrimination statutes that expressly protect a religious entity’s ability to make employment decisions (such as hiring or firing) for religious reasons. (See, e.g., 42 U.S.C. § 2000e–1(a) [Title VII]; 42 U.S.C. § 12113(d) [ADA].) The ministerial exception, by contrast, applies in cases in which a religious entity has taken some adverse employment action against an employee for a reason prohibited by federal antidiscrimination statutes, such as race, disability, sex, or age.
As noted above, the Supreme Court first examined the scope of the ministerial exception in 2012 in a case called Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012) 565 U.S. 171. The issue was whether the exception ought to apply to a teacher at a Lutheran school who claimed that the school violated the ADA when she was allegedly terminated because of her disability.
The court ultimately held that the exception did apply to the teacher and, although the majority declined to adopt a “rigid formula for deciding when an employee qualifies as a minister,” the court nevertheless highlighted four “relevant circumstances” that led to their decision:
- The school had given the teacher the title of “minister,” and she was classified as a “called” teacher.
- Her position reflected a “significant” degree of religious training, followed by a formal process of commissioning.
- She held herself out as a minister of the Lutheran Church and claimed certain tax benefits because of that status.
- Her job duties included teaching religion four days a week, leading students in prayer three times a day, taking her students to chapel services once a week, and participating in the liturgy twice a year.
The Supreme Court next took up the issue of the ministerial exception’s scope last year in Our Lady of Guadalupe School v. Morrissey-Berru (2020) 140 S.Ct. 2049. This consolidated case involved teachers at two Catholic elementary schools. Although their main responsibilities were teaching secular subjects, they were also involved in students’ religious education to some degree.
The first teacher provided religious instruction every day using a textbook designed for use in teaching religion. She also prepared her students for participation in the Mass and for communion and confession, prayed with her students, began and ended each day with a Hail Mary, and taught them to recite the Apostles’ Creed and Nicene Creed. And, finally, the school reviewed her performance under religious standards.
Similarly, the second teacher was responsible for instructing her students in the tenets of Catholicism using a religion textbook selected by the school’s principal. She worshipped with her students and taught them about “Catholic practices like the Eucharist and confession.” She also prayed with her students at monthly Masses, and began and ended each day with a prayer, such as the Lord’s Prayer or a Hail Mary.
After the school declined to renew her employment contract, the first teacher filed a claim under the federal Age Discrimination in Employment Act, while the second teacher alleged that the school violated the ADA when she was terminated after requesting a leave of absence to obtain treatment for breast cancer.
In reaching its decision that neither teacher could maintain her suit, the Supreme Court, not surprisingly, relied heavily on Hosanna-Tabor, stating that “implicit in our [prior] decision . . . was a recognition 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.”
Because the evidence showed that the teachers each performed “vital religious duties,” the ministerial exception applied to foreclose their claims.
When examined closely, Morrissey-Berru arguably represents an expansion of the exception originally delineated by the Supreme Court in Hosanna-Tabor, which itself represents an expansion of how the exception had generally been interpreted in lower court decisions, many of which confined it to actual members of the clergy, such as rabbis, priests, imams, pastors, and the like. (But see EEOC v. The Roman Catholic Diocese of Raleigh, N. C. (4th Cir. 2000) 213 F.3d 795, 802 [cathedral’s music director and part-time music teacher at cathedral’s elementary school fell within exception].)
Both teachers in Morrissey-Berru taught mainly secular subjects, and neither possessed anything close to the formal religious training and credentialing that the teacher in the Hosanna-Tabor did. Yet the court found the ministerial exception applicable in the former case.
Which begs the question: How far will the Supreme Court push the limits of the exception? With the court’s current roster, which has shown itself to be exceedingly protective of religious liberty interests, particularly in the use of its “shadow docket,” the answer might well be: as far as it can.
For example, and staying within the context of religious schools, it’s not difficult to envision a future Supreme Court decision holding that a teacher who teaches only secular subjects at a religious school is nevertheless covered by the exception. A creative lawyer might argue that such a teacher, simply by virtue of being a faculty member and contributing to the general education of students and smooth functioning of the school, is participating, albeit indirectly, in the school’s religious mission and is thus performing “vital religious duties.”
And why stop at teachers teaching secular subjects? What about other administrative and support staff, such as the principal, a plant manager, or a janitor? They, too, contribute to a religious school’s smooth functioning and thus could be said to participate in the school’s underlying religious mission.
Further, churches and other religious institutions are often affiliated with food kitchens, charities, and other community events. Using a similar rationale, the employees of all these could conceivably be covered by the ministerial exception.
But for now, this is speculation — time will tell how far the court will be willing to go.
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