Exploring a Sacred Legal Doctrine: The Ministerial ExceptionAdam West

November, 2013

Something truly remarkable happened on January 11, 2012. On

that day, the Supreme Court of the United States delivered an

opinion (Hosanna-Tabor Evangelical Lutheran Church and School v.

Equal Employment Opportunity Commission et al.) whereby the Court

acknowledged, once and for all, the existence of the so-called

ministerial exception. In short, the ministerial exception

provides religious organizations with the ability to hire and

fire ministers without regard to employment discrimination laws.

Perhaps the most remarkable aspect of the Hosanna-Tabor opinion

is that the decision was unanimous.1 That is to say, the

justices were all with one accord.2 The harmony of the Court in

recognizing the doctrine speaks volumes about the sacrosanctity

of what the ministerial exception stands for. But what is it that

makes the ministerial exception so untouchable?

1 The decision to recognize the doctrine was unanimous, but it should be notedthat Justice Thomas filed a concurring opinion and Justice Alito filed a concurring opinion in which Justice Kagan joined.2 Acts 1:14.

The purpose of this paper is to show the vital importance of

the ministerial exception by exploring the underlying

justifications for a doctrine that to many, seems incompatible

with America’s civil rights and employment law traditions.

In order to address the justifications of the doctrine, it

is necessary to first examine the legal history of the

ministerial exception. For brevity’s sake, Part I of this paper

provides a brief overview of the doctrinal bookends by which the

ministerial exception doctrine was created.3

Part II of this paper examines the primary justification

used to support the creation and perpetuation of the ministerial

exception. While numerous justifications have been identified by

scholars and legal minds, this paper shall focus on the issue of

remedies and the issue of fact-finding.4

Part I – History

Before addressing the ministerial exception’s legal lineage,

it may be beneficial to briefly examine an underlying issue in

3 McClure v. Salvation Army (Fifth Circuit), the first case to acknowledge the doctrine and Hosanna-Tabor v. Equal Employment Opportunity Commission, whereby the doctrine was finally acknowledged by the Supreme Court of the United States.4 An adaptation of problems identified in: Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. Rev. 1, 40 (2011)

religious freedom jurisprudence. An examination of the case law

surrounding the religion clauses reveals that a great deal of

tension exists between the free exercise clause and the

establishment clause. 5 As a rudimentary example, consider the

issue of prayer in school. To allow oral prayers in public

schools can be viewed as a violation of the establishment clause

because it is arguably a form of religious promotion. However,

to prohibit oral prayers in public schools can legitimately be

viewed as a violation of the free exercise clause because one is

forbidden from participating in conduct that is almost

universally a religious imperative (prayer).

As a result of the inherent tension between the religion

clauses, each clause has received varying degrees of

applicability over the past several decades, largely depending on

who was serving on the Court when certain cases were heard. As

such, many statements in the earlier ministerial exception cases

may reflect a First Amendment jurisprudence that has since

evolved.6

5 Thomas B. Griffith, The Tension Within the Religion Clause of the First Amendment, 2011 B.Y.U. L. Rev. 597 (2011)6 Karl Schock, Permissive Discrimination and the Decline of Religion Clause Jurisprudence: The Wearing Out of the Joints, 77 U. Colo. L. Rev. 229, 234

Despite the tension, however, the holding in the first true

ministerial exception case (McClure), received a great deal of

attention by the Supreme Court of the United States in providing

the opinion in the Hosanna-Tabor. In fact, the Court in Hosanna-

Tabor specifically acknowledged the tension, but stated that the

tension did not exist in the case before them, holding that

“[b]oth religion clauses bar the government from interfering with

the decision of a religious group to fire one of its ministers.”7

Therefore, despite the fact that some the language in

McClure is reminiscent of an older testament to First Amendment

jurisprudence, as applied to the ministerial exception, its

precedential value remains high.

McClure v. Salvation Army

In McClure v. Salvation Army, Billie McClure, an ordained

minister, filed suit against her former employer (the Salvation

Army) alleging a disparity between her salary and (confusing,

maybe compared to instead of and that of “similarly situated male

officers.”8 She also alleged that her discharge was a form of

(2006)7 Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al., 132 S.Ct 694, 702 (2012).8 McClure v. Salvation Army, 460 F.2d 553, 555 (5th Cir. 1972)

retaliation for filing a complaint with the Equal Employment

Opportunity Commission (“EEOC”) and complaining to her superiors

about the compensation differences.9 She brought the action under

Title VII.

Title VII specifically provides religious entities with a

limited exemption from its otherwise applicable prohibitions.

This exemption was at the heart of the Mrs. McClure’s argument.

It was her contention that the exemption was only intended to

“allow a religious organization to employ persons of a particular

faith to perform work connected with the carrying on of their

religious activities without otherwise violating the provisions

of Title VII.”10

In analyzing McClure’s position, the court relied heavily on

the legislative history of the religious exemption. The court

noted that H.R. 7152, the original House version of the bill

provided:

This title shall not apply to an employer with respect to the employment of aliens outside any State or to a religious corporation, association, or society. 11

9 Id.10 Id. at 558.11 Id. at 555

When compared to the version that was eventually signed into law,

the intention of the Legislature is clear. As the court points

out, the relevant section was “amended to limit the general

exemption of religious groups to those practices relating to the

employment of individuals of a particular religion to perform

work connected with the employer’s religious activities . . .”12

This led the court to hold that Title VII does not allow

religious organizations to discriminate based on race, color,

sex, or national origin (with respect to their compensation,

terms, conditions or privileges of employment). 13 As such, the

court deemed that it was necessary to view the claims under the

Constitution of the United States of America.

In analyzing the First Amendment, the court opined that the

“wall of separation” must remain “high and impregnable,” and that

the free exercise of religion could only be restricted “when it

is necessary ‘to prevent grave and immediate danger to interests

which the state may lawfully protect.’” 14

12 110 Cong.Rec. 12818. 13 McClure, at 558. 14 Id.

The court further held that “matters of church government

and administration [are] beyond the purview of civil

authorities.” 15 As such, applying the provisions of Title VII to

the employment relationship between a church and its minister

would “result in an encroachment by the State into an area of

religious freedom from which it is forbidden to enter by the

principles of the free exercise clause of the First Amendment.”16

Ultimately, the court concluded that Congress did not intend

for Title VII to regulate the employment relationship between a

church and its minister. Therefore, the Salvation Army’s motion

to dismiss was sustained.

Similar decisions had been sustained around the country in

various jurisdictions, but it took four decades for such a case

to reach the Supreme Court; the place where legal doctrines go to

either die, become converted, or to receive the breath of eternal

life.

Hosanna-Tabor v. Equal Employment Opportunity

Commission

15 Id. 16 Id. at 560

Cheryl Perich (“Perich”), the respondent in Hosanna-Tabor,

was initially hired as a “lay teacher” by Hosanna-Tabor

Evangelical Lutheran Church and School (“Hosanna-Tabor”) in

1999.17 As a lay teacher, she was not considered, in any way,

ministerial. However, a year later she was qualified and asked

to become a “called teacher.” Upon accepting the call, she was

designated as a commissioned minister.

In 2004, Perich was diagnosed with narcolepsy and began the

school year on disability leave. When she contacted the

principal in January of 2005, she was told that the school had

already filled her position. As such, Hosanna-Tabor offered

Perich a “peaceful release” in exchange for her resignation, but

Perich refused to resign.

Despite the fact that she was told that her position had

already been filled, she reported to work in February of 2005.

Hosanna-Tabor asked her to leave, which led Perich to consult

with legal counsel, an action which Hosanna-Tabor asserted as

contrary to the church’s “commitment to internal dispute

resolution.”18

17 Hosanna-Tabor at 69918 Id. at 709

As a result of her “insubordination and disruptive

behavior . . . as well as the damage she had done to her working

relationship with the school by threatening to take legal

action,” the Hosanna-Tabor congregation voted to rescind her

call, after which the school sent her a termination letter.19

Perich subsequently filed a claim, but Hosanna-Tabor’s

motion for summary judgment was granted. On appeal, the Sixth

Circuit vacated the summary judgment ruling and remanded the

case. As a result, the Supreme Court of the United States

finally had its opportunity to address the ministerial exception.

In concluding that the exception does exist, the Court held:

We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of thosewho will personify its beliefs. By imposing an unwanted minister, the state infringes theFree Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine

19 Id. at 699 (internal quotations omitted)

which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.20

After concluding that the exception exists, the remaining

question was whether the exception applied in the Perich’s case.

Without giving any direct guidance on determining what types of

positions qualify as “ministerial,” the Court concluded that

Perich was clearly a minister, so her claims were therefore

barred by the ministerial exception. The judgment of the Sixth

Circuit Court of Appeals was reversed, and the District Court’s

summary judgment decision was resurrected.21

Hosanna-Tabor will undoubtedly stand as a testament of the

Court’s unwillingness to permit the State to intrude on the

internal affairs of a religion, particularly on matters of church

ministry. However, because the Court so obviously avoided

establishing a standard by which courts can determine who

qualifies as a minister and which sort of claims are covered by

the exception, the ministerial exception is far from being a

20 Id. at 706.21 1 Corinthians 15:4

settled matter.22 Thus, by refusing to give a greater degree of

guidance, the Court has placed plague of darkness on the lower

courts, so that the path moving forward is not clear.23 However,

it seems that the doctrine has put on immortality and shall tarry

for a while.24

Part II – Justifications for the Ministerial Exception

As Hosanna-Tabor was being considered by the Court, a

significant amount of scholarly writing was devoted to the

subject of the ministerial exception; some calling for a broad

application of the exception and some calling for a more limited

application.25 The Hosanna-Tabor opinion suggests that a broad

application is necessary in order to effectuate the purposes of

the religion clauses of the First Amendment. And while the Court

22 “Today we only hold that the ministerial exception bars such as suit [as Hosanna-Tabor]. 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. They will be time enough to address the applicability of the exception to other circumstances if and when they arise.” Id. at 710.23 Exodus 10:2124 1 Corinthinans 15:5425 See: Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. Rev. 1 (2011);Molly A. Gerratt, Closing A Loophole: Headley v. Church of Scientology International As an Argument for Placing Limits on the Ministerial Exception from Clergy Disputes, 85 S. Cal. L. Rev. 141 (2011); andRenee M. Williams, The Ministerial Exception and Disability Discrimination Claims, 2011 U. Chi. Legal F. 423 (2011).

offered a fair amount of history to support the opinion, they did

not offer a lot of justification beyond the basic “separation of

church and state” arguments.

Although the opinion was relatively brief, the Court did

unequivocally provide the position that the ministerial exception

is absolutely necessary to sustain the sort of religious liberty

that was contemplated when the First Amendment was drafted. 26

The remainder of this paper shall focus on the primary

justifications for such a doctrine. More specifically, the

doctrine shall be justified by examining four problems that would

exist if the ministerial exception ceased to exist, namely the

reinstatement problem, the restructuring problem, the control

problem, and the inquiry problem. By exploring what religious

liberty might look like if the exception did not exist, the

necessity of it shall be made manifest.27

The Issue of Remedies

26 Hosanna-Tabor, at 710 “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is theinterest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”27 Romans 16:26.

One of the major obstacles that must be overcome by any

petitioner seeking redress in a ministerial employment suit is

identifying an appropriate remedy. Generally there are two

available remedies in employment discrimination suits;

reinstatement and monetary damages (frontpay, backpay,

compensatory damages, and punitive damages).28 As set forth

below, the First Amendment precludes both reinstatement and

monetary damages in ministerial cases, thus demonstrating the

necessity of the ministerial exception.

Reinstatement

It has been noted that reinstatement is generally the

preferred remedy in a successful employment discrimination

case.29 This is likely because reinstatement essentially undoes

the employment effects of any discrimination that took place, but

does not result in a monetary net loss for the employer. While

28 29 Rweyemamu v. Cote, 520 F3.d 198, 205 (2d Cir. 2008).

it is not actually the case, reinstatement can feel like a win-

win solution.

The Court in Hosanna-Tabor addressed the reinstatement issue

because Perich had initially sought reinstatement as a remedy.

And despite the fact that Perich abandoned seeking reinstatement

before the Court considered the case, the Court made it clear

that the First Amendment prohibited reinstatement as a remedy.

They held that to require a church to accept a minister it

did not want would “plainly violate the [c]hurch’s freedom under

the Religion Clauses to select its own ministers.” 30 This

statement by the Court makes it clear that reinstatement of a

minister due to a discrimination claim is equivalent to having

the government select or appoint the head of a religious

organization.

The Court further noted that such an action would cut

against “the scrupulous policy of the Constitution in guarding

against a political interference with religious affairs, which

[James] Madison explained, prevented the Government from

rendering an opinion on the selection of ecclesiastical

30 Hosanna-Tabor, at 709.

individuals.”31 Preventing the government from appointing church

leaders appears to one of the most basic purposes of the First

Amendment. Therefore, the most adequate and appropriate remedy

in employment discrimination suits is absolutely unavailable in

cases of religious leaders.

Monetary Damages

It must be noted, however, that reinstatement is not the

only remedy available. Because employment discrimination suits

often result in unpleasant feelings between the employee and the

employer, monetary damages are commonly sought and awarded.

In fact, Perich abandoned seeking reinstatement as her case

went before the Supreme Court, but the Court held that her

abandonment of the claim was “immaterial.” Because Perich was

still seeking monetary damages (frontpay, backpay, compensatory

damages, punitive damages, and attorney’s fees) in lieu of

reinstatement, the Court held “[a]n award of such relief would

operate as a penalty on the Church for terminating an unwanted

minister, and would be no less prohibited by the First Amendment

than an order overturning the termination.”32

31 Id. at 703 (internal quotations omitted).32 Hosanna-Tabor, at 709

This statement by the Court essentially equates monetary

damages and reinstatement, thereby barring monetary damages as a

remedy in ministerial employment discrimination cases. Further

supporting their position, the Court concluded “such relief would

depend on a determination that Hosanna-Tabor was wrong to have

relieved Perich of her position, and it is precisely such a

ruling that is barred by the ministerial exception.33

While the Court was considering Hosanna-Tabor, one scholar

who examined “the reinstatement problem,” articulated the

inherent issue with awarding monetary damages in ministerial

cases. In his article, In Defense of the Ministerial Exception,

Christopher C. Lund stated:

[G]iving front pay in lieu of reinstatement does not really fix the core problem. It still gives the government control over the church’s clergy, just in a different way: Appoint this minister or pay a fine. If thereis a religious liberty problem here, it is not fixed by taxing religious exercise instead of prohibiting it.34

As indicated by the Court in Hosanna-Tabor, and as pointed

out by Lund, the ministerial exception is a natural result of the

33 Id. at 70934 Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. Rev. 1, 40 (2011).

First Amendment. Because there are no appropriate remedies for a

ministerial employee claiming discrimination, any lawsuit for

such discrimination must therefore fail.

The Issue of Fact-Finding

In any trial, both sides are constantly under threat of

having facts misconstrued by those charged with “fact-finding.”35

However, such risks are arguably higher in religious cases

because fact-finders may be asked to consider, interpret, and

apply religious doctrine for which they have little or no

understanding.

It is no secret that religious beliefs and practices often

contain elements for which there is no discernable scientific

evidence or explanation. Therefore, it would be a costly error

to impose a jury’s limited understanding to beliefs and practices

for which church members believe “faith” is a necessary element.

In order to illustrate the danger of litigating religious

beliefs, consider the following scenario:

The Egyptian Pharaoh sent forth a decree establishing two new criminal statutes which were generally applicable to all inhabitants of the land. The first statute was essentially a

35 Christopher C. Lund, In Defense of the Ministerial Exception, 90 N.C. L. Rev. 1, 52 (2011)

burn ban forbidding any open flames outside ones dwelling or place of business. The second ordinance was a health regulation requiring all inhabitants to keep their shoes on atall times when in the wilderness.

In light of those new statutes, consider the following

passages from Chapter 2 of the Book of Exodus in the King James

Version of the Old Testament:

2 And the angel of the Lord appeared unto him in a flame of fire out of the midst of a bush: and he looked, and, behold, the bush burned with fire, and the bush was not consumed.3 And Moses said, I will now turn aside, and see this great sight, why the bush is not burnt.4 And when the Lord saw that he turned aside to see, God called unto him out of the midst of the bush, and said, Moses, Moses. And he said, Here (sic) am I.5 And he said, Draw (sic) not nigh hither: put off thy shoes from off thy feet, for the place whereon thou standest is holy ground.36

If Moses was charged with violating the burn ban and the

foot health statute, both sides would likely have to contend with

several fact-finding issues. For instance, Moses was the only

one around when the fire started, yet he will claim that the fire

started by itself. A jury will not likely believe his story.

Furthermore, when Moses explains that an angel of the Lord

appeared in the fire, his character would be called into

question, especially since the bush was not actually “consumed.”

36 Exodus 3:2-5

Now consider when Moses took off his shoes in the

wilderness. To do so was a direct command from the Lord. Is the

jury likely to believe that the angel of the Lord that stood in a

bush that was on fire (but not burning), told him to take off his

shoes because he was to stand on “holy ground.” Without evidence

that the ground was, in fact, holy or had been changed by the

alleged events, a major fact-finding issue remains.

Ultimately, the fact of the matter is, unless Moses was

being tried by a jury of prophets like Abraham and Isaiah, he

would likely be convicted of the crimes (and probably sentenced

to a long stay in a mental institution). If religious beliefs

could be proven by a preponderance of the evidence (which happens

to be the standard in employment discrimination cases), chances

are that a much larger percentage of the population would be

religiously religious.

As this concept applies to the ministerial exception, it is

critical that religious beliefs are not put on trial. Doing so

would be a clear violation of the First Amendment by either

establishing or disestablishing particular religions based on the

evidence supporting the religion’s claims.

Churches must have the right to appoint and dismiss

ministers for reasons that cannot be fully understood by the

general public. For instance, in the Church of Jesus Christ of

Latter-day Saints (the “LDS Church”)37, members are “called” to

positions based on “personal revelation received from God.”38

Eventually, members are similarly “released,” by revelation when

such a will is made manifest to the bishop (who, coincidentally

was also called by revelation by someone in authority over him).

To a jury, such a release might sound suspicious. After all,

“revelation” could easily be utilized as a pretext for which

there is no evidence to the contrary. Would the jury then be

given the charge to evaluate the sincerity and reliability of the

bishop’s revelation? The jury may not have any idea what

“revelation” is or how it is received, particularly by members of

the LDS Church.

37 It is understood that the LDS Church is not likely to run into issues with the ministerial exception because it is made up of a completely “lay clergy.” Nobody within a congregation is employed by the church. However, as a member of the LDS Church, I chose to illustrate my point with the LDS Church because I am more familiar with its practices and because I believe that the idea of “revelation” demonstrates the significant fact-finding issue that can so easily be created with religious doctrines.38 The Church of Jesus Christ of Latter-day Saints, Handbook 2: Administering the Church, Section 19.1.1 “A person must be called of God to serve in the Church. Leaders seek the guidance of the Spirit in determining whom to call.”

In the Seventh Circuit case, Tomic v. Catholic Diocese of

Peoria, Judge Posner addressed this issue in a case involving a

church music director who filed an age-discrimination lawsuit

against the Diocese.39 Therein, Posner stated:

“if the suit were permitted to go forward, the diocese would argue that he was dismissedfor a religious reason—his opinion concerningthe suitability of particular music for Easter services—and the argument could propelthe court into a controversy, quintessentially religious, over what is suitable music for Easter services.40

Because the courts are not in a great position nor generally

inclined to resolve questions regarding religious doctrine, the

ministerial exception is necessary in order to satisfy the aims

of the First Amendment.

Furthermore, it is understood that such a “religious reason”

will not always be present in ministerial employment cases, and

some opponents of the ministerial exception may wish to have the

exception applied on a case by case basis. However, a case-by-

case application, based on whether a reason is religious, is

unmanageable and inherently problematic.

39 Tomic v. Catholic Diocese of Peoria, 442 F.3d 1036, 1037 (7th Cir. 2006).40 Id.

Churches will be incentivized to frame dismissals in

religiously based. Subsequently, plaintiffs will claim that

churches falsely claim such reasons because “they get a free pass

by doing so.”41 Courts will then have the choice to either accept

the church’s reason without question or to submit the facts to

the jury knowing that jurors are not equipped to interpret

religious doctrine as well as church leaders. Therefore, it is

not only critical to maintain the ministerial exception, but to

ensure that the ministerial exception enjoys comprehensive

applicability.

Conclusion

The blatant discrimination that colored our nation’s past

for so many years has undoubtedly engendered the majority of

citizens to maintain a high degree of reverence for anti-

discrimination laws. While there are some who would argue that

all employers ought to be able to discriminate based on

principles of business autonomy, that belief is obviously the

minority opinion and no longer poses real threat to our current

41 In Defense of the Ministerial Exception, at 56-57

body of employment law. Our laws make clear our commitment to

protect certain classes from discrimination in employment.

The Court in Hosanna-Tabor understood that there is

naturally going to be friction between the interests of

(1)“religious groups in choosing who will preach their beliefs,

teach their faith, and carry out their mission,” and (2) “[t]he

interest of society in the enforcement of employment

discrimination statutes.”42 However, because the competing

interests are inherently incompatible with one another, the Court

in Hosanna-Tabor had to determine which was more important.

Ultimately, the Court concluded that the religious liberty

interest prevailed by stating, “The First Amendment has struck

the balance for us. The church must be free to choose those who

will guide it on its way.”43

The Court’s unanimity on this matter likely indicates that

the ministerial exception is here to stay, perhaps only to be

altered in application as in answering the question, “who is a

minister?”

42 Hosanna Tabor, at 71043 Hosanna-Tabor, at 710

This paper stands as a testament of the ministerial

exception’s great importance and of the Supreme Court’s ability

to “get it right,” with respect to religious freedom, for:

1 We believe that governments were instituted of God for the benefit of man; and that he holds men accountable for their acts in relation to them, both in making laws and administering them, for the good and safety of society.

2 We believe that no government can exist in peace, except such laws are framed and held inviolate as will secure to each individual the free exercise of conscience, the right andcontrol of property, and the protection of life.44

And these beliefs cannot be compromised.

44 The Church of Jesus Christ of Latter-day Saints, Doctrine & Covenants 134:1-2.