Ministerial Exception and Minority Religions

Jason Pitzl-Waters —  October 4, 2011 — 32 Comments

On Wednesday the Supreme Court of the United States will hear a case that could have serious ramifications on what’s known as “ministerial exception” at institutions run by religious organizations. Hosanna-Tabor Church v. Equal Employment Opportunity Commission centers on a teacher at a Lutheran school who was fired due to a sleep disorder. The church is claiming that the teacher’s position falls under ministerial exception, and is therefore exempt from any discrimination proceedings, while the Equal Employment Opportunity Commission, backed by the Justice Department, feels that her role at the school was largely secular in nature, and shouldn’t fall under the exceptions usually given to clergy within religious groups.

Cardinal Donald Wuerl and Chief Justice John Roberts

Cardinal Donald Wuerl and Chief Justice John Roberts

“The core question before the Justices, in responding to the broad argument for an exception, is how to define the scope of duties of parochial school teachers like Cheryl Perich.   If the decision is that Ms. Perich was a minister, anti-bias laws cannot shield her in the workplace; if she was not, she is then like any other worker, protected against discrimination on the job.   In her case, the claim is that she was discriminated against because of her physical health problems and her insistence on her legal rights — in short, she was allegedly the victim of retaliation, in violation of the federal Americans with Disabilities Act.”

While all the expected big players in American religion, the United States Conference of Catholic Bishops, the National Council of Churches, and the National Association of Evangelicals, are backing the church, and a broad interpretation of ministerial exception, so too are a number of minority religions in the United States.

“Defending the school is a coalition of small and sometimes-obscure religious groups. They include the Muslim-American Public Affairs Council, United Sikhs, Church of the Lukumi Babalu Aye, International Society for Krishna Consciousness, O Centro Beneficente Uniao Do Vegetal and Templo Yoruba Omo Orisha.”

In their amicus brief, this coalition of minority religions say they are particularly susceptible to judicial encroachment, and that their faiths often categorize what might be seen as “secular” work within a sacred context.

“…many seemingly secular activities take on deep religious significance within specific faith traditions. For Sikhs, for example, operating a community kitchen and providing meals (langar) to the needy and vulnerable is an indispensible element of religious worship. For some temple-centric religions, the actual process of constructing a temple carries deep religious significance. Hindu temple architects and artisans follow ancient religious traditions in their work. For others, temple overseers may be tasked specifically to ensure that construction workers follow religion-based standards and refrain from profane acts that might desecrate the temple. For other religious organizations, meditation is a form of worship, distributing aid through prescribed means is an essential sacred ritual, and counseling and healing are acts inspired by deity. But because such religious functions – at least from the external view – may be indistinguishable from the same activities carried out for secular purposes, courts trying to parse the sacred from the profane jeopardize the ability of religious organizations to define and carry out their own sacred missions.”

Interestingly, the Unitarian Universalist Association, filing along with the ACLU and American United, takes a very different view of this case. In their opinion, a generous interpretation of the exception shields groups engaging in abusive or exploitative actions.

“The ministerial exception is designed to allow religious bodies to practice their religion and convey their message without government interference. But the exception thwarts society’s interest in ending discrimination—without serving the exception’s purpose—when applied to shield a religious entity from liability for discrimination or retaliation that is unrelated to religious ideology. As a result, in applying the ministerial exception, courts can and should use their considerable experience in determining whether sincere religious views animated a litigant’s conduct. And the Constitution provides no bar to this enterprise.”

It all comes down to viewpoint. For minority groups like Church of the Lukumi Babalu Aye or O Centro Beneficente Uniao Do Vegetal, who have both gone to the Supreme Court to protect their beliefs and practices, the less power the government has to pass judgment on their practices, the better. For the UUA, and the civil liberties groups who often represent minority faiths in court, it’s about accountability and justice.

“The American Civil Liberties Union and a coalition of religious-liberty groups filed a friend-of-the-court brief in the case, considered by many to be one of the most important religious liberty cases in years.  The brief argues that although churches certainly have a constitutional right to religious autonomy, that right is not absolute, and religious organizations do not have the right to discriminate based on non-religious grounds. Religious institutions should be given some leeway in hiring practices in order to express and practice their faith. For example, a Catholic church need not hire a female priest and an Orthodox Jewish congregation need not hire a female rabbi if doing so would violate their religious tenets. However, this ministerial exception should not apply to discriminatory decisions that have nothing to do with religious doctrine.”

So how will SCOTUS rule? Well, a good preview might be Sylvia Spencer v. World Vision Inc in which the 9th Circuit Court ruled that the religious non-profit organization could hire and fire workers based on religion. That decision was just denied certiorari, meaning they’re allowing the ruling to stand. Is it a harbinger? Will the six Catholic justices find themselves moved by their own church’s position on this case? SCOTUS will have to decide how far the First Amendment reaches, or as law professor Richard W. Garnett put it: “Does a government like ours, limited by a provision like our First Amendment, have the authority to second-guess a religious community’s decision — even a decision that seems wrongheaded or objectionable — about who should be its religious teacher, leader, or minister?” What do you think?

Jason Pitzl-Waters


  • Morgana

    Romans 13:1-6 states that Christians are obligated to follow the laws of the land.

    • Lwfiedler

      Oh goodie! Does that mean they’ll be paying taxes now?

      As for the woman who was fired, was she a nun? Did she have special credentials which made her more qualified to teach at a Christian school?

      • It was a Lutheran school, so it is pretty safe bet she was not a nun.

        • Huh? There are Lutheran nuns. And they can often be found teaching at Lutheran schools.

  • Ole Wiedenmann

    the situation is far worse in Germany, where 1.3 Million employees of churches and their (charities, schools, nurseries, hospitals, etc.) are second class employees and can be fired e.g. for belonging to no or the “wrong” religion (no catholic or protestant run hospital would hire an atheist cleaner)

    • kenneth

      Your problem there is compounded by what is known as a “concordat”, a treaty in which the Vatican persuades governments to give the church total control over anything it touches. I believe some of the provisions you speak of were in fact first established by a concordat put in place under National Socialism.

      • it is not Nazi law, paragraph 140 of the German constitution of 1949 which incorporates some paragraphs of the Weimar constitution of 1919 allows all religious bodies (not only the Roman Catholic church and the main federation of Protestant Churches) to run its internal affairs without state interference within certain boundaries e.g. if it does not violate fundamental human rights

        • Merofled Ing

          The concordat (July/September 1933, making the Vatican State the first state to sign a treaty with Hitler) went beyond some of the regulations in the Weimar Verfassung (Reichskonkordat Art 5, 8 and 22 certainly, Art 18, 20, 21 in practice); beyond what the Weimar Constitution stipulated (esp. in Arts 146 and 149 regarding schools). So Kenneth isn’t all wrong, though the failure in a complete separation of church and state does indeed go beyond the Nazi regime.
          Today’s practice and understanding of the Churches’ rights are based rather on the concordat especially when it comes to the payment / rights of clergy and to the churches’ rights in schools.

          • the concordat only applies to the Roman Catholic church but the discriminatory practises in labour relations granted by paragraph 140 of the constitution apply to all Religious bodies and “Weltanschaungsgemeinschaften” (e.g. Humanist bodies) regardless if they are recognized by the state as a Statutory corporation or as a voluntary organization

        • the_wiggle

          so the right not to be discriminated is not a human right? how is that not another slippery slope?

        • the_wiggle

          so the right not to be discriminated is not a human right? how is that not another slippery slope?

  • kenneth

    I’m not a big fan of granting religious groups big exemptions to civil law for any reason. I can see a need to give them more latitude in hiring when it comes to clergy and people integral to the core religious activities of the group. That might include people working in a religious school, IF the matter at hand involved a religious principle, ie if the teacher was fired for some egregious religious offense or for teaching heresy etc. In this case, the Lutherans are asserting that they shouldn’t have to answer to any law simply because they’re a religious outfit.

    That’s bunk. Churches are now trying to take the tack that not only is their worship protected from government interference: In their eyes, any enterprise they touch magically becomes an extension of core religious free expression activities. On the various dominionists and conservative Catholic boards right now, they’re howling about a case right here in Illinois. Catholic Charities is losing a government contract for adoption placement because they refuse to work with gay couples, in violation of state laws and regulations. These people are crying “persecution” because the state refuses to pay them for not doing a job. They actually believe that any business they get involved with should be granted a full exemption from all civil law whatsoever.

    As an aside, any religion which truly needs the right to screw over disabled people to carry out their “sacred mission” is one I’d rather not be part of….

  • Anonymous

    I wouldn’t read a denial of cert. as endorsement. SCOTUS denies cert. to many, many more cases than it grants. Often, they don’t grant cert. because there’s no Circuit split or because the issue isn’t one of national importance. That said, a picture is worth a thousand words, and your picture says a lot,

  • The real issue with World Vision is not their hiring practices. It makes perfect sense for a Christian missionary group to only hire Christians who share their missionary goals. The issue is that World Vision is directly subsidized by the US taxpayer’s money!

  • Baruch Dreamstalker

    The UUA is very big on anti-discrimination.

  • Daniel

    What was she teaching? Is she an ordained minister? A deacon? A seminarian? Was her employment predicated upon her espousal of doctrine? Is accomodating a physical disability contrary to the Christian message? Does the church really have a leg to stand on?

    I don’t think so.

  • Pallas Renatus

    I’m really not sure where to stand on this one. I’ll be following the case with interest, for sure, though.

  • While I can see an argument for a church or religious organization having some legal leeway regarding the conduct of its officials and internal affairs (under certain strict circumstances), using religion as an excuse to discriminate against the disabled in contradiction to the law of the land is absolutely unacceptable.

    Religions should be taxed like any other organization or corporation. They should be subject to the same civil laws as any other organization or corporation. They should not be able to discriminate in hiring and firing based on disability, gender, sexuality, or other criteria when one is otherwise qualified for a position.

  • the_wiggle

    Why has there been nothing published about her condition? If her condition is such a severe impairment that her employer felt they had sufficient FACTS to support a resignment request, why is that not being stated? Why if they were so secure in their position that she would get a fair hearing w/in their Christian system, did they fire her for threatening ADA actions instead of providing proof of the fair hearing capabilities of their system?
    There seems to be a lot of important information missing and this seems to be set up as an excuse by those on both sides of the ministerial exception concept to have a brawl for control.

  • the_wiggle

    Why has there been nothing published about her condition? If her condition is such a severe impairment that her employer felt they had sufficient FACTS to support a resignment request, why is that not being stated? Why if they were so secure in their position that she would get a fair hearing w/in their Christian system, did they fire her for threatening ADA actions instead of providing proof of the fair hearing capabilities of their system?
    There seems to be a lot of important information missing and this seems to be set up as an excuse by those on both sides of the ministerial exception concept to have a brawl for control.

    • Baruch Dreamstalker

      The GetReligion post on this, up today, cites a source saying her problem is narcolepsy.

  • I can understand a church not wanting to hire a female, or a homosexual person, or a non-Christian for certain jobs. I don’t *like* it, but since granting authority to certain types of people actually is forbidden in their scriptures, I can see their point.

    But if I’m understanding this correctly, she was fired specifically for her disability, yes? How can they cite religious exemption for that? There’s nothing in their Bible that says they’re not allowed to put disabled people in positions of authority. It’s not part of their beliefs at all.

    I’m pretty sure the religious exemption idea exists so religious organizations can conduct themselves according to their beliefs, not so that they can do whatever the hell they want with no consequence. The religious exemption law does NOT mean “churches can hire and fire using *any criteria whatsoever* (whether it has anything to do with religion or not)”.

    So unless there’s a “Cursed be the disabled; they shall not teach nor have authority over you” verse somewhere in the Bible that I missed, I don’t think this church really has a case at all.

    • Baruch Dreamstalker

      According to the source studied by GetReligion (up today) the teacher took immediate legal action rather than trying the church’s internal conflict-resolution processes. That, said a spokesperson, is a violation of an important covenant of this religion, and so makes this a religious matter. I suppose the implicit logic is that if she broke the covenant she excommunicated herself and they don’t want to (and cannot be forced to) hire that sort of folks. So they implicitly say.

      I’m tempted, of course, to say, “Oh, come on, that’s a transparent dodge to infringe on employee’s rights under law.” But to dismiss their logic as too complicated sets a precedent for dismissing Pagan demands on institutions because they’re too complicated.

      • If they are firing her because she refused to work with their own internal resolution, that makes a little more sense. Christians do have a specific system of conflict resolution that is rooted in their scriptures and, depending on the church, can be pretty important to how they deal with each other as believers. I can see how that could fall into the religious exemption category and how they might have a case there.

        However, my question would then be why they really fired her in the first place. (Or threatened to fire her? Which came first, the actual firing or the legal action?) Have they been citing the religious exemption all along as a reason to fire her, or did they pull that card only after she sought legal action against them? If it’s the latter, then yeah, I suspect it’s just a excuse, but it’s not something that can be ignored. Perhaps if she’d tried the church’s resolution method first, and then only sought outside help if that failed, this wouldn’t be a case at all…because I’m fairly sure a religious organization can’t discriminate against the disabled unless they claim that their religion requires them to. And Christianity contains no such tenet that I know of.

        Without knowing more details, I really can’t say who’s right here.

  • Rua Lupa

    It really would depend on what subjects she was teaching. If they were religious oriented subjects, and she was fired because of her illness and not her teaching, then it is discriminatory. But if she was teaching religious subjects and was fired because of how she presented those texts, that would be the in the domain of that religious group. If it was secular subjects, then the religious group would have to follow regular protocol that any public school would have.

    • Baruch Dreamstalker

      A commenter to the Get Religion post on this topic (up today) said that the subjects of all classes taught were understood to be underpinned by God, and thus are religious subjects. The court erred in drawing up a list of “secular”and “religious” activities, it would follow.

      Of course one is tempted to say, “Horse pucky! This is an attempt to incrementally destroy the concept of the secular.” But a lot of Pagans believe the Divine underpins everything. Careful whose foot one is aiming at.

  • If one reads the relevant legal documents, one finds much that should give anyone involved in any organized religious group cause to pause before jumping on the bandwagon to eliminate or diminish the “ministerial exception”. The bottom line is: Do you want the government micro-managing your religious group and deciding which of your activities are strictly “religious” (and, therefore, exempted), and which are “secular” (and, therefore, not exempted)? This issue comes out very clearly in the case of Spencer v. World Vision (here is a direct link to the pdf).

    At the same time, if one looks at the Spencer case one finds that, regardless of what World Vision has the right to do, what they did was seriously effed up. The reason for the dismissal in that case was that the employees in question “disavowed the doctrine of the Trinity.” Seriously. It all came down to belief in “The Thing With Three Souls”, as Terry Carr once so aptly put it.

  • Kilmnrnock

    Atho i believe it’s dangerous to allow the govt. to meddle in religous matters , i tend to side w/ the teacher and the aclu on this one .Exclusionary matters dealing w/ religion and the practice thereof is one thing . But firing someone in retaliation and b/c of health matters is another.Christians , just like us, are obliged to follow proper and just laws of the land .She was a teacher , at this school , not a minister. In Catholic school, and religous schools non nun/priest/minister teachers are considered lay employees , not clergy. So as such, she deserves protection under labor laws.To allow them to use the ministerial excecption rule in this case would be abusing it . Kilm

  • Kilmnrnock

    i have no intent to eliminate minesterial exception . i am only concerned that this group wants to use it as a blacket ecxuse to do whatever they want to . allowing that could set a dangerous precident.this rule should only be used as intend by its founders. not to allow any religious organisation to skirt laws as they see fit. Kilm

  • Joseph

    I believe there is too much latitude in this case. Some religious institutions regard ALL their employees, no matter what their position, as exercising a ministry on behalf of the mission of the institution. Whereas others, even the Catholic church, may regard a secretary as a secretary and not a ministerial person. Remember the RC church does not ordain women, and all who are not ordained are considered ministerial persons.

  • Revruthucc

    I am an ordained minister in a mainline denomination. I do believe that the ministerial exemption should apply for MOST things, but in this case a) someone hired as a teacher in a school setting is, for the purposes of the law, not performing ministerial functions; and b) the ministerial exemption should not apply at all for the ADA. The ADA should be both the compassionate standard and the legal standard for religious bodies in terms of hiring/calling ministerial leaders.