On January 11th, 2012, the Supreme Court of the United States (SCOTUS) handed down a unanimous ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. This case, which was already generating a great deal of discussion during oral arguments, is quickly becoming a seminal employment law case.  I’ll let Marylee Abrams, a partner in the Minnesota law firm Abrams & Schmidt, set up the facts of the case as she wrote on her firm’s Minnesota Labor & Employment Law Blog:

“The employment issue decided by the Court concerned the termination of Cheryl Perich, an elementary school teacher employed at a religious school.

Perich suffered from narcolepsy and was on disability leave from her teaching position. She demanded to return to her position, but she was denied the opportunity by church administrators, and she threatened to file suit for discrimination under the ADA. Her actions were determined to be insubordinate and disruptive and her conduct was viewed as damaging to working relationships, as noted in her termination letter.  “According to the Church, Perich was a minister, and she had been fired for a religious reason-namely that her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.””

Perich, a teacher at the school from 2000-2004, claimed that her responsibilities at the school were primarily secular in nature, and her religious duties took up only 45 minutes per day; intimating that although she worked in a religious setting, discrimination laws still applied.  After her termination was finalized, the EEOC filed suit in support of Ms. Perich, claiming the firing was in violation of the American’s with Disabilities Act (ADA).

Hosanna-Tabor argued that although Perich’s curriculum was secular (she taught math, language arts, social studies, science, gym, art, and music), her relationship with the school was such that it was clear the school was protected from discrimination claims due to the “ministerial exception.”  With more on the details of that aspect of the case, here’s Russell Cawyer, a partner with Kelly, Hart, & Hallman and member of the firm’s labor and employment practice group, on the Texas Employment Law Update:

“The school had two kinds of teachers –lay and called teachers.  Called teachers were regarding as having been drawn to their vocation by God and had to complete certain religious academic requirements and become “Commissioned” in the Lutheran faith.  Lay teachers were not required to undergo the religious training or ordination requirements.  Moreover, lay teachers were only used when called teachers were unavailable.  Perich stated out as a lay teacher but was asked to, and agreed to become a called teacher.”

Because of that relationship, the school argued (again from Cawyer’s post):

“(T)hat the First Amendment’s Establishment Clause’s (i.e., the provision that precludes the government from passing any law establishing a religion or interfering with the free exercise of religion) ministerial exception prohibited the application of the ADA claim against it because it would undermine the church’s decision in who become and remains a minister of the church.”

The litigation, which began shortly after Perich left the school in 2004, worked it’s way through the lower courts (which found the school’s argument compelling and ruled in their favor) and the Sixth Circuit Court of Appeals (which reversed the lower court’s ruling) before being taken up by the Supreme Court.  David Urban (along with co-author Michael Blacher) provides some much-needed analysis of the Supreme Court’s ruling on Liebert Cassidy Whitmore‘s blog, California Public Agency Labor & Employment Blog:

“(T)he U.S. Supreme Court, in a unanimous opinion authored by Chief Justice Roberts, held that the ministerial exception did apply.  The opinion began its discussion by describing that both of the “religion clauses” of the First Amendment (the Free Exercise clause and the Establishment clause) “bar the government from interfering with the decision of a religious group to fire one of its ministers.”  The opinion then recited the history of government interference, or at times deliberate non-interference, in religious organizations’ employment decisions, from the Magna Carta through the Cold War.  The opinion uses this concise narration of history and case law as a prelude to its holding recognizing the existences of the exception.

After acknowledging the existence of a ministerial exception, the Court set about defining its breadth and limitations.  The Court’s noted that “Every Court of Appeals to have considered the question has concluded that the ministerial exception is not limited to the head of a religious congregation, and we agree.  We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister.  It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.””

Urban and Blacher also pointed out that although the Court rejected using a formula for what constitutes a ministerial exception, the ruling did hint at some factors that played into rejecting Perich’s argument:

“First, Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members.

Second, Perich’s title as a minister reflected a “significant degree of religious training” and election to her position by a vote of the church congregation.

Third, Perich claimed a special housing allowance on her taxes that was available only to employees earning their compensation “in the exercise of the ministry” (known as parsonage).

Fourth, Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission.  The Court observed, among other things, that “Perich taught her students religion four days a week, and led them in prayer three times a day.”  She had a number of other religious duties as well.”

The SCOTUS may have been unanimous in its decision, but even in the face of agreement, our Justices can find ways to quibble over the finer points of the law.  Justice Clarence Thomas wrote a separate opinion that agreed with the final ruling, but argued the Court didn’t go far enough, while Justices Kagan and Alito joined forces in a concurring opinion that sought to temper some of the points in the main opinion (written by Chief Justice John Roberts). To get more on the nuances of these opinions, let’s jump outside the LexBlog Network to a post by Lyle Denniston, a contributor to the SCOTUSBlog:

“Justice Thomas, however, said in his concurring opinion that the Constitution’s guarantee of religious organizations’ right to govern their internal affairs, including the right to choose ministers, “would be hollow…if secular courts could second-guess the organization’s sincere determination that a given employee is a ‘minister’ under the organization’s theological tenets….Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the ‘mainstream’ or unpalatable to some.  Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding ‘ministers’ to the prevailing secular understanding.”

….

Joining the opinion but writing separately was Justice Samuel A. Alito, Jr., with Justice Elena Kagan joining his concurring opinion.   That opinion argued that the freedom to choose one’s spiritual leaders was broader than merely the choice of “ministers,” since some faiths do not follow that approach to religious governance.  What courts must focus upon in such cases, the concurring Justices said, is “the function performed by persons who work for religious bodies.””

In yesterday’s LXBN TV, which discussed the recent Sackett v. EPA Supreme Court case, Steve Jaffe said something that stuck with me as I researched the finer points of the decision handed down by the SCOTUS in Hosanna-Tabor:

“Most lawyers know this, and some clients know this: The Supreme Court tries to avoid constitutional interpretation if they can decide cases based on a statute. And so they can issue a decision that doesn’t explicitly make the constitutaionl finding.”

To me, this speaks to a broader pattern of judicial restraint when it comes to certain Supreme Court cases.  While the final outcome of Hosanna-Tabor didn’t turn on a statute, the Supreme Court Justices did take some steps to limit the impact of their decision, and for good reason.  As nearly every laywer or commentator pointed out, by establishing any sort of test or formula for ministerial exceptions the Court would be potentially crossing a line by concocting a secular standard for religious organizations to abide by when creating ministerial, or related, positions.  As Justice Thomas pointed out in his opinion, this is not something any court can adjudicate.  Given the complexities of the case, it would seem that the Supreme Court managed to exercise judicial restraint while also giving the lower courts some guidance in future cases.

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