Termination The Clergy-Penitent Privilege
• Key point 2-04.1. Most courts have concluded that they are barred by the first amendment guarantees of religious freedom and nonestablishment of religion from resolving challenges by dismissed clergy to the legal validity of their dismissals.
• Key point 8-06. The civil courts have consistently ruled that the first amendment prevents the civil courts from applying civil rights laws to the relationship between a church and a minister.
A federal appeals court ruled that it could not resolve a church choir director’s claim that she had been dismissed by her church on account of her disabilities since she occupied a “ministerial” position. A woman (“Melanie”) began her employment as choir director of a church in 1992, and thereafter became the director of music. While employed, she allegedly suffered from a variety of disabilities, including asthma, osteoarthritis of both knees, migraine headaches, and endometriosis. Melanie claimed that the church refused to modify her work schedule to allow full recovery from knee surgery and, after she suffered chemical exposures from cleaning materials, refused to accommodate her chemical sensitivities. The church terminated Melanie’s employment in May of 1995, and she sued the church and its pastor, claiming that she was discharged in violation of the Americans with Disabilities Act (“ADA”) as well as a state civil rights law. A federal district court dismissed the case on the ground that Melanie’s duties as a choir director were essentially “ministerial” in nature, and that the first amendment guaranty of religious freedom prohibited the civil courts from resolving personnel decisions involving ministers. Melanie appealed this decision to a federal appeals court.
The first amendment defense-free exercise of religion
The court concluded that if Melanie was a “minister,” then the first amendment’s “free exercise of religion” clause prevented it from resolving her claim that her dismissal constituted unlawful discrimination in violation of the Americans with Disabilities Act and a state civil rights law. The court noted that “the ministerial exception encompasses all employees of a religious institution, whether ordained or not, whose primary functions serve its spiritual and pastoral mission,” and that the church is “not required to advance a theological or religious explanation regarding its allegedly illegal employment actions.”
The court considered three factors in deciding whether or not Melanie was a minister:
1. Are employment decisions regarding the position at issue made “largely on religious criteria”? Melanie claimed that her employment was “based strictly on my abilities as a choral director,” and that the position “only specified that Christian character was necessary,” with “no mention of being a spiritual leader.” The court disagreed:
Although [Melanie] argues that she was hired strictly on the basis of her qualifications as a choir director, it is clear that her job requirements went above and beyond mere musical issues. To be certified as a Director of Music Ministry, she was not only required to have a masters in music, but also extensive course work in Church Music in Theory and Practice, Choral Conducting, Worship, Choral Vocal Methods, Hymnology, Bible, Theology, Christian Education, and United Methodist History, Doctrine and Polity. The job description for Director of Music states that “the Director of Music is responsible for the planning, recruiting, implementing and evaluating of music and congregational participation in all aspects of this ministry at [the church].” Furthermore, there is no dispute that religious music plays a highly important role in the spiritual mission of the church. Thus, it seems clear that the job specifications required [Melanie] to be educated in religion and serve as a spiritual leader.
2. Authorization to perform the ceremonies of the church. Melanie insisted that other staff members preached, led prayers, gave announcements, read scripture, welcomed new members, performed the sacraments, and led prayer groups and Bible studies. As a result, she did not perform the ceremonies of the church, and so could not be considered to be a minister. On the other hand, the church pointed out that the woman performed at least 21 “religious or worship-oriented job duties,” compared to only 3 “nonreligious, nonworship-oriented, or secular job duties.” In addition, the church noted that while the woman’s participation in religious ritual and worship was not a primary duty, and that hours on Sunday were not counted as weekly employment hours, her role was undeniably to lead the congregation in singing during the Sunday worship services. The church pointed to one of its own publications, which affirmed that “music is a gift from God” and that “making and listening to music can be, therefore, an act of prayer, an expression of faith, and a form of spiritual discipline.”
A second factor the court considered was whether Melanie “was qualified and authorized to perform the ceremonies of the church.” It observed that she
had several religious duties and responsibilities. For example, she was required to plan worship liturgy, coordinate church and worship activities relating to the church’s Music Ministry, rehearse with choirs and conduct those choirs, hire musicians and lower level music ministry directors, and write articles about the church’s Music Ministry for the weekly church bulletin, introducing liturgical seasons for worship services. [In her Answers to Interrogatories she] lists twenty-one duties under the category of religious or worship-oriented job duties, compared to only three entries for nonreligious, nonworship-oriented, or secular duties. She also lists nineteen of the twenty-one religious tasks as “essential,” while she designates all of her three nonreligious duties as “not essential.”
3. Activities traditionally considered ecclesiastical or religious. Third, and “probably most important,” the court considered whether Melanie “engaged in activities traditionally considered ecclesiastical or religious … including whether [she] attends to the religious needs of the faithful.” Melanie claimed that attending to the “religious needs of the faithful” was not a primary duty, although she admitted that she was designated to be a “ministerial presence” to ailing parishioners on occasion. She also conceded that, for her and her congregation, music constitutes a form of prayer that is an integral part of worship services and Scripture readings. The court concluded: “The evidence … indicates that [Melanie] did serve as a spiritual leader and thus properly falls under the rubric of this court’s ministerial exception …. It is sufficient that [she] clearly performed tasks that were traditionally ecclesiastical or religious.”
Application. This case is important for a number of reasons:
(1) It illustrates both the vigor and extent of the “ministerial exception” to federal and state civil rights laws. This exception prevents churches from being sued, under federal or state civil rights laws, for employment decisions involving “ministers.” This case demonstrates that the exception is not limited to ordained clergy, but applies to any staff member whose primary duties consist of teaching, spreading the faith, or participation in religious ritual and worship.
(2) The court provided a useful three-part test for determining those church staff members who are protected by the ministerial exception.
(3) The court cautioned that the role of the civil courts in applying the “ministerial exception” was to focus on “the action taken, not possible motives,” and that a church is “not required to advance a theological or religious explanation regarding its allegedly illegal employment actions.”
(4) This case suggests that job descriptions for ministry positions should be reviewed to ensure that they adequately describe spiritual qualifications and duties. Doing so will reduce a church’s risk of expending substantial amounts of time and resources in defending against discrimination claims. This becomes even more relevant when one considers that most church insurance policies contain no coverage for such claims. As a result, most churches must retain and pay for their own attorney when sued for discrimination, and pay the entire amount of a judgment or settlement. Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999).
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