Introduction
Many courts have ruled that the First Amendment guaranty of religious freedom prevents them from resolving employment disputes between churches and ministers. This so-called “ministerial exception” has been applied to a range of employment disputes, including discrimination, wrongful dismissal, and compensation claims. The exception has been applied in several cases to persons who are not ordained ministers but whose functions are central to the promotion and furtherance of a church’s mission.
Though several state and federal courts have addressed the ministerial exception, the United States Supreme Court has yet to do so. That is about to change. The Supreme Court has agreed to hear an appeal involving the dismissal of a teacher by a church-operated secondary school. A federal district court in Michigan ruled that it was barred by the ministerial exception from resolving a disability discrimination claim brought by the teacher (the “plaintiff”) against her employing school. The court began its opinion by observing that “for the ministerial exception to bar an employment discrimination claim, the employer must be a religious institution and the employee must have been a ministerial employee.” There was no dispute that the school was a religious institution and so the focus shifted to the question of whether the plaintiff was a ministerial employee. The court concluded that she was. It noted that the exception “most clearly applies to clergy and ordained ministers,” but “it is not limited to such employees.”
To determine if other employees fall within the exception, courts consider whether “the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” Accordingly, “an employee may be considered ministerial, although not ordained, depending on the function and actual role of his or her position in the religious institution.” The court concluded that the duties of the plaintiff in this case clearly made her a ministerial employee to whom the ministerial exception applied:
The separation of church and state in the United States has made federal courts inept when it comes to religious issues; the inquiry into the value of an employee in furthering a religious institution’s sectarian mission is no different. The lack of clarity in federal court cases regarding elementary school teachers should not hinder churches from valuing teachers as important spiritual leaders and deciding who will fill those positions as ministerial employees, subject, of course, to inappropriate uses of the title “minister” as subterfuge. For these reasons, it seems prudent in this case to trust [the school’s] characterization of its own employee in the months and years preceding the events that led to litigation. Because it considered the plaintiff to be a “commissioned minister” and the facts surrounding her employment in a religious school with a sectarian mission support this characterization, the court concludes that the plaintiff was a ministerial employee. If, on these circumstances, the Court were to conclude otherwise, it would risk infringing upon the school’s right to choose its spiritual leaders.”
Having found that the school was a religious institution, and the plaintiff was a ministerial employee, the court concluded that it had no alternative but to dismiss the case. E.E.O.C. v. Hosanna-Tabor Church and School, 582 F.Supp.2d 881 (E.D. 2008).
the appeals court’s decision
The plaintiff appealed, and a federal appeals court vacated the district court’s ruling and ordered the case to proceed to trial. E.E.O.C. v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769 (6th Cir. 2010). The appeals court acknowledged that the ministerial exception “precludes jurisdiction over claims involving the employment relationship between a religious institution and its ministerial employees, based on the institution’s constitutional right to be free from judicial interference in the selection of those employees.” It quoted from an earlier federal appeals court ruling: “The right to choose ministers without government restriction underlies the well-being of religious community … for perpetuation of a church’s existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrine both to its own membership and to the world at large.” Rayburn v. General Conference of Seventh Day Adventists, 772 F.2d 1164 (4th Cir. 1985).
The court observed that “as a general rule, an employee is considered a minister if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” It added that “the overwhelming majority of courts that have considered the issue have held that parochial school teachers who teach primarily secular subjects, do not classify as ministerial employees for purposes of the exception …. By contrast, when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church.”
The court concluded that the plaintiff was not a ministerial employee:
Her employment duties were identical when she was a contract teacher and a called teacher … she taught math, language arts, social studies, science, gym, art, and music using secular textbooks. Furthermore, the record indicates that she taught a religion class four days per week for thirty minutes and that she attended a chapel service with her class once a week for thirty minutes. She also led each class in prayer three times a day for a total of approximately five or six minutes. The record also indicates that she seldom introduced religion during secular discussions. Approximately twice a year, she led the chapel service in rotation with other teachers. However, teachers leading chapel or teaching religion were not required to be called or even Lutheran, and, in fact, at least one teacher was not. In all, the record supports the district court’s finding that activities devoted to religion consumed approximately forty-five minutes of the seven hour school day.
[In summary] she spent approximately six hours and fifteen minutes of her seven hour day teaching secular subjects, using secular textbooks, without incorporating religion into the secular material. Thus, it is clear that her primary function was teaching secular subjects, not “spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” The fact that she participated in and led some religious activities throughout the day does not make her primary function religious. This is underscored by the fact that teachers were not required to be called or even Lutheran to conduct these religious activities, and at least one teacher was not Lutheran.
In addition, that [the school] has a generally religious character—as do all religious schools by definition—and characterizes its staff members as “fine Christian role models” does not transform a teacher’s primary responsibilities in the classroom into religious activities. This is underscored by the fact that the plaintiff can only recall twice in her career when she introduced the topic of religion during secular discussions.
The court conceded that the school gave the plaintiff the title of “commissioned minister,” but concluded that “the title of commissioned minister does not transform the primary duties of these called teachers from secular in nature to religious in nature. The governing primary duties analysis requires a court to objectively examine an employee’s actual job function, not her title, in determining whether she is properly classified as a minister. In this case, it is clear from the record that [the plaintiff’s] primary duties were secular, not only because she spent the overwhelming majority of her day teaching secular subjects using secular textbooks, but also because nothing in the record indicates that the Lutheran church relied on her as the primary means to indoctrinate its faithful into its theology.”
The court also pointed out that the primary duties of “called” teachers were identical to those of contract teachers who do not have the title of minister.
The court concluded:
Given the undisputed evidence that all teachers at [the school] were assigned the same duties, a finding that [the plaintiff] is a “ministerial” employee would compel the conclusion that all teachers at the school—called, contract, Lutheran, and non-Lutheran—are similarly excluded from coverage under the ADA and other federal fair employment laws. However, the intent of the ministerial exception is to allow religious organizations to prefer members of their own religion and adhere to their own religious interpretations. Thus, applying the exception to non-members of the religion and those whose primary function is not religious in nature would be both illogical and contrary to the intention behind the exception.
One judge filed a concurring opinion in which she observed:
[The plaintiff’s] daily duties resemble to some extent those of the plaintiffs in [several other] cases in which the courts found the [teacher’s] primary duties to be ministerial in nature. Tipping the scale against the ministerial exception in this case is that, as the majority points out, there is evidence here that the school itself did not envision its teachers as religious leaders, or as occupying “ministerial” roles. The teachers are not required to be called or even Lutheran to teach or to lead daily religious activities. The fact that the duties of the contract teachers are the same as the duties of the called teachers is telling. This presence (or lack) of a predominantly religious yardstick for qualification as a teacher is a key factor in decisions finding the ministerial exception applicable and those finding it inapplicable alike …. By this measure, even courts that have found ministerial plaintiffs who have daily schedules that have roughly the same ratio of religious to non-religious activities as the plaintiff would find that the ministerial exception should not apply here.
United States Supreme Court review
The United States Supreme Court has agreed to review the federal appeals court decision, and this will give it an opportunity for the first time to address the ministerial exception, and in particular, to clarify the meaning of “ministerial” employees.
The courts have formulated the following two primary definitions of the term “ministerial employee” in the context of the ministerial exception:
“If the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision of participation in religious ritual and worship, he or she should be considered ‘clergy.'” Rayburn v. General Conference of Seventh-Day Adventists, 772 F.2d 1164 (4th Cir. 1985).
The following three factors are considered in deciding if a church employee is a “minister” for purposes of the ministerial exception: (1) Are employment decisions regarding the position at issue made “largely on religious criteria”? (2) Is the employee authorized to perform the ceremonies of the church? (3) Does the employee engage in activities traditionally considered ecclesiastical or religious? Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999).
There is little doubt that the Court will acknowledge the ministerial exception in the context of ministers performing pastoral duties for churches and church agencies. The challenge will be to clarify the meaning of “ministerial employees” in the context of lay employees performing some pastoral functions. The Court may apply one of these two definitions, or formulate its own definition. Its decision will determine the application of a range of federal and state employment laws to lay church employees whose duties include some pastoral functions.
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