Religious Organisations and Secular Courts: The Ministerial Exception. Part 1.
04 Monday Apr 2011
The Ministerial exception in US case law
On 28 March 2011 the United States Supreme Court granted certiorari in Equal Employment Opportunity Commission and Perich v. Hosanna-Tabor Evangelical Lutheran Church . This means that an appeal can be brought before the US Supreme Court in which, for the first time, that court will consider the constitutionality of the legal doctrine known as the “Ministerial exception”.
The “Ministerial exception” is a US court created (common law) principle which is said to be implicit within and derived from the US Constitution’s First Amendment’s prohibition of “religious establishment” and its guarantee of “religious freedom” (see Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007) . In Weishuhn v Catholic Diocese of Lansing (No. 1), 279 Mich App 150; 756 NW2d 483 (2008) the State of Michigan Court of Appeals at 152 described the “ministerial exception” as:
“a non-statutory, constitutionally compelled exception to the application of employment-discrimination and civil rights statutes to religious institutions and their ‘ministerial’ employees. The ministerial exception has its roots in the Establishment and Free Exercise of Religion clauses of the First Amendment and generally bars inquiry into a religious institution’s underlying motivation for a contested employment decision.”
Religious institutions are said to have a constitutional right under the US Constitution to be free from judicial interference in the selection of those who work for them on the basis of a general “non-establishment” derived principle of non-interference in the internal governance of church/mosque/temple/synagogue. The ministerial exception is also motivated by “religious freedom” based concerns that secular authorities should not be involved in evaluating or interpreting religious doctrine. Consequently a broad margin of appreciation is given to religious bodies in disputes with their workers. Indeed many employment protection statutes are, in effect, disapplied by the US courts when it comes to employment by and for a religious institution, for example:
(1) minimum wage: in Rosas v. Corporation of the Catholic Archbishop of Seattle (March 16, 2010) the US Court of Appeals (9th circuit) applied the ministerial exception to strike out a “minimum wage” claim for unpaid overtime which had been brought by two Mexican seminarians working in a parish placement in the Catholic Diocese of Seattle.
(2) sex discrimination: in Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th circuit, 2004) the US Court of Appeals ruled that no claim could be brought by a Presbyterian Minister associate pastor against her employer for sex discrimination in first limiting her duties, suspending her, and then terminating her employment, since the court considered that this head of the claim fell squarely within the “Ministerial exception”. The Court of Appeals did, however, allow her claim for damages based on sexual harassment claim to proceed against her Church employer on the basis that sex harassment was not “a part of the minister’s employment relationship with the church” (see, to like effect, Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (1999) .
(3) disability discrimination: in Werft v. Desert Southwest Annual Conf. of the United Methodist Church 377 F.3d 1099 (9th circuit, 2004) the US Court of Appeals held that the decision whether or not to accommodate a minister’s physical disability was a matter touching directly upon the protected relationship between a church and its minister, and therefore fell fully within the Ministerial exception and was accordingly not justiciable. The decision in Equal Employment Opportunity Commission and Perich v. Hosanna-Tabor Evangelical Lutheran Church, 9 March 2010, US Court of Appeals (6th Cir, 2010) which is the subject of the appeal to the US Supreme Court also involves a claim of a breach by the employer of their duties to employees under the Americans with Disabilities Act.
(4) discrimination on grounds of national origins: in Gloria Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003) the US Court of Appeals struck out a claim made by a woman of Hispanic origin to the effect that her church employers had discriminated against her both on grounds of her national origins and on the basis of her gender.
(5) whistle-blowing disputes: in Weishuhn v Catholic Diocese of Lansing (No. 2) 26 January 2010 the State of Michigan Court of Appeals applied the ministerial exception to the civil rights and whistleblower violation claims made by a teacher of maths and religion in a parochial elementary school against her Church employers.
As was has been observed in “Notes – the Ministerial exception to Title VII: the case for a deferential primary duties test” 121 Harvard Law Review 1776-97 (2008) at 1776.
“The ‘ministerial exception’ allows religious employers to avoid liability for discrimination when making employment decisions concerning employees who qualify as ministers. Nearly all courts determine ministerial status under a primary duties test that considers whether an employee’s job responsibilities render him ‘important to the spiritual and pastoral mission of the church’. If so, the court will bar the employee’s discrimination claim in order to protect church autonomy. Although the Supreme Court has never endorsed the ministerial exception, every circuit court to have considered the issue has adopted the exemption.”
In theory, the “ministerial exception” can only be prayed in aid by religious institutions in relation to those of their workers who carry out ministerial or spiritual functions for their churches or congregations. But the US courts have developed a broad test for what constitutes a “spiritual or Ministerial function”. Thus in Melanie Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999) the US Court of Appeals applied the Ministerial exception to strike out a claim made by a woman who had been employed as a church music director. In Rosas v. Corporation of the Catholic Archbishop of Seattle, March 16, 2010 (9th circuit, 2010) the US Court of Appeal observed at paragraph 12:
“[I]if a person (1) is employed by a religious institution, (2) was chosen for the position based ‘largely on religious criteria’, and (3) performs some religious duties and responsibilities, that person is a ‘minister’ for purposes of the ministerial exception.”
And so – in what might be seen as adding legal insult to spiritual injury – even in relation to religious bodies which would deny them the possibility of ordination, women can be found by the courts to be “ministers” for the purposes of the application of the Ministerial exception, such as to deny them the protection of employment protection and equality laws. Thus in Equal Employment Opportunity Commission v. Catholic University of America, 83 F.3d 455, 461 (D.C. Cir. 1996) the US Court of Appeals found that a Catholic nun whose primary duties were to teach canon law at Catholic University and who was “entrusted with instructing students in the ‘fundamental body of ecclesiastical laws’ that governs the Church’s sacramental life, defines the rights and duties of its faithful and the responsibilities of their pastors, and guides its administration” was a ministerial employee. In Gloria Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003) the Ministerial exception was found to cover the employment by a church of a “Hispanic communications director”. And in Lynette M. Petruska v. Gannon University and others (Case No. 05—1222 – Decided September 6, 2006) 462 F.3d 294 the United States Court of Appeals for the Third Circuit held that a woman appointed to the position of permanent University Chaplain to private Catholic diocesan college located in Erie, Pennsylvania could not sue her employers in respect of her allegations that her dismissal from her position had been tainted by motives of sex discrimination.
By contrast, in Equal Employment Opportunity Commission and Perich v. Hosanna-Tabor Evangelical Lutheran Church, 9 March 2010, US Court of Appeals (6th Cir, 2010) refused to extend the Ministerial exception to a disability discrimination/dismissal claim made by general primary school teacher employed in a school affiliated to Lutheran Church-Missouri Synod who also taught a daily half-hour religion class and daily led her class in prayer. It is in relation to this last case that the petition for a writ of certiorari to the US Supreme Court has been successfully presented on behalf of the Lutheran Church. The petition for certiorari in the case noted as follows:
“The federal courts of appeals have long recognised the ‘ministerial exception’, a First Amendment Doctrine that bars most employment-related law suits brought against religious organisations by employees performing religious functions. The circuits are in complete agreement about the core application of this doctrine to pastors, priests and rabbis. But they are evenly divided over the boundaries of the ministerial exception when applied to other employees. The question presented is:
Whether the Ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.”
Part 2 of this post will examine the UK and EU case law on this topic and compare the approach of the European Courts to that of the US.