The U.S. Supreme Court made the Right Decision When It Upheld the Ministerial Exception

Since the U.S. Supreme Court issued its unanimous decision in Hosanna-Tabor v. EEOC on January 11, 2012, there has been a lot of discussion regarding whether the court did the right thing when it upheld the ministerial exception and denied jurisdiction in a case involving the termination of a ministerial employee. For reasons outlined below, I believe the Court made the right, albeit difficult, decision.

This was the case of the parochial school teacher who in addition to teaching on secular subjects also performed religious functions, Cheryl Perich, who was fired for threatening to file a lawsuit under the Americans with Disaiblities Act when she was not given her job back after returning from medical leave.  The religious employer argued that it was against its religious beliefs for a minister to sue the church, and that these things had to be handled within the church structure.

The issue presented before the Court was whether the anti-retaliation prohibition of the Americans with Disabilities Act (ADA) could be constitutionally applied to a religious association’s retaliatory firing of a parochial school teacher who taught secular subjects and also performed religious functions and was designated a commissioned minister.

The Supreme Court found that the Establishment and Free Exercise Clauses of the First Amendment bar ministers from bringing lawsuits against their churches in which the ministers claim violation of employment discrimination laws. In this case, the Court found that Perich was a minister within the meaning of the ministerial exception, and therefore the First Amendment required dismissal of her employment discrimination suit against her religious employer.

The ministerial exception gives religious institutions certain rights to control employment matters without interference from the secular courts. It does not, as the Court decision points out, affect criminal, tort, or contract law. So churches cannot use it to shield themselves from liability for criminal acts, negligent behavior leading to accidents, or breach of contract.  But it does protect churches from being hauled into court for religious decisions that have been made.

Some have tried to advance the theory that Perich had not fully pursued the administrative remedies available to her in the parochial system, but that would not have changed the outcome which hinged on the threshold issue of whether the ministerial exception applied to her. If the exception applied, the Court lacked jurisdiction.

Another misconception is that the Hosanna-Tabor decision somehow establishes the ministerial exception and adds something new. In reality, Congress specifically built an exception for religious organizations into Title VII of the Civil Rights Act of 1964. Title VII was enacted by Congress to prohibit employment discrimination on the basis of race, color, religion, sex, or national origin. (42 U.S. C. §§ 2000e-2(a)). Under the statutory exception, religious employers could prefer members of their own faith in making their hiring decisions.

The actual ministerial exception was born in 1972, when, in McClure v. Salvation Army, the U.S. Court of Appeals for the Fifth Circuit refused to hear a female minister’s gender discrimination claim. The court found that applying the provisions of Title VII to the employment relationship existing between a church and its ministers would therefore “cause the State to intrude upon matters of church administration and government” which would “result in an encroachment by the State into an area of religious freedom.”

The way it works is that courts in most Circuits rely upon a role-based or “primary duties test” to determine whether an employee is a minister within the exception, and whether or he she can bring suit under Title VII. Several circuits have adopted an approach that religious institutions should be able to choose who will perform certain spiritual functions. The first approach focuses on the employment relationship, while the second focuses on the right of churches to exercise their beliefs more freely.

Perich was, in many ways, the perfect “poster child” to challenge the ministerial exception. The case clearly involved a non-religious issue and for all the world, it looked like the church was looking for a way to fire her in a way that would be against public policy as applied to secular organizations and still avoid being hauled into court for violating the Americans with Disabilities Act.

In fact, the EEOC, the ACLU, and Americans United for Separation of Church and State (“AU”) rallied to Perich’s side. In its brief, AU argued that the ministerial exception did not entitle religious entities to discriminate or retaliate for reasons unrelated to religion, and that courts should determine whether an asserted religious justification for an action is pretextual.

In short, a church would therefore need to pass a two-prong test – first, it would have to demonstrate that its discriminatory rule was related to its religious beliefs; second, it would need to demonstrate that its action was not “pretextual.”

The AU brief gave some examples of what it meant to litigate on issues of discrimination that were not particularly related to a church’s doctrine. For instance, a Catholic Church could not be forced to hire a female priest, but an otherwise egalitarian church would not be permitted to fire a Sunday-school teacher when the pastor had a purely personal belief that “women should not work outside the home.”  The examples continued for several pages, permitting organizations to make discriminatory doctrinal rulings but not permitting local churches from acting in contrast to non-discriminatory denominational policies or practice.

Applying an Employment Division v. Smith style argument, AU argued that generally applicable employment laws should apply to churches unless there is a need to safeguard a constitutional right. Why they would appeal to this analysis is particularly curious. The Smith decision created a major problem for free exercise of religion by subjecting religious minorities to the rule of the majority even if it goes against the minority’s religious beliefs. (One can hope that the Court, in the near future, might see the wisdom of applying the Hosanna-Tabor analysis to individual religious liberty rights and re-establishing the Free Exercise Clause that was compromised in Smith.)

The AU brief is helpful in that it provides a concrete example of the depth to which the government and courts would need evaluate in order to determine whether church employment decisions were permissible or not.

Under the approach proposed by AU, church decisions would be open to scrutiny as to whether they were doctrinal or not, and the investigators would then need to go into the minds of the decision makers to see whether such decisions were made in good faith and not merely to achieve a favorable outcome for the institution.

As people often say, bad cases often make bad law and the Supreme Court had just such an opportunity to throw away the ministerial exception in this highly sympathetic case and effectively destroy the wall of separation of church and state by allowing the state entry into the inner workings of the church. Fortunately the Court saw the bigger issues involved and made the right decision.

However by ruling the way it did, the Supreme Court protected the right of a religious organization to select its clergy without government interference and avoided placing church doctrine under government interpretation. Civil magistrates will not be in a position where they are forced to determine which religious view, that of the clergy member or the church, is correct.

Church leaders are free to choose ministers who they believe will carry their message forward.

While most religious organizations sincerely strive to provide fair and equitable treatment to all employees, this does not mean that some religious organizations will not abuse the “ministerial exception” to make poor personnel decisions that could lead to costly litigation if they were secular organizations. But organizational decision makes should realize that they will ultimately answer to a Higher Power even if these cases may not be pursued in the civil courts.

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For more information on the ministerial exception and its history, I would recommend the Charleston Law Review article by Todd Cole, “The Ministerial Exception:  Resolving the Conflict between Title VII and the First Amendment.” The article is available online at http://www.charlestonlawreview.org/archive/vol4num4/Cole.pdf

 

 

BREAKING NEWS – Russia Moves to Liquidate Fifty-Six Religious Groups

On October 15 the Russian Ministry of Justice took steps to begin liquidating 56 non-Russian Orthodox religious organizations.  The groups face dissolution, Russian news sources reported, because they failed to file required annual reports on their activities. Those targeted include a range of non-Russian Orthodox organizations and churches but hardest hit were various Christian groups, both Protestant and Catholic.  Baptist groups were prominent on the list, but Methodist, Presbyterian, Lutheran, Seventh-day Adventist and Pentecostal groups were also included. Well known humanitarian groups such as World Vision and Youth with a Mission were also named, as was the Russian branch of the Billy Graham Evangelistic Association.   Non-Christian organizations were also named, including Muslim and Buddhist associations.

According to the Slavic Legal Center in Moscow, many of the organizations believe they are in full compliance with filing requirements and are surprised to be included in the list.  They are unsure if the posting is a scare tactic or if the Ministry of Justice indeed intends to pursue liquidations on a massive scale. Anatoly Pchelintsev, an attorney for the Slavic Center for Law and Justice, remarked that “such actions fly in the face of official Russian state policy on the freedom of worship and creed.” Pchelintsev believes the responsible officials are unaware of the complicated international ramifications of their actions and cites the possibility of “chaos and destabilization in church-state relations.”  He added that in the case of most of the affected organizations, the threatened punishment goes too far.  “In Russia there already are more than a dozen cases in which courts rendered decisions in favor of religious organizations since the punishment for their failure to submit information did not formally fit the crime committed.”  Moreover, he added, “liquidation for failure to submit information is equivalent to sentencing a jaywalker to the death penalty. After all, liquidation means that the organization’s life is put to an end.”  In addition, said Pchelintsev, “such actions are inconsistent with the policy of the Russian government, which guarantees freedom of conscience and religious confessions for each person. The widespread liquidation of religious associations for petty violations will lead to the crudest infringement of human rights in our country and to the self-isolation of the government.”

Pastor Vitaly Vlasenko, Director for External Church Relations of the Russian Union of Christians-Baptists, had a less dramatic reaction.  He warned against undue alarm, suggesting that the action by the Ministry of Justice is a mere “wake-up call.”  He reported that thousands of religious organizations were registered during the 1990s, and that because a number of them are now defunct, the Ministry is probably only attempting to clear out organizations that no longer function.  In some cases, he noted, registered and actual activities no longer match. For example, he said, in one instance, “a Baptist organization registered in Moscow is active only in Siberia.”

However, according to Joseph K. Grieboski, president of Washington DC’s Institute for Religion and Democracy, “the move to liquidate several organizations can be seen only as a move to limit and control their activity further.   Despite recent European Court of Human Rights cases against such activities and registration standards, the Russian Government continues its ongoing tightening of religious activity and continues to threaten free exercise of faith in Russia.”

It is too early to know precisely why the Ministry is threatening dissolution of so many religious groups.  Russians are accustomed to a degree of arbitrariness and intimidation as pertains to non-Orthodox religions, but are such threats really necessary?  Could not the organizations have been contacted separately and asked to supply needed information for compliance rather than discovering from outside sources that they suffer possible dissolution?    According to Pchelintsev, a majority of the organizations named in the list are seriously frightened, if not already in panic mode.

The Ministry of Justice’s action only bolsters the claim by many within Russia that the government is not serious about religious freedom but consistently works in tandem with the Russian Orthodox Church to pester, persecute and eliminate if possible other religions.  By most estimates, more than eighty percent of Russians today identify themselves as Orthodox. There is a saying in Russia: “To be Russian is to be Orthodox.”  Nevertheless, the restructuring of Russia that began in the late 1980’s was supposed to be about creating a democracy where freedom was ensured for all citizens, and all religions were to have equal standing before the law. 

But the Russian Orthodox Church was always a vocal critic of this new policy of religious freedom, and prevailed upon the Duma to pass a highly restrictive new law in 1997 that slowed Russia’s experiment with unlimited religious freedom.  This law, which comprehensively regulates church-state relations in Russia, specially acknowledges the unique contributions to Russia’s culture and statehood of several of the nation’s oldest religions––Russian Orthodoxy in particular–but it also discriminates against the Federation’s less traditional religions by requiring special registration procedures and by limiting the scope of the activities in which they can lawfully engage. 

Many religious organizations have already been liquidated under this law; frequently it has been used as a tool for officials throughout Russia to remove unwanted religious groups.  In the spirit of this sanctioned discrimination, it remains difficult for many religious organizations to buy or even rent property to be used for worship purposes, meet for worship services, conduct schools, disseminate religious literature, or proselytize.  “The Russian Orthodox Church is already halfway towards becoming a state church,” the business daily Kommersant wrote recently.  Another kind of disquiet was expressed by Anatoly Krasikov, an expert in socio-religious studies at the Russian Academy of Sciences, who warned, “if Orthodoxy becomes a new ideology, we’ll be right back to a totalitarian state.”  

 ”if Orthodoxy becomes a new ideology, we’ll be right back to a totalitarian state.”  

The Ministry of Justice’s action against 56 religious organizations might be a genuine but harmless attempt to bring the organizations into compliance with law.   But many inside Russia doubt whether there is not something more troublesome at play here.   It might well be Russia’s latest attempt to elevate Russian Orthodoxy to a position made prominent by reducing and eliminating the competition.  Russia must confront the task of how best to treat religion and religious institutions within an emerging democratic order.   Given Russia’s history, the Russian Orthodox Church might expect to have a dominant cultural role long into the future, but it is the Russian people, in democratic course, who must ultimately deny the church a preferred legal position. Their decision is key to the advance, or decline, of freedom in the new Russia.

 

 

Derek H. Davis, J.D., Ph.D. is Dean of the College of Humanities and Dean of the Graduate School as well as director of the Center for Religious Liberty at the University of Mary Hardin-Baker in Belton, Texas.

The mission of The University of Mary Hardin-Baylor Center for Religious Liberty is to advance religious liberty for all persons, in all parts of the world, without regard to their religious, ethnic, gender, racial or national background. Religious liberty is a basic human right that must be nourished and protected by all human societies; it is the cornerstone of modern societies’ efforts to build a more peaceful world. The Center advances this mission by publishing relevant literature, hosting and sponsoring lectureships and conferences, sharing its expertise with media and other public information outlets, and partnering with other persons and groups who share the goal of advancing religious liberty.  The web site for the Center can be found at www.umhb.edu/academics/crl

Photography by Ryan J. Bell.