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Supreme Court ruling recognizes freedom of churches to hire, fire own ministers

In a recent case, the U.S. Supreme Court delivered one of the most important decisions on religious freedom in a generation.
The high court’s ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission addresses churches and church employees in employment discrimination cases.
Justices unanimously recognized a “ministerial exception” to claims against religious bodies for employment discrimination. In other words, churches get to decide who serve as ministers. If a church fires a minister, the church cannot be sued under federal anti-discrimination laws.  
Harking to English history, the colonies and the founding era, the Court found that religious liberty depends on a religious group being free to choose its own ministers. A government cannot use laws that prohibit employment discrimination, such as the Americans with Disabilities Act, to tell a religious congregation whom to hire or keep as its minister.
In Hosanna-Tabor, a Lutheran congregation operated a school with an explicit religious mission to provide a “Christ-centered education.” The church made a distinction between “called” teachers who were ordained, received religious training and provided religious instruction and “lay” teachers who taught secular subjects and were not ordained. 
Cheryl Perich was a “called” teacher. But after she developed a chronic illness, the school replaced her with a lay teacher. Church leaders asked Perich to resign as a “called” teacher and offered to pay for her medical insurance.  
She refused to resign, appeared at the school, made demands and threatened suit. The congregation then fired her, and she filed a complaint with the Equal Employment Opportunity Commission. She maintained that the school had retaliated against her for threatening to sue under the Americans with Disabilities Act.
The EEOC sued the school for the alleged discriminatory retaliation, and the church responded that it has a constitutional right to decide who serves its congregation and school as a minister.   
After mixed results from the lower courts, the U.S. Supreme Court ruled in favor of the church.
Unanimously, the Court found that the First Amendment prevents the government from telling a church whom it must keep as a minister. Justices also found that a “ministerial exception” exists to legal protections against employment discrimination.
The Court ruled that “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Then the Court grappled with the hardest and most obvious question: Who is a minister?  
Should a court count the hours of a worker to see if she works more or less hours in religious or secular tasks? Should a court take a church’s word for it? Should a court defer to a title? Do titles matter at all?   
These questions will be especially interesting for Churches of Christ, which generally adhere to the doctrines of a “priesthood of all believers” and of congregational autonomy with very little guidance on who or who is not “ordained.”
Without a clear clergy-laity distinction and with different practices among congregations, the answer to the question likely will be case-specific and circumstantial. Also, some tension may arise within churches who limit “ministerial” roles to very tight categories but would want the “ministerial exception” to apply to as many employees as possible.  
Rather than create a formal definition or rule, the Court considered several factors in finding that the teacher in Hosanna-Tabor was a minister.
• First, the church held her out as a minister by giving her training and credentials and by directing her to do her work “according to the Word of God.”  
• Second, the church gave her a formal title, but the Court repeats that the title is merely relevant, not determinative.
• Third, the teacher held herself out as a minister by accepting her call and its terms and by claiming the ministerial housing allowance on her tax returns.   
• Fourth, her job duties “reflected a role in conveying the church’s message and carrying out its mission,” by teaching religious classes, leading students in prayer and devotionals, leading chapel and teaching Scripture.   
These factors illustrate how the Court would identify a minister, by the person’s function and role in the religious body, not by a formal definition or rigid legal test. (Justices Clarence Thomas, Samuel Alito and Elena Kagan argued in their concurring opinions for clearer definitions of “minister.”) 
Hosanna-Tabor does not mean that churches are immune from any law. Churches still can be liable in civil suits, for criminal violations and even for employment discrimination.  
The Court’s opinion is more modest. The ruling applies to congregations with enough employees to trigger anti-discrimination laws, and it holds that churches are likely exempt from anti-discrimination laws if the employee in question is a minister.
Determining who is a “minister” will be an uncertain process of considering whether the employee plays a religious role in the mission and work of the congregation and in transmitting the faith.
Hosanna-Tabor is an important decision, but it is modest and specific. Churches still should be cautious, caring and just with employees. Questions remain, and the calls may be close.

JEFFREY R. BAKER is an associate professor of law and the director of clinical programs at Faulkner University Jones School of Law.  Baker, his wife, Jennifer, and their two daughters attend Grace Pointe Church of Christ in Montgomery, Ala.

  • Feedback
    Churches are protected by the Constitution. Businesses owned by churches are not and must abide by the same rules with which other businesses are required to comply. If a business owned by or affiliated with a church can be considered a church imagine IBM starting a church and having the church own IBM thus absolving IBM of the need to pay taxes or to follow the laws governing businesses.
    John Jenkins
    Great Smoky Mountains Church of Christ
    Gatlinburg, TN
    February, 9 2012

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