The Uncertainty in Applying the Ministerial Exception Post Hosanna-Tabor

By: Marni Weiner

The Supreme Court recently issued a decision on the ministerial exception, but it’s holding is still sufficiently vague and leaves an uncertain standard for precedent to follow.  The ministerial exception, stemming from the First Amendment, regards the relationship between the minister and the religious institution, emphasizing the church’s sole authority to determine who will “minister to the faithful.”[1]  This ensures that the court does not “interfere[] with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”[2]  The term minister is defined as “persons who work for religious bodies,” and not necessarily a member of the clergy as in the Protestant religion, because not all religions “employ the term minister.”[3]  The court looks to the “function of the position” when determining if an employee is a minister.[4]  The ministerial exception precludes “application of employment discrimination legislation to claims concerning the employment relationship between a religious institution and its ministers.”[5]  The church is therefore allowed to hire or terminate a minister without interference.[6]

The Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C. refused to adopt any sort of “rigid formula” to determine whether an employee of the church qualified as a minister for purposes of the ministerial exception.[7]  Instead, it looked to factors such as formal titles, training and if the plaintiff performed important religious functions within the church.[8]  The plaintiff in Hosanna-Tabor, Cheryl Perich, was a “called” school teacher, responding to a “vocation by God” as opposed to lay teachers in the school.[9]  Perich also had “significant religious training and a recognized religious mission” underlying the description of her position.[10]  Her duties at the school included teaching both secular and religious classes, leading the daily prayer, daily devotional exercises and bringing her students to a school-wide chapel service once a week.[11]  Perich also took the opportunity to lead the chapel service twice a year, where she would select the liturgy, hymns and convey a message from Bible verses.[12]

Perich’s extensive religious training and “formal process of commissioning,” landed her the title of Minister of Religion, Commissioned, and a diploma of vocation.[13]  Perich’s job duties from the Church carried out the Church’s mission and “transmit[ed] the Lutheran faith,” along with “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as dram from the Sacred Scriptures.”[14]  The Church regularly reviewed her skills of ministry and ministerial responsibilities.[15]  She also stated, “I feel that God is leading me to serve in the teaching ministry” when she was terminated, proving her belief in her “calling” and ministerial status, therefore holding herself out as a minister of the church.  Justice Thomas in his concurrence stated that the fact that Hosanna-Tabor held Perich out as a minister was “sufficient… to conclude that Perich’s suit is properly barred by the ministerial exception.”[16]

She requested a disability leave in 2004 and was not able to return to work until February of 2005.[17]  The school had already hired a replacement and was concerned that Perich was not ready to return.[18]  They offered to pay a percentage of her health insurance if she would resign as a peaceful release, but she refused the offer.[19]  The court held that due to Perich’s formal title, the substance of her title, her personal use of that title and the important religious functions she performed for the church, she was a minister within the ministerial exception.[20]

The court in Dias v. Archdiocese of Cincinnati employed the same multi-factoral analysis from Hosanna-Tabor.[21]  Christa Dias, a computer teacher in a Catholic school, was terminated for becoming pregnant out of wedlock.[22]  The school originally fired Dias for premarital sex, against the teachings of the Catholic Church, but when they found out that she was artificially inseminated, the school reasoned that artificial insemination is “gravely immoral” as the reason for her termination.[23]  Defendants filed a motion to dismiss based on the ministerial exception, but the court denied the motion due to Dias’ lack of religious responsibilities.[24]  Dias was a non-Catholic teacher and did not teach any religious classes.[25]  The church did not hold Dias out as a minister, did not give her a religious title, or review her “skills in ministry” because she did not have any.[26]  She never had religious training, never led devotional exercises and did not hold herself out as a minister.[27]  The court awarded her damages, back pay and putative damages, differentiating her from the plaintiff in Hosanna-Tabor.

It will be interesting to see how the courts use the decision in Hosanna-Tabor to define a minister in the future, because the multi-factoral analysis can pose serious disparities within circuit courts in the pending cases in light of Hosanna-Tabor.

[1] See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694 (2012).

[2] Id. at 706.

[3] Hosanna-Tabor, 132 S.Ct. at 711, 714 (Alito, J. and Kagan, J., concurring).

[4] Id. at 714, 716 (citing Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164, 1168 (1985)).

[5] Hosanna-Tabor, 132 S.Ct. at 696, 697.

[6] Id. at 696.

[7] Id. at 707.

[8] Id. at 707-08.

[9] Id. at 695.

[10] Id.

[11] Id. at 696.

[12] Id. at 696, 708.

[13] Id. at 697-98, 707.

[14] Id. at 698, 707.

[15] Id. at 707.

[16] Id. at 711 (Thomas, J., concurring).

[17] Id. at 696.

[18] Id.

[19] Id. at 696, 700.

[20] Id. at 708.

[21] Dias v. Archdiocese of Cincinnati, 2012 U.S. Dist. LEXIS 43240 (S.D. Ohio Mar. 29, 2012); See Hosanna-Tabor, 132 S.Ct. at 695.

[22] Dias, 2012 U.S. Dist. LEXIS at 2.

[23] Id. at 3.

[24] Id. at 24.

[25] Id. at 14.

[26] Id. at 14; See Herx v. Diocese of Fort Wayne-South Bend, Inc., et al., Case No. 1:12-CV-122 RM (N.D. Ind. Apr. 12, 2012) (Plaintiff was Catholic, did not teach spiritual or religious topics, and did not have any formal religious training).

[27] Dias, 2012 U.S. Dist. LEXIS at 14.


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