Nyemaster Goode, P.C.

Religious Employers Shout "Hosanna!" in Response to Supreme Court's Recognition of Ministerial Exception

By Frank Harty

Both the Federal and Iowa constitutions contain prohibitions on the legislature making any law regarding the "establishment of religion, or prohibiting the free exercise thereof."  Federal and state courts consistently have interpreted both of these clauses to prohibit the government from interfering with hiring and firing decisions by churches, schools, and other employers affiliated with religious groups.   Consequently, courts have held that the First Amendment exempts certain religious employers from antidiscrimination laws such as Title VII, the ADA and the Iowa Civil Rights Act when applied to employees who act as ministers to their denominations.  A dominant issue in most of these cases has been exactly which employees constitute "ministers." 

On January 11, the United States Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC officially recognized what is commonly known as the "ministerial exception."  In rejecting the disability discrimination claims of a school teacher who taught primarily secular subjects in a Lutheran school, the Court gave a broad reading to the ministerial exception and emphasized that religious groups must retain the ability to choose those individuals who are entrusted with carrying out the faith-related mission of the entity.  As the majority opinion stated, "the church must be free to choose those who will guide it on its way."  This broad statement can be read to mean the ministerial exception extends far beyond the head of a religious organization or even those who may be accorded a certain title or position.

In Hosanna-Tabor, the Court found a number of factors relevant in holding the teacher was a minister and not protected by the ADA. The teacher had been required to complete a Lutheran religious studies course as a condition of employment, after which she was formally commissioned as a "minister" according to Lutheran doctrine. In addition to her classroom duties of teaching math, language arts, science, and social studies, among other subjects, she taught a religion class, attended a 30-minute prayer service with her students once per week and led the service twice during the school year, and led her class in daily prayer.  According to Lutheran internal practices, she performed important religious functions and the Court held that her extensive duties teaching non-religious subjects did not matter to its analysis of whether the ministerial exception applied.  The First Amendment did not allow a court to second-guess the Lutheran Church's determination that the employee was a minister.

Interestingly, the Court held that the ministerial exception was an affirmative defense, not a jurisdictional bar to all employment discrimination suits in the first place. It is uncertain what this distinction will mean for future litigation as the lower courts apply the ministerial exception.  As a practical matter, the Hosanna decision does not foreclose the filing of these types of lawsuits.  The Court stated:  "District courts have power to consider [discrimination] claims in cases of this sort, and to decide whether the claim can proceed or is instead barred by the ministerial exception." The Court's ruling permits an employee to file a suit claiming he or she has been discriminated against on the basis of a protected characteristic. The religious employer will assert an affirmative defense stating the case must be dismissed because the employee is a minister.  Presumably, the court will be limited by the First Amendment to engage in a narrow inquiry as to whether the employer considers the employee to be a minister. Only after the court determines that the employer considered the employee to be a minister will the case be dismissed.

This broad protection is good news for employers of religious workers. The Court emphasized that it was addressing the ministerial exception only in the context of a discrimination claim, and was not addressing the exception's applicability to other types of claims such as breach of contract or "tortious conduct" against an employee.  Those types of claims will have to be addressed in future cases.


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