Editor's Note :

Editor's Note :

At 9:30 a.m. on Monday we expect additional orders from the Court's November 25 Conference. On Tuesday, December 2, we expect one or more opinions in argued cases; we will begin live blogging at this link shortly before 10:00 a.m.

Kali Borkoski Manager

Posted Wed, October 12th, 2011 9:26 am

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

Today our Community discussion topic is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, which was argued last week. At issue in the case is the scope of the “ministerial exception” to federal antidiscrimination laws. Lyle previewed the case prior to the argument and wrote a post-argument recap; Marty Lederman also discussed the argument yesterday.  The discussion threads below suggest questions and hypotheticals that arise from this case for your consideration.


  • Kali Borkoski – 0 Promoted Comments

    Should Congress be allowed to regulate the employment relationship between churches and their ministerial employees?

    • Barak Richman – 1 Promoted Comment

      The problem with the Establishment Clause is it invites an endless syllogism. Certainly the government can’t dictate or change a religion’s core beliefs, but is there no limit to what religious leaders can say constitute those core beliefs? Can they define—and can the government not question their definition of—who qualifies as ministers? What constitutes prayer? What constitutes religious teaching? Whom is religiously subject to whom?

      There needs to be an outer limit to what the Establishment Clause protects — the Court cannot permit a religion’s leaders to characterize anything and everything as a question of religious doctrine, and thus beyond the reach of Congress’ regulatory powers. To be sure, a religious institution’s mission is multi-faceted, and any line-drawing test necessarily involves some arbitrariness. But avoiding the messy decisions and giving the Establishment Clause full-reign would give carte blanche to religious leaders to claim immunity from all generally applicable laws. This, among other consequences, will permit religious leaders to deny free exercise interests to members of their own religion. In deferring to religious authority, the Court will actually sanction economic coercion and other non-religious abuses of power that generally applicable laws are designed to prevent.

    • John Whitehead – 1 Promoted Comment

      Congress should not be allowed to regulate the employment relationship between churches and their ministerial employees as this would clearly pose a significant threat to the liberty protected by the Free Exercise Clause. If anything, the Court should resolve this case in a way that grants churches and religious institutions broad protection for their decisions involving the hiring of persons who have a role in the mission of the church or institution. A church’s position that an employee is ministerial ought to be presumed valid and constitutionally protected unless shown to be a sham. Otherwise, religious institutions will make decisions with an eye toward avoiding litigation or liability. This can only have a negative effect on the ability of churches to follow and propagate their beliefs and fulfill their mission.

    • Marci Hamilton – 1 Promoted Comment

      It was remarkable that neither side nor the Justices acknowledged a highly relevant staple in free exercise cases — the courts must often inquire into the sincerity of the religious litigant. Courts appropriately look into the factual question whether the claimed religious reason for conduct is sincere. For example, the prison administrator who challenges the prisoner who demands kosher food, but whose religious affiliation to that point is Baptist. Pretext analysis is little different. The question is whether the asserted religious reason for the otherwise discriminatory employment decision is sincerely religious or a pretext for discrimination. To fail to inquire into pretext or sincerity is to hand religious organizations and believers an immunity that violates the Establishment Clause, because it is a benefit based on status rather than sincere belief. It is also a deterrent to obeying the law. Religious organizations that have believed themselves to be above and beyond the law have committed grave crimes against children and vulnerable adults. Religious organizations that are given absolute immunity from anti-discrimination laws will violate those laws even when their beliefs do not require it. That is simply a fact, and makes this issue a matter of civil rights on both sides of the equation. The middle ground proposed by Justice Breyer and others at the argument is the most sensible balance of interests.

      • Marci Hamilton – 1 Promoted Comment

        I should also mention I expanded on this point, and had a few other observations from the arguments, in a column on Justia.com: http://verdict.justia.com/2011/10/06/hosanna-tabor-evangelical-lutheran-church-and-school-v-eeoc.

      • Justin Levine – 0 Promoted Comments

        Marci – Let me explain why I think a ‘sincerity’ test or ‘motivation inquiry’ is problematic here (and problematic in all Establishment Clause cases). Laws should govern behavior, not personal thoughts. If I perform act X for personal reasons Y, while my neighbor performs the same act X for personal reasons non-Y, it seems inequitable to allow me to do X while forbidding my neighbor to the exact same act. It seems to me that it would come dangerously close to enshrining the concept of ‘thought crimes’ within our courts.

        We have seen this problem come up when the Court has unsuccessfully tried to ‘split the baby’ with Ten Commandment display cases. (See in Van Orden v. Perry’ and compare it with McCreary County, Kentucky v. ACLU of Kentucky – both decided the same day with opposite results.) Even if one group had express ‘religious’ intent in erecting the Ten Commandments display, while another group had express ‘secular’ intent in placing their own Commandments display for cultural/historical/artistic purposes, etc., the result is the same – an objective observer will walk up to the structure and be able to view it, with no specific knowledge as to who placed it there or for what purpose. Delving into the private motivations of how a sculpture came to be ultimately has no valid place in determining its Constitutionality. (See Justice Scalia’s compelling critique of the ‘purpose prong’ in his dissent in Edwards v. Aguillard.)

        I will concede that one’s state of mind must be relevant in implementing some aspects of law (i.e., determining malicious intent in order to distinguish between murder and manslaughter for example). But even these instances must be deduced from objective and observable facts. To make intent or sincerity as the primary test for distinguishing between unlawful behavior and protected rights under the Establishment Clause seems unworkable to me. It seems to me that giving judges leave to engage in such mind reading would in effect allow them to rule on the very legitimacy of religious beliefs based on their (meaning the judges’) own personal biases.

    • Ian Scharfman – 1 Promoted Comment

      The Anti-Defamation League’s (ADL) amicus brief took a broad view of the issues in this case. For ADL, the issue is not whether the Free Exercise and Establishment Clauses provide a ministerial exception. ADL fully believes that these clauses provide such an exception with respect to ministerial employees.

      Rather, the issue is the appropriate balance between this constitutional interest and the concomitant compelling governmental interest in eradicating discrimination from the workplace. ADL’s brief argued that the ministerial exception should not serve as an effective bar to employees bringing discrimination suits. Employees of religious institutions should have the right to a court determination on whether they are or are not ministerial. To this end, the brief argued that courts should allow plaintiffs to engage in fact discovery before making the determination as to whether an employee is ministerial, instead of providing defendants with a presumptively deferential approach that merely relies on defendants’ pleadings and unexamined affidavits. The brief further argued that such a deferential approach would necessarily be over-inclusive in its application, and it also argued that treatment of the ministerial exception as an affirmative defense is the best procedural mechanism to ensure such effective judicial consideration.

    • David Dunn – 1 Promoted Comment

      I think the issue presented in Hossana-Tabor probably needs to be resolved on constitutional grounds, either directly, or by virtue of a constitutional gloss on the statute.

      Congress should generally not regulate the employment relationship between religious institutions and their ministerial employees. To do so risks entanglement in religious affairs, mission and doctrine and the core issue of dissemination and inculcation of the faith.

      I do not see how Congress could require that a particular religion ordain women priests, or permit them specific roles or positions within their clergy.

      The issue of retaliation raises somewhat separate issues from the issue of discrimination itself. It is potentially different, but there is a risk that allowing inquiry into retaliation claims would invariably involve inquiry into the underlying discrimination issues. This issue requires further development and consideration.

      Prohibiting Congressional or state application of employment discrimination statutes or rules is not the same as issues of the consequences of child abuse. In abuse situations, there is a societal interest in protecting the victims; in employment discrimination, it is the ministerial employees themselves who assert claims on their own behalf. By becoming ministers or agreeing voluntarily to perform ministerial functions for an organized religion, they are accepting the tenets, teachings and internal procedures of the particular religion and its institutions. The interests involved in employment discrimination and abuse are thus easily distinguishable.

  • Kali Borkoski – 0 Promoted Comments

    How can a court distinguish between the kinds of employees that should be covered by the exception?

    • Leslie Griffin – 1 Promoted Comment

      The specter of the Roman Catholic Church being forced to ordain women priests has repeatedly haunted discussions of the ministerial exception. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. Catholic women priests are wrongly used as a justification for the exception. I was disappointed that the women priests issue became part of the oral argument in Hosanna-Tabor, as I believe it distracts attention from the more important issues at stake in the exception.

      I count only one court case of a Catholic woman who (unsuccessfully) sued to become a priest, but at least ten cases of Catholic women who knew with absolute certainty they were not priests. Yet those women were suddenly ordained ministers when they went to court to enforce their employment contracts against Catholic employers. Their cases were dismissed. In such cases the ministerial exception protects discrimination instead of religious freedom.

      The all-male Catholic priesthood can be protected easily by First Amendment freedom of association and/or a bona fide occupational qualification [BFOQ] in employment law. The Catholic Church teaches that women cannot represent the male person of Jesus Christ. That teaching seems easily to qualify for the expressive association protected by the First Amendment. It also offers a really strong argument for a BFOQ where gender is allowed to be a requirement for the job.

      Creating the broad ministerial exception to deal with the issue of an all-male priesthood is like swatting a fly with a sledgehammer.

      Speaking of women priests….let’s not forget women whose denominations allow them to become priests or ministers or rabbis. The ministerial exception assumes that clergy should fall completely outside the protection of the employment laws. Why? Why should women clergy be barred from bringing pregnancy discrimination suits? Or male and female clergy be prohibited from suing for disabilities discrimination? In worrying about threats to an all-male priesthood the ministerial exception neglects to protect clergy who suffer unlawful treatment in the name of the First Amendment.

      • Eric Dawson – 0 Promoted Comments

        Leslie – you asked why? Because we presume that “ministers” are so committed to the pursuit and support of their faith that they voluntarily submit to the rules of their faith as a condition of their service. And it is exceedingly difficult, as the oral arguments have shown in this and similar cases, for the state to wade into “rules of the faith”.

        Now certainly there are actions which we won’t permit any faith to attempt (child abuse, etc.) no matter what their doctrines may teach, but the choice of who to sanction as a minister seems to fall squarely within the purview of the church in question. I find no meaningful distinction between permitting discrimination lawsuits and simply telling a church who it may and may not ordain as a minister, which necessarily involves discrimination (for example, I’m assuming that as a white male, I may be discriminated against if I pursue employment as a Navajo minister…and rightfully so).

        Ministry is an exceptional pursuit for those who feel deeply compelled to serve their religion. I am speaking generally, of course, but Ministers who believe that they have been treated unfairly should feel free to leave their church. However, an understanding that the state cannot and will not interfere with their employment seems to be a clear prerequisite to the pursuit of a ministerial position.

  • Kali Borkoski – 0 Promoted Comments

    What are the wider implications of the case for the relationship between church and state?

    • Kevin Baine – 2 Promoted Comments

      The fundamental question in this case is whether those who seek to serve a church in a religious capacity may invoke the power of the state in support of their desire to serve—or whether the church has the right to choose those who perform religious functions without regard to secular standards and without interference by the state. I think the Religion Clauses answer that question. If the notion of separation of church and state means anything, it means that there is a zone of church affairs that the state is powerless to regulate, and I think that zone has to include the right of a church to select its ministers. The state should no more be able to set the criteria for church office than the church should be able to set the criteria for state office.

  • Kali Borkoski – 0 Promoted Comments

    Consider the hypothetical of prohibiting gender discrimination in hiring teachers at a parochial school as it relates to this case; is prohibiting retaliation against employees any different? Does your view change if we are talking about firing a teacher for reporting suspected child abuse? What if the person reporting the abuse is the rabbi rather than a school teacher?

    • Bradley Smith – 3 Promoted Comments

      Hiring discrimination and employee retaliation can seek the same ends, and as such should be afforded the same protections under law. If the former is forbidden but not the latter, then the latter merely become the vehicle to carry out the former.

      Instances such as child abuse only make protections against retaliation all the more important. The community’s best interests are served when child abusers are reported. Teachers, at least in NY, are legally required to report suspected child abuse (this obligations extends to other professionals as well. Source: http://www.nyclu.org/publications/child-abuse-reporting-and-teen-sexual-activity-clarifying-some-common-misunderstandings).

      The mere shift of profession from teacher to ‘religious teacher’ should not complicate this matter. Justice Sotomayor made this point during argument when she said “The problem with that is that it doesn’t take account of the societal interest in encouraging the reporting. And in fact, if we — if we define the ministerial exception in the way you want, we take away the incentive for reporting; we actually do the opposite of what society needs.”

      Churches have an interest in promulgating their views. However, when their conduct violates laws void of religious intent no protections based on religion should be valid.

  • Kali Borkoski – 0 Promoted Comments

    If church authorities threaten to fire a minister if he or she testifies in court, can the church authorities constitutionally be prosecuted for witness tampering? If so, how is Hosanna-Tabor distinguishable?

  • Kali Borkoski – 0 Promoted Comments

    Might it be constitutional to provide certain remedies (e.g., back pay) but not others (e.g., reinstatement)?

  • Kali Borkoski – 0 Promoted Comments

    How can a court distinguish between minister and non-minister employees?

    • Stuart Lark – 1 Promoted Comment

      In oral arguments, Professor Laycock stated that for purposes of applying the ministerial exception, the term “minister” is ultimately a legal term and not a theological one. Given that the term as used in this context determines legal rights, it seems that Professor Laycock must be right on this point. The legal definition of “minister” in this context should turn upon the underlying purpose of the ministerial exception. Assuming such purpose is to prevent courts from interfering in the selection by religious organizations of their religious or ministry leaders, then the definition of “minister” is a religious or ministry leader in a religious organization.

      In applying this definition, courts can neither favor some forms of ministry leadership or “ministers” over others nor interpret or apply the religious tenets of an employer. These constitutional principles require courts to defer to bona fide representations of religious organizations regarding who is a minister or who exercises important religious leadership in an organization. As part of this assessment, the fact that the organization has conferred a ministry leadership title on the position (or the individual holding the position) may create a presumption that the position is a bona fide leadership position. In this regard, courts should as an initial matter defer to each religious employer’s theological understanding of a “minister,” assuming that in the vast majority of cases such theological understanding aligns with a role of leadership within the organization.

      However, given the broad spectrum of theological views on the qualifications and roles of a “minister,” sole reliance upon each organization’s bona fide theological understanding of a “minister” would be both over inclusive and under inclusive with respect to the purpose of the ministerial exception. Some religions view every member as a “minister” and reject any special titles, whereas others confer “minister” status on only a very few. Therefore, the presumption can be defeated by evidence either that the “minister” status does not involve any significant leadership role or that the status is a sham.

      These same principles of deference and neutrality also prohibit courts from limiting minister status to those positions determined by the court to be sufficiently religious. Government officials and courts have neither the competence nor the authority to distinguish between “ministerial” and other positions based on the religious character of their duties (i.e., whether such positions are sufficiently religious to be “ministerial”), and doing so results in religious entanglement and favoritism. A court may evaluate the duties of the position to determine whether the organization has made false or materially inconsistent representations regarding the religious leadership nature of the position. But to the extent the religious character of duties are relevant, such character must be based on the organization’s purpose for the duties and not on the court’s subjective measure of religiosity

  • Thomas C. Berg – 2 Promoted Comments

    Can Congress [or a civil court] tell the Catholic church it must hire women priests?

    • Thomas C. Berg – 2 Promoted Comments

      The answer has to be no, as the lawyers for both the EEOC and the plaintiff conceded in the Hosanna-Tabor oral argument. Judges could not, through an injunction or damages, tell the church to accept priests who contravened its belief that the priesthood must be male. But neither lawyer could explain why the result should be different in this case, where the court was asked to tell a Lutheran congregation to accept a minister who contravened (or threatened to contravene) a different religious belief: that ministers should not take cases against their church to court, a belief stemming from a passage of Paul’s in 1 Corinthians. Assume for the moment that Ms. Perich, a “commissioned” teacher, is a minister (a question for another thread). If the court must defer to the Catholic belief that priests must be male, how can it not defer to the Lutheran belief that ministers must not sue the church?

      The government claimed that the “balance of private and public interests” differs in the two cases. But as several justices observed, on the “private interest” side this amounts to claiming that the doctrine on dispute resolution is not as central to Lutheranism as the doctrine on male priests is to Catholicism. That is a theological judgment, and the government conceded that the Religion Clauses bar a court from making it. On the “public interest” side, the government claimed it has an especially strong interest in ensuring access to court by preventing employers from retaliating when employees threaten suit. But as Justice Breyer asked, why is the interest in preventing retaliation stronger than the interest in preventing discrimination itself, as in the male-priesthood case? The right to sue exists to protect the right against discrimination; it cannot be more important than the right it’s designed to protect.

      The government claimed that courts should strike these balances under the First Amendment doctrine of expressive association, which allows both religious and nonreligious organizations to dismiss an employee whose conduct conflicts so sharply with the organization’s beliefs that it undermines the organization’s ability to communicate its message. But calling the issue “expressive association” rather than religious freedom does not make it any more acceptable for courts to second-guess the theological importance of the dispute-resolution doctrine for Lutherans, compared with the male-priesthood doctrine for Catholics.

      More fundamentally, several justices were rightly incredulous at the government’s argument that this is simply an expressive association case-that the two Religion Clauses set no special rules for the relationship between a religious organization and the employees who perform its religious functions. Justice Kagan called the argument “amazing”; Justice Scalia, “extraordinary.” The Court should recognize the obvious: there are ways in which religious organizations are constitutionally different. Moreover, the differences are not exhausted by the rule that courts cannot make theological determinations (although that rule is relevant here too). Forcing the Catholic Church to accept women priests might require no such determinations-simply a ruling overriding the Church’s clear tenet. Yet everyone conceded it would be unconstitutional. At bottom, then, religious organizations have a distinct constitutional freedom to be able to determine who is qualified to serve as a minister. We have to decide the precise contours of that category of freedom, and who counts as a minister, but the freedom is there, as every circuit has held.

    • Greg Lipper – 1 Promoted Comment

      When it comes to the ministerial exception, the common hypothetical—What if the government orders the Catholic Church to hire a female priest?—is a red-herring. Even the narrowest conception of the ministerial exception would protect a church in that situation; and even if there were no ministerial exception, churches would almost certainly be protected under the First Amendment right to free association—as defined in cases such as Boy Scouts of America v. Dale, 530 U.S. 640 (2000). The more important question is this: Should the ministerial exception apply even in cases when not necessary to protect religious liberty?

      You might think that the answer to this question is obvious. But the lower courts have almost uniformly applied the exception much more broadly—to prohibit inquiry into even the basic question of whether the employment discrimination had anything to do with religion. Of course the Catholic Church should not be forced to hire female priests, but why should church that embraces female clergy get away with refusing to hire female ministers—or with sexually harassing their existing female clergy—merely because the hiring director happens to hold the personal view that women are purely sex objects? The ministerial exception should protect religious organizations against interference with the practice of their religion, but it should not grant a special privilege—to religious institutions alone—to discriminate for purely secular reasons as well.

    • Kevin Baine – 2 Promoted Comments

      Of course, Congress may not tell the Catholic Church that it must ordain women priests—because the Church, not the State, gets to set the criteria for ministry. The government would concede that case, because the Catholic Church has a doctrinal basis for its position. But the point is a broader one: regardless of whether the Church articulates an explicitly doctrinal basis for a decision, the point is that the church has the right to decide for itself who is fit to serve in ministry and who is best suited to serve in ministry. From a constitutional standpoint, who decides these questions is more important than why the decision is made.

  • David LeRoy – 4 Promoted Comments

    It is my understanding that the person involved here is an ordained minister in the church in question. Personally, I don’t think that makes any difference in this case. She sued, through the EEOC, under the American with Disabilities Act. This is rather clear cut regardless of the content of her class lectures or whether she was an ordained minister or not. It is a clear cut violation of the Federal law regarding workplace discrimination against the very people exemplified by the teacher in this instance. It is one thing if the church has a policy that says an ordained minister has to retire from teaching at age 50 and cite religious reasons for that age cut off, no matter how ridiculous those reasons may be. Take it to this extreme- you can only teach for 8 years because Jesus taught for 8 years (or however long it was). In that case, its their stated beliefs and their dogma and someone who decided to sue for discrimination on those grounds should not prevail. However, the defense here under the ministerial exception is that the teacher did not try to resolve the issue within her religious family. Was there a stated church policy in that area? What if she did and they still terminated her? Would that make it any less violative of ADEA? This talk about ordaining women as priests in the Catholic Church is just a sideshow that detracts from the facts in this case.

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