Hosanna-Tabor and the ministerial exception.

• Author: Laycock, Douglas

1. THE FACTS A. The Facts Relevant to the Ministerial Exception B. The Facts Relevant to Whether There Was Discrimination II. FRAMING THE CASE IN THE SUPREME COURT III. THE LEGAL ARGUMENTS A. Vocabulary B. The Reasons for the Rule 1. Religious Rules That Would be Prohibited in Secular Employment 2. The Church's Right to Evaluate and Select Its Own Ministers C. The Supreme Court Precedent 1. The Church Governance Cases 2. Employment Division v. Smith D. Litigating These Cases Without a Ministerial Exception IV. THE COURT'S OPINION This case began, as so many do, with a local dispute inside a church. A member of the congregation represented the church in the lower courts. This lawyer was not a religious liberty specialist, but he preserved all the issues for appeal, so he did his job. The Becket Fund for Religious Liberty discovered this case as it came down in the Sixth Circuit and offered to do a petition for rehearing and then a petition for certiorari. After rehearing was denied, they called and asked if I would help with the cert petition.

   The Becket Fund lawyers were a lot more enthusiastic about the case than I was. From our perspective, the case had some good facts and some bad facts. But by the end, I thought this should be a clear case for the Church. And we now know that the Supreme Court agreed. (1)

1. THE FACTS

   1. The Facts Relevant to the Ministerial Exception

      There were two plaintiffs in the case. The Equal Employment Opportunity Commission (EEOC) has authority to file suit on behalf of employees. (2) The EEOC did so in response to a charge filed by Cheryl Perich, who subsequently intervened as an additional plaintiff. (3) Cheryl Perich was a commissioned minister in the Lutheran Church--Missouri Synod and taught fourth grade at the Hosanna-Tabor Evangelical Lutheran Church and School. (4) If she had been a nun serving as a school teacher, everyone would have understood the religious significance of her position, and this would have been a very easy case. But commissioned minister is a position that is unfamiliar to most people outside the Lutheran Church.

      Commissioned minister is a position that Lutherans have derived from a passage in the Book of Acts, where the Apostles first appoint assistants to help them. (5) The commissioned minister is clearly distinguished from the laypeople on the one hand and from the ordained pastor on the other. The commissioned minister is understood to perform part of the responsibilities of the ordained pastor. (6) The ordained pastor is responsible for teaching the faith to all the faithful, including the children, and he can delegate some of his responsibilities to commissioned ministers. (7) In the Lutheran understanding, "[a] Christian teacher, for instance, is not merely a Christian who teaches but a servant of Christ and the church who, at the call of the church, is helping the called pastor to fulfill his mandate to teach the Gospel." (8)

      To be a commissioned minister, a candidate must complete eight college-level theology courses and be approved on standards of Christian faith and character. (9) Once certified as eligible, a candidate must be called by a congregation. (10) A call can be rescinded only for cause and by a supermajority vote of the congregation that issued the call. (11) Perich's call was ultimately rescinded by the congregation at Hosanna-Tabor. (12)

      Perich taught a religion class four days a week, and led her class in daily prayers and devotional exercises, devoting about forty-five minutes of class time to religion each day. (13) In rotation with the other six teachers at the school, she planned and led chapel services. A rotation of seven teachers implies that she led chapel about five times a year, but the Court accepted her testimony that she led chapel only about twice a year. (14) At those chapel services, she delivered short messages on the scripture readings. (15) To outsiders, such messages look exactly like short sermons, but Lutherans distinguish such "teaching" of religion from preaching in the adult worship service, which is a function reserved to the ordained pastor. (16)

      Perich also taught the rest of the fourth-grade curriculum, so the Sixth Circuit concluded that her primary duty was to be a schoolteacher. (17) That court treated her religious duties as incidental and her status as commissioned minister as a mere title. (18)

   2. The Facts Relevant to Whether There Was Discrimination

      The facts summarized so far, concerning whether Perich was a minister, were the facts relevant to the questions before the Supreme Court. But, of course, her lawyers and the government's lawyers also wanted to focus attention on the other facts of the case. What would her retaliation claim have been about if it had been allowed to go forward? What would her disability claim have been about if she had filed a disability claim? Each plaintiff devoted several pages of its brief to what a terrible employer the Church had been. (19) So let me tell you what the Church did right and what some people think it did wrong. What it did was clearly within the teachings of the Lutheran Church.

      This employment dispute first arose as a disability issue, although neither plaintiff pled a disability claim. Perich became sick in June 2004 and was still unable to return to work in the fall. (20) Her diagnoses and projected return dates kept changing. (21) The school's initial response was to carry her on the payroll and try to preserve her job. Now this was a very small school. There were seven teachers and eighty-four students at the time the record was compiled. (22) Even so, the Church carried her at full pay and full benefits for seven months, from June to January. (23) In an attempt to preserve her job, they put three grades in one classroom rather than hire a replacement in the fall semester. (24)

      The Disability Act requires an employer to accommodate any disability to the extent that it can do so without undue hardship. (25) In our opinion, the Church went far beyond the point of undue hardship. The Family and Medical Leave Act, which explicitly addresses the question of how long an employer must hold a job open for a sick or temporarily disabled employee, requires twelve weeks of unpaid leave, not seven months of paid leave. (26) The hardships imposed by Perich's absence were modest in the summer, but they quickly became severe once classes started in the fall. Eventually, at the beginning of the spring semester, the Church decided that it could not do this anymore. It hired a replacement for the spring semester. (27)

      In February, Perich said that her illness was now controlled by medication, and her doctor said that she was able to return to work. (28) The Church said that there was no job open for the spring semester, but Perich came to the school on the morning of February 22 anyway. (29) The parties dispute exactly what happened, but there was some kind of confrontation, and Perich refused to leave until the school gave her a letter that said she had reported for work. (30)

      When the principal called her that afternoon, Perich announced that if she did not get her job back, she would sue the Church. (31) The principal asked her if she really meant that, because the Missouri Synod has quite specific teachings that forbid called employees from suing the Church over called positions and require that disputes over such positions be resolved within the Synod. (32) Perich persisted; she repeated the threat to sue. (33) That night, the school board decided to begin the process of recommending to the congregation that it rescind Perich's call. (34)

      The Synod has an elaborately developed internal dispute-resolution process, with hearing officers independent of the local church that employs the minister. (35) The Synod provides that this process "shall be the exclusive and final remedy" for internal religious disputes, and that "[f]itness for ministry and other theological matters must be determined within the church." (36) A fundamental purpose of these provisions, which are scripturally based, (37) is that religious disputes should be resolved by persons who understand the religion, are committed to it, and will proceed in accordance with religious understandings--understandings that were generally shared by all parties before the dispute arose. Perich could have used that process to complain that she was being unfairly or improperly excluded from her ministry because of her disability. But she did not use that process; she threatened to sue instead.

      It is important to note the precise sequence of events here. Perich lost her job, at least for the spring semester, because she had been unable to work for seven months and the school finally replaced her. Neither plaintiff alleged that this decision, or any other action of the Church, was disability discrimination. (38) Thereafter, the congregation rescinded her call because she had threatened to sue the Church. Both plaintiffs alleged that this decision to rescind her call was an unlawful act of retaliation. (39)

      Perich lost her job long before her call was rescinded, but she had been replaced only temporarily, and she remained in good standing theologically. The rescission of her call meant as a practical matter that she would not be rehired by Hosanna-Tabor, and in that sense it was an employment action. But rescinding her call was fundamentally a religious action. A call is a religious status with a theological history going back to the very beginnings of Lutheranism; (40) extending or rescinding a call is a decision about a religious status within the church. And it is only this religious decision that the plaintiffs alleged as retaliation.

2. FRAMING THE CASE IN THE SUPREME COURT

   In the Petition for Certiorari, the question presented was "[w]hether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily...