AuthorMuehlhoff, Jason J.


The American polity has long been wary of federal involvement in the selection of religious personnel. This was not merely the result of abstract reasoning, but rather the felt experience from "Europe's long and bloody history of 'conflict[s] over the government's intervention in [religious] decisionmaking.'" (1) Declining to follow Europe down this same path, an early Congress rejected France's request to approve a Catholic Bishop for America, (2) calling it a "purely spiritual" decision beyond "the jurisdiction and powers of Congress." (3) This type of political entanglement with ecclesiastical decisions directly influenced the structure and substance of the First Amendment's dual Religion Clauses. (4) The First Amendment charted a different relationship between government and religion: "the new Federal Government--unlike the English Crown--would have no role in filling ecclesiastical offices." (5)

The "ministerial exception" is one such manifestation of the First Amendment's protection for religious groups from government intrusion. The ministerial exception exempts religious entities from certain laws regulating their employment relationship with employees (6) who perform important religious functions. "This does not mean that religious institutions enjoy a general immunity from secular laws, but it does protect their autonomy with respect to internal management decisions that are essential to the institution's central mission." (7)

The Supreme Court has now addressed the ministerial exception in two cases, and both times it has properly prevented the government from interfering with a religious group's decision over who can serve as teachers at parochial schools. Religious schools are important, but the ministerial exception extends well beyond the confines of a classroom. To date, the Supreme Court has offered no overarching "formula for deciding when an employee qualifies as a minister," and so far has only addressed "circumstances" relevant to teachers. (8) This leaves open questions about employees in a whole host of other contexts, all of which present unique and fact-specific circumstances to consider.

The principles articulated in Our Lady of Guadalupe v. Morrissey-Berru (9) lay the foundation for the best path forward. As the majority and concurring opinions demonstrate, faithfully and consistently applying the ministerial exception to a myriad of contexts can best be done by: (1) focusing on the employee's functions over other considerations like title and training; and (2) deferring to the religious entities on what religious functions are critical to the group's mission. An approach centered on these dual pillars honors the First Amendment's steadfast commitment to avoiding governmental entanglement in the internal matters of religious organizations and is applicable to all faiths, circumstances, and seasons.


    1. Prior Caselaw

      Despite the ministerial exception's relatively short history as a matter before the Supreme Court, it is a well-established doctrine among the lower courts. Beginning with the Fifth Circuit in 1972, (10) every circuit eventually came to recognize the ministerial exception, (11) as well as every state supreme court that addressed the ministerial exception's existence. (12) This means Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the first ministerial exception case before the Supreme Court, was a moment of recognition, not creation. (13) This case centered around a religious school and Cheryl Perich, a "called teacher," (14) who taught fourth graders all the typical curriculum found in any fourth grade classroom. But she also taught a religion class, led students in prayer, and occasionally spoke at chapel services. (15) After an employment dispute arose over Perich's ability to teach following a diagnosis of narcolepsy, Perich eventually claimed employment discrimination and sued. (16)

      The Supreme Court unanimously sided with the school. In doing so, the Court relied on both the Establishment and Free Exercise Clauses to justify its holding. "The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own." (17)

      The Supreme Court recognized the ministerial exception's solid constitutional foundation, but declined to provide a clear formula for evaluating future cases. (18) Instead, the Court looked at four considerations to determine that Perich was a minister: (1) her title; (2) the substance of her title; (3) "her own use of that title[;]" and (4) "the important religious functions she performed...." (19) These considerations were sufficient to resolve Hosanna-Tabor, but offer little guidance outside of this narrow fact-pattern. This lack of guidance did not go unnoticed. In a concurrence, Justice Thomas argued that to apply this protection consistently given religious organizations' wide variety of structures, courts should defer to the organization's views of who qualifies as a minister. (20) Justice Alito also wrote a concurrence, joined by Justice Kagan, which highlighted that given the disparity among religions regarding the use and understanding of titles, including "minister," "courts should focus on the function performed by persons who work for religious bodies." (21) These ideas, presented by the concurring justices in Hosanna-Tabor, took center stage in Our Lady of Guadalupe.

    2. Our Lady of Guadalupe

      Hosanna-Tabor clearly affirmed the ministerial exception, but left unresolved many questions about its exact scope and contours. Eight years later, the Court offered another data point. Our Lady of Guadalupe centered on two schoolteachers--Agnes Morrissey-Berru and Kristen Biel--who both taught at Catholic elementary schools. (22) The two teachers had similar employment agreements and job responsibilities. The employee agreement explained that the school's "overriding commitment" was "to develop and promote a Catholic School Faith Community." (23) A teacher's role in the faith community was to "'model and promote' Catholic 'faith and morals'" and ensure "faith formation of the students in their charge each day." (24) This included teaching religion, regularly praying with the students, and helping students learn about and participate in Mass and other religious activities. (25)

      While those job duties may sound similar to Perich's role, these facts are no carbon-copy of Hosanna-Tabor. Perich held a title of "Minister of Religion, Commissioned," the two individuals here were "Teacher[s]" and "Lay Employees[;]" (26) Perich completed eight theology classes as part of her commissioning, the two here had far less formal theology training; (27) and while Perich held herself out to be a minister, the other two did not. (28) This distinguished Perich from the two teachers here on three of the considerations the Court used in Hosanna-Tabor: title, the substance reflected by the title, and the employee's use of that title.

      However, these differences were not dispositive, and the Court ultimately found the teachers here also fell within the ministerial exception. Writing for a seven-Justice majority, Justice Alito explained that Hosanna-Tabot's criteria were "not inflexible requirements," (29) because "[w]hat matters, at bottom, is what an employee does." (30) The Court in Hosanna-Tabor admittedly centered much of its analysis on Perich's...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT