Neither 'ministerial' nor an 'exception': the ministerial exception in light of Hosanna-Tabor.

• Author: Robinson, John

INTRODUCTION

In January 2012, the Supreme Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. (1) In that case, a unanimous Court affirmed the existence of the so-called "ministerial exception" within the First Amendment's religion clauses--a doctrine that had previously been recognized and applied by all courts of appeals to bar wrongful termination suits brought by "ministerial" employees of religious institutions against their religious employers under the various employment-discrimination laws. (2) In short, the Court held that although state and federal employment-discrimination bans generally protect all employees--from Walmart to Wall Street--an "exception" is made for the "ministers" employed by churches, parochial schools, and other religious institutions. Those employees serve at the pleasure of their religious employer, and governments may neither prescribe nor second-guess their hiring or firing.

In spite of--and perhaps even as a result of--the Court's unanimity, Hosanna-Tabor has proven controversial. No one likes to see justice denied, and many scholars believe the ministerial exception does just that. Criticism was swift and varied. Some reflected incredulity; a reluctance to accept the Court's apparent conclusion that the First Amendment says churches get to break the law with impunity. (3) Other objections were measured and specific; taking exception to a seemingly unjustified departure from settled law (4) and mangling of First Amendment doctrine. (5) But, Hosanna-Tabor calls for neither alarm nor a frantic rewriting of constitutional law textbooks. Instead, the ministerial exception is simply one dimension among many of a structural principle long recognized as a central component of our separation of church and state--in full compliance with prior law and entirely explicable under our familiar lines of cases.

This Note argues that the best way to conceptualize the ministerial exception in light of Hosanna-Tabor is as a doctrine that is neither "ministerial" nor an "exception." As the Court held, the ministerial exception's reach extends beyond priests and other traditional "ministers" to cover part-time religion teachers. But more importantly, its application does not provide an "exception" from anything. Hosanna-Tabor did not involve a balancing of interests and a magnanimous accommodation of religion in the form of an exception to a law that, without legislative or judicial grace, would have applied with constitutional authority. Additionally, the case does not represent a conveniently discovered exception to Employment Division v. Smith, (6) the lodestar in Free Exercise jurisprudence regarding neutral rules of general applicability. Instead, Hosanna-Tabor involved the recognition of a jurisdictional boundary, in full compliance with Smith. (7)

After close inspection of the case, this Note concludes that the ministerial exception embodies two distinct structural principles that apply differently depending on the nature of the ministerial dispute before the court. In some cases--where the dispute involves questions entangled with the meaning and weight of religious doctrine--the ministerial exception is a structural bar, denying courts the ability to lend their hands to help answer those questions. (8) In other cases--where the dispute involves no risk of entanglement and the questions presented are entirely secular--the doctrine allows for a phenomenon that this Note terms "cooperative separationalism," meaning essentially a waiver of structural protection by a religious institution, thereby lending its jurisdiction to the state for the purpose of submitting to the application of, and adjudication under, state law. Both principles can be vindicated and enforced given the case-by-case nature of the ministerial exception's application, and both were always intended to survive in the wake of the Employment Division v. Smith sea change.

1. WHAT THE MINISTERIAL EXCEPTION IS

   Hosanna-Tabor grew out of the decision to fire Cheryl Perich, an elementary school teacher and commissioned minister at Hosanna-Tabor Evangelical Lutheran School. (9) After five years of employment as a part-time religion teacher for kindergarteners and fourth graders, Ms. Perich was diagnosed with narcolepsy and began her sixth year of employment on disability leave. (10) When she approached the school several months later seeking to resume her duties, the school's principal refused to reinstate Ms. Perich, citing lingering concerns over her health and the school's obligation to her replacement. Ms. Perich threatened to sue the school if she was not reinstated, and the congregation responded by voting to end her employment. (11) Ms. Perich made good on her threat and brought suit, claiming that her firing was unlawful retaliation under the Americans with Disabilities Act, giving her a right to damages. (12) The school responded that her termination was the result of her breach of Lutheran doctrine--namely, a commitment among church members to resolve intracongregational disputes internally--and, in any event, Ms. Perich qualified as a "minister" under the ministerial exception, barring her claim regardless of reason. (13)

   Writing for a unanimous Court, Chief Justice Roberts primed his analysis of the matter with an observation: Unlike so many other cases involving our separation of church and state, ministerial-exception cases do not involve a clash between the religion clauses requiring the scales of justice and judicial balancing. (14) In fact, in the area of ministerial selection, "[t]he First Amendment has struck the balance for us." (15) The Free Exercise Clause grants religious institutions the right to decide whether or not to employ certain ministers, and the Establishment Clause denies government the power to second-guess those decisions. (16) In this way, the religion clauses compliment and reinforce each other, reminding us that whatever our feelings might be about the value of church autonomy in ministerial selection, our Constitution is clear and emphatic: "The church must be free to choose those who will guide it on its way." (17)

   1. Where It Fits Within Doctrine

      The Court's view of the ministerial exception as a co-venture between the Religion Clauses has proven both confusing and concerning to many scholars. Professor Frederick Gedicks argues that the ministerial exception described in Hosanna-Tabor is "a strange mixture of rights and structure" (18) forging a "constitutional right on steroids" that creates doctrinal incoherence under both the Free Exercise and Establishment lines of cases. (19) Although Professor Gedicks is right that the ministerial exception raises questions going forward--a point even supporters of the doctrine are willing to admit (20)--the doctrine is not nearly as foreign or frightening as the picture he paints. In fact, its dual composition is easy to disentangle, is justified by the nature of the structural principle being advanced, and reflects a milder principle than those announced in other cases enforcing constitutional structure.

      1. Free Exercise Versus Establishment

         Under the Free Exercise Clause, the ministerial exception protects a church's "right to shape its own faith and mission through its appointments." (21) As explained in the next section of this Note, this right was infringed by application of the ADA in Hosanna-Tabor notwithstanding Smith. But, one might think--because, in this respect, the ministerial exception protects a "right"--that it can be waived by its holder or trumped by a compelling state interest, in direct contradiction to its structural character. (22) The ministerial exception can be waived in certain situations, but can never be trumped. The reason to distinguish these two qualifiers that normally attach to rights in tandem is the effect consent potentially has on the offensiveness of court involvement on the establishment side of the ledger. (23)

         Under the Establishment Clause, the ministerial exception prevents the "[government from appointing ministers" (24)--a principle that is "no less" infringed when courts award damages instead of reinstatement because the constitutional violation is the state making "a determination" that a church was wrong to have removed its minister. (25) To properly understand the offensiveness of such a determination, it is important to recognize a peculiarity about the ministerial exception as a structural doctrine. In New York v. United States, (26) the Court held that federalism structure prohibits the federal government from commandeering state legislatures to take part in a federal regulatory program. (27) In so holding, the Court rejected the idea of "cooperative federalism," meaning an ability of the States to collectively agree to "waive" their federal protection in order to allow Congress to solve intractable problems among the States. (28) Accommodation of state interests was impossible in that case because the structure being enforced protects our system of "dual sovereignty." Here, again and in contrast, the ministerial exception protects, in part, the church's "right to shape its own faith and mission through its appointments." (29) Because sovereignty protects all citizens, and not merely the sovereign, it cannot be waived. (30) But a right can be waived by the right's holder. Thus, so long as the Establishment Clause is not uniquely offended, the ministerial exception--in contrast to federalism--can be waived in "cooperation" with the courts.

      2. Jurisdictional Bar Versus Affirmative Defense

         The ability of religious institutions to waive their structural protection was at least ostensibly given a procedural vehicle in footnote 4 of Hosanna-Tabor, where the Court summarily concluded that "the [ministerial] exception operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar." (31) Professor Michael Helfand seizes on this language in a...