"OF SUBSTANTIAL RELIGIOUS IMPORTANCE": A CASE FOR A DEFERENTIAL APPROACH TO THE MINISTERIAL EXCEPTION.

• Author: Pope, Allison H.

Closed on Sunday, you my Chick-Fil-A... Follow Jesus, listen and obey No more livin' for the culture, we nobody's slave Stand up for my home... I pray to God that He'll strengthen my hand They will think twice steppin' onto my land I draw the line, it's written in the sand (1) INTRODUCTION

As artist Kanye West proclaims, protection from outside influences is essential for religious groups to maintain their identity and carry out their mission. The Framers of the Constitution, by enshrining the right to the "free exercise" of religion and prohibiting the "establishment" of religion in the First Amendment, (2) sought to ensure the new federal government would not unduly interfere with the religious lives of Americans.

In2012, the United States Supreme Court fortified this concept of religious autonomy in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC by adopting the "ministerial exception" doctrine, which had previously been recognizedby every United States court of appeals. (3) According to this doctrine, the Religion Clauses of the First Amendment preclude application of employmentdiscrimination laws "to claims concerning the employment relationship between" a "religious group" and its "ministers." (4) Because the Court did not adopt a clear definition of the term "minister" in this landmark case, questions remain as to which employees qualify. (5)

InDecember 2019, the Supreme Court granted certiorari and consolidated Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, two cases from the Ninth Circuit, which had ruled two Catholic school teacherswith religious duties were not ministers for purposes of the ministerial exception. (6) In its decision, the Court will revisit Hosanna-Tabor, which alsoinvolved a teacher in a religious school, (7) and should provide more guidance to lower courts in their application of the term "minister."

This Note argues that, in order to remain consistent with the Religion Clauses'protection of religious autonomy, civil courts must defer to the religious group'sdetermination of which of its employees play a role "of substantial religious importance" (8) within the organization in carrying out its religious mission under its tenets, and are therefore "ministers," rather than investigateand make that determination themselves. Part I provides background information on the First Amendment and an overview of the circuit court and Supreme Court decisions that laid the foundation for, built, adopted, and applied the ministerial exception as described in Hosanna-Tabor. Part II analyzes several potential definitions of "minister" and argues that a civil court when applying the term must defer to the religious group's determination of which of its employees play a role "of substantial religious importance." Such a deferential standard is necessary in order to preserve the religious autonomy contemplated by the Religion Clauses.

1. BACKGROUND

   1. Foundational Principles

      The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." (9) Incorporated against the states via the Fourteenth Amendment, (10) these ReligionClauses guarantee religious freedom and protect against government entanglement with religion. The courts, when building and adopting the ministerial exception doctrine, relied on a series of Supreme Court cases regardingchurch property disputes. These cases established that the Religion Clauses protect churches' autonomy from governmental interference.

      The first such case, Watson v. Jones, involved a property dispute between proslavery and antislavery factions of a local Presbyterian church. (11) The Courtheld it must defer to the decision of the General Assembly of the Presbyterian Church, as "the highest judicatory of the Presbyterian Church," to recognize the antislavery faction as the true owner of the property. (12) This case established the principle that courts must defer to hierarchical churches on "questions of discipline, or of faith, or ecclesiastical rule, custom, or law." (13)

      In 1929, the Court reiterated a similar principle in Gonzalez v. Roman Catholic Archbishop of Manila, a case involving the Catholic Church's denial of a chaplaincy position to a ten-year-old boy. (14) Rejecting the boy's claim that he was entitled to the chaplaincy by virtue of the will of the chaplaincy's foundress,the Court explained, "In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive...." (15)

      In 1952, the Court heard another church property dispute, Kedroff v. Saint Nicholas Cathedral of the Russian Orthodox Church in North America. (16) The Court of Appeals of New York had declared that the right to use a Russian Orthodox cathedral belonged to the North American churches, rather than the Supreme Church Authority in Moscow, under a New York law requiring every Russian Orthodox church in New York to recognize the authority of the governing body of North American churches. (17) The United States Supreme Court reversed, holding that the New York law violated the First Amendment because it passed from one church authority to another the right to use the cathedral and the power to appoint a ruling hierarch, which were "strictly ecclesiastical" matters. (18) The Court described Watson v. Jones as "radiat[ing]... a spirit of freedom for religious organizations," which have "power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine." (19) It declared, "Freedom to select the clergy, where no improper methods of choice are proven,...[has] federal constitutional protection as a part of the free exercise of religion...." (20)

      Finally, in 1976, the Court decided Serbian Eastern Orthodox Diocese for the United States of America & Canada v. Milivojevich. (21) The Illinois Supreme Courthad held that the proceedings under which the hierarchy of the Serbian Orthodox Church had defrocked and replaced a bishop were defective under the church's own regulations and therefore arbitrary and invalid. (22) In itsreview, the United States Supreme Court rejected the proposition suggested in Gonzalez that "arbitrary" decisions by church tribunals may be reviewedby civil courts consistent with the First and Fourteenth Amendments. It reasoned that an analysis of whether a church complied with its own laws and regulations "must inherently entail inquiry into the procedures that canon or ecclesiastical law supposedly requires the church judicatory to follow, or else in to the substantive criteria by which they are supposedly to decide the ecclesiastical question. But this is exactly the inquiry that the First Amendment prohibits...." (23) Accordingly, the Court reversed, (24) holding:

      [W]here resolution of the disputes cannot be made without extensive inquiry by civil courts into religious law and polity, the First and Fourteenth Amendments mandate that civil courts shall not disturb the decisions of the highest ecclesiastical tribunal within a church of hierarchical polity, but must accept such decisions as binding on them, in their application to the religious issues of doctrine or polity before them. (25) Together,these cases established that churches have the exclusive, constitutional rightto make judgments regarding church doctrine and governance, and these judgments must not be reevaluated by civil courts.

   2. Courts of Appeals Decisions Pre-Hosanna-Tabor: Building the Ministerial Exception

      From these principles, the circuit courts began to build the ministerial exceptiondoctrine. First, in 1972 in McClure v. Salvation Army, the Fifth Circuit declined to apply Title VII of the Civil Rights Act of 1964 (26) to the employment of a female commissioned officer of the Salvation Army who had brought an action for sex discrimination. (27) The court, considering the officer a "minister" and the Salvation Army a "church," held application of the Act in this context would violate the First Amendment. (28) It reasoned, "The relationship between an organized church and its ministers is its life-blood. The minister is the chief instrument by which the church seeks to fulfillits purpose. Matters touching this relationship must necessarily be recognized as of prime ecclesiastical concern." (29)

      Other circuits followed suit. The first court to use the term "ministerial exception" was the Fourth Circuit in Rayburn v. General Conference of Seventh-Day Adventistsin 1985. (30) The court held that the sexual and racial discrimination claims of a woman denied a pastoral position in the Seventh-day AdventistChurch were barred by the First Amendment because "state scrutiny of the church's choice would infringe substantially on the church's free exerciseof religion and would constitute impermissible government entanglement withchurch authority." (31) The court rejected ordination as a necessary prerequisite for an employee to qualify as a "minister," and asserted, rather, that ministerial status depended on "the function of the position." (32) It held the "associate in pastoral care" position was ministerial because it played a "significant [role] in the expression and realization of Seventh-day Adventistbeliefs." (33) The court also acknowledged that "the church is entitled to pursue its own path" even when "the values of state and church clash," and expressed its concern that application of employment discrimination laws would cause churches to make their decisions "with an eye to avoiding litigation or bureaucratic entanglement rather than upon the basis of their own personal and doctrinal assessments of who would best serve the pastoral needs of their members." (34)

      The Eighth Circuit relied on similar principles in 1991 in Scharon v. St. Luke'sEpiscopal...