Resurrecting free exercise in Hosanna-Tabor Lutheran Church & School v. EEOC.

• Author: Williams, Elliott

Since the rise of federal nondiscrimination laws, every federal court of appeals has recognized a "ministerial exception" that protects some religious organizations from certain kinds of suits by employees. (1) Beyond that baseline, appellate opinions have diverged as to whether the exception protects only churches or whether it extends to other kinds of religious organizations, (2) whether it applies to most employees of religious organizations or only a few, (3) and whether the exception bars all employment-related suits or only discrimination suits. (4) Last term, in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court unanimously held that the First Amendment provides a ministerial exception that protects religious schools from retaliatory firing suits under the Americans with Disabilities Act. (5) By holding that the employment decisions of the religious school were shielded by both Religion Clauses of the First Amendment, (6) this decision limited the Court's earlier holding in Employment Division v. Smith, (7) and expanded the scope of religious liberty under the Free Exercise Clause.

Respondent Cheryl Perich was a "called" (as opposed to "lay") teacher at Hosanna-Tabor, a Lutheran Church-Missouri Synod church and school. (8) After five years of teaching at the school, she became ill with narcolepsy and began the 2004-2005 school year on disability leave. (9) In January 2005 Perich informed the school principal that she would be able to return to work the next month. (10) The principal replied that Perich's position was filled for the remainder of the school year. (11) Three days later, the Hosanna-Tabor congregation extended a "peaceful release" to Perich in return for her resignation. (12) Perich, however, refused to resign. (13) As soon as her doctor authorized Perich to return to work, she appeared at the school and demanded documentation of her willingness to work. (14) When the principal called Perich at home that afternoon and said that she might be fired, Perich answered that she was planning to sue. (15) The Hosanna-Tabor congregation rescinded Perich's call on April 10, 2005. (16) Perich then filed a complaint with the Equal Employment Opportunity Commission (EEOC). (17) The EEOC sued Hosanna-Tabor for firing Perich because she had threatened to bring suit, and Perich intervened as a plaintiff. (18) She sought reinstatement, backpay, compensatory and punitive damages, attorney's fees, and injunctive relief. (19)

The district court granted summary judgment to Hosanna-Tabor: "Because Perich was a ministerial employee of Hosanna-Tabor, this Court can inquire no further into her claims of retaliation." (20) The Sixth Circuit vacated and remanded on the grounds that Perich's primary duties were secular. (21) After noting that "Perich spent approximately six hours and fifteen minutes of her seven hour day teaching secular subjects," (22) the court reasoned that under the "governing primary duties analysis[, which] requires a court to objectively examine an employee's actual job function, not her title, in determining whether she is properly classified as a minister[,].... it is clear ... that Perich's primary duties were secular." (23)

The Supreme Court granted certiorari and reversed. (24) Writing for a unanimous Court, Chief Justice Roberts held that the Religion Clauses of the First Amendment create a "ministerial exception" and that Hosanna-Tabor's decision to fire Perich fell within that exception. (25)

The Court's opinion contextualizes the First Amendment in the history of struggles between church and state authorities concerning the election of church officers. Although Magna Carta guaranteed that "the English church shall be free, and shall have its rights undiminished and its liberties unimpaired," (26) as the Court observes, "[t]hat freedom in many cases may have been more theoretical than real." (27) For instance, in 1534, Parliament titled the English monarch Supreme Head of the Church of England and gave it the authority to appoint bishops. (28) The Puritans and Quakers came to New England "[s]eeking to escape the control of the national church." (29) Other colonies retained ties to the Church of England but "sometimes chafed at the control exercised by the Crown and its representatives." (30) In accord with this sentiment, the First Amendment stipulated that the United States government would play no part in ecclesiastical appointments: "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." (31)

Partially because the Religion Clauses of the First Amendment were so well understood, cases concerning government interference in the selection of church officers did not soon arise. (32) However, the Court did apply the Religion Clauses to questions about government interference with a church's ability to settle its own property disputes. (33) In 1872, the Court refused to settle a dispute over control of a church building that the "General Assembly," the national governing body of that denomination, had already decided: "[W]henever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them." (34) The Court reached similar results in Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America (35) and in Serbian Eastern Orthodox Diocese v. Milivojevich. (36) The Kedroff Court struck down a New York statute "requiring every Russian Orthodox church in New York to recognize the determination of the governing body of the North American churches as authoritative." (37) The Kedroff Court, Chief Justice Roberts asserted, "declared the law unconstitutional because it 'directly prohibit[ed] the free exercise of an ecclesiastical right, the...