Should the ministerial exception apply to functions, not persons?

• Author: Glickstein, Jed

NOTE CONTENTS INTRODUCTION I. THE MINISTERIAL EXCEPTION AFTER HOSANNA-TABOR II. AN ALTERNATIVE APPROACH TO MINISTERIAL STATUS III. SQUARING THE BLENDED APPROACH WITH THE FIRST AMENDMENT CONCLUSION INTRODUCTION

Last year, in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court held that the First Amendment bars ministers from suing their religious employers under the employment discrimination laws. (1) Applying these laws to the ministerial employment relationship, the Court reasoned, would impermissibly infringe upon churches' freedom to select their representatives and control their internal affairs. The Court thus adopted the conclusion, widespread in the courts of appeals, that the First Amendment requires a "ministerial exception." In Chief Justice Roberts's words:

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way. (2) The Chief Justice's conclusion remains controversial, (3) but this Note does not challenge its basic thrust--that the government cannot interfere in a church's selection of those who will carry out its religious mission. Rather, it considers whether Hosanna-Tabor, and the ministerial exception cases more generally, can fit into a refined analytical framework that better strikes the balance that the Supreme Court (rightly or wrongly) thinks the First Amendment requires.

The gist of my proposal is this: Hosanna-Tabor seems to treat the threshold question whether an employee is a minister--an inquiry that I call the ministerial determination--as an all-or-nothing proposition. A given plaintiff either is a minister, in which case the Constitution wholly bars her lawsuit, or she is not, in which case her suit proceeds like any other. That way of framing the inquiry might be plausible for the ministerial exception's core cases: ministers, rabbis, imams, and other "pastors of congregations who are the most obvious referent for 'minister.'" (4) The ministerial exception has come to apply to a much wider set of employees than paradigmatic ministers, however, (5) and here an all-or-nothing framework is less compelling. After all, courts generally agree that, in these latter cases, the ministerial determination turns not on the formalistic fact that a given employee is a minister, but on the functional fact that she acts ministerially. Yet how one acts, as opposed to what one is, is not necessarily all-or-nothing. Indeed, because the same employee may act ministerially in one context and nonministerially in another, it might be more appropriate to conceptualize the ministerial exception as a partial bar instead of a total one.

Put another way, in at least some cases, it might make sense to think of the ministerial exception as protecting a church's relationship with, and control over, particular functions, not particular persons. On this view, the exception would continue to foreclose those aspects of an employment discrimination suit that implicate an employee's religious job functions. But it would permit the same employees to proceed with a lawsuit that is cabined to their secular capacities.

Although Walter Dellinger, who argued Hosanna-Tabor on behalf of the respondent, has hinted in this direction, no court or commentator, to my knowledge, has proposed this sort of framework. (6) That is unfortunate. A ministerial exception that focuses on religious functions, not religious persons, could enable courts to further society's "undoubtedly important" interest in enforcing antidiscrimination laws while still fully vindicating the religious rights protected by the First Amendment. (7) This Note offers a justification for that approach.

1. THE MINISTERIAL EXCEPTION AFTER HOSANNA-TABOR

   The ministerial exception emerged in 1972, when the Fifth Circuit held that a Salvation Army minister could not sue her employer under Title VII of the Civil Rights Act. (8) Ministers, the Fifth Circuit explained, are a church's "lifeblood," "the chief instrument by which the church seeks to fulfill its purpose." (9) Applying antidiscrimination laws to the ministerial relationship thus threatened the church's control over "matters of a singular ecclesiastical concern," and also risked entangling the courts in religious disputes, "produc[ing] ... the very opposite of that separation of church and [s]tate contemplated by the First Amendment." (10) Faced with these two worries, the court invoked the doctrine of constitutional avoidance to conclude that Congress did not intend to bring ministers within the scope of Title VII. (11)

   This conclusion gained widespread approval. In the following years, every circuit court that faced the question similarly refused to extend the antidiscrimination laws to cover the employment relationship between a church and its ministers. (12) As the doctrine developed, however, its "ministerial" adjective proved to be something of a misnomer. The First Amendment, courts held, protected churches' freedom to hire and fire a much broader range of employees than just paradigmatic ministers. (13)

   These decisions made it necessary to find principles to determine whether a given religious employee would be covered by the exception or not. Approaches varied by circuit, but most converged on a so-called primary duties test, which asked whether an employee's "primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship." (14) In the words of one court, "Our inquiry ... focuses on the 'function of the position' at issue and not on categorical notions of who is or is not a 'minister.'" (15) Other circuits looked to factors like formal religious training or religious job qualifications in addition to job function. (16) Still others made the ministerial determination on a loosely structured, case-by-case basis. (17) Whatever their precise test, however, courts began to apply the ministerial exception to a variety of employees who were not formally ordained and whose duties might not strike the casual observer as particularly ministerial: a university professor of canon law, (18) a church music director, (19) a press secretary, (20) and so forth.

   After percolating for forty years, the ministerial exception finally reached the Supreme Court in Hosanna-Tabor. (21) The case involved a teacher, Cheryl Perich, who worked at a Lutheran elementary school. Perich claimed that the school discriminated against her after she was diagnosed with narcolepsy. (22) When she threatened to sue, she was fired, and the Equal Employment Opportunity Commission brought a retaliation claim on her behalf. The church claimed that it terminated Perich because she violated its religious tenet that adherents should resolve all disputes within the church, but it also sought to apply the ministerial exception to bar Perich from invoking the employment discrimination laws (here, the Americans with Disabilities Act) in the first place. (23)

   Perich's suit posed a genuinely tricky case in terms of the ministerial determination. On the one hand, from a functional perspective, her job looked predominantly secular. Parochial teachers at the Hosanna-Tabor school spent most of the day teaching secular subjects like English and music. She also taught a religion class for about forty minutes a day, led her class in short prayers three times a day, and organized chapel services a few times a year. (24) Outside of these activities, Perich stated that, although she was free to "bring God ... into the classroom" when teaching secular subjects, she hardly ever did so.

   On the other hand, Perich's formal status had definite religious overtones. Hosanna-Tabor employed two classes of teachers: called teachers, who had to complete a course of religious study and receive the endorsement of the local Lutheran synod, and contract teachers, who were hired when called teachers were not available. (25) Perich initially worked as a contract teacher before receiving her religious credentials--her diploma designated her a "Minister of Religion"--and receiving her call. As a called teacher she enjoyed open-ended tenure and received beneficial tax treatment. However, the legal import of these factors was disputed, because the contract teachers--who did not need religious training, or even to be Lutheran--performed exactly the same duties at the school as the called teachers. (26)

   The court of appeals had applied a primary duties analysis below. Instead of treating Perich's title as determinative, it noted that almost ninety percent of a called teacher's day was devoted to teaching secular subjects, and it underscored that the contract teachers and called teachers were functionally identical. Hence, the court concluded, Perich's primary duties were not religious, and so she was not a minister for the purposes of the ministerial exception. (27)

   The Supreme Court unanimously reversed. (28) Although the Court was sure that Perich was a minister, however, the rationale behind its determination was remarkably vague. Instead of a categorical rule, the Court offered up only a hodgepodge of factors--Perich's title ("Minister of Religion"), the substance that title reflected, her use of the title, and her religious duties--without explaining how these dements should be weighed or whether they were exhaustive. (29) "We are reluctant," Chief Justice Roberts admitted, "to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial...