The Ministerial Exception: Seeking Clarity and Precision Amid Inconsistent Application of the Hosanna-tabor Framework

• Citation: Vol. 70 No. 2
• Publication year: 2020

The Ministerial Exception: Seeking Clarity and Precision Amid Inconsistent Application of the Hosanna-Tabor Framework

Rachel Barrick

THE MINISTERIAL EXCEPTION: SEEKING CLARITY AND PRECISION AMID INCONSISTENT APPLICATION OF THE HOSANNA-TABOR FRAMEWORK

Abstract

Supported by statute and the Constitution, the ministerial exception bars employees who are deemed "ministers" from bringing discrimination claims against their religious employer. Religious employers—whether a religious association, corporation, educational institution, or society—are exempted from Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of religion. The ministerial exception is no longer limited to religious discrimination and has been expanded to apply in cases of gender, race, age, and disability discrimination.

In 2012, the Supreme Court affirmed that a constitutional ministerial exception existed and was supported by the Free Exercise and Establishment Clauses of the First Amendment. The Court set forth a four-factor test by which an employee's "ministerial status" was to be assessed: (1) whether the religious institution held the employee out as a minister; (2) whether the employee's title reflected a certain degree of religious training; (3) whether the employee used that title and held herself out to be a minister; and (4) whether the employee's duties reflected a role in conveying and carrying out the mission of the church. The Court declined to adopt a rigid formula, leaving lower courts to interpret for themselves how these factors should be applied. Thus, lower courts were not only inconsistent in their analyses of subsequent cases, but also demonstrated a tendency toward favoring the religious employer. In 2020, the Supreme Court again addressed the ministerial exception, emphasizing function as key and broadening the exception's potential application.

This Comment proposes a solution for the inconsistencies and ambiguities that have resulted from the Court's four-factor test for classifying "ministers" who then fall within the "ministerial exception," and thereby suggests that the Court's most recent holding failed to properly contain the exception. First, the proposed solution requires a balance of function and title based upon a reasonable construction of the surrounding factual circumstances. Function should be given the greatest weight if satisfied, but factors relating to title should not be ignored. Second, the proposed solution requires an analysis into the religious importance of the employee and the circumstances proffered to support or refute that importance. The analysis must be conducted with an eye toward the purpose of the exception: avoiding government interference with

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employment decisions relating to those employees whose functions are essential to the employer's religious mission.

Introduction.............................................................................................467

I. Background to the Ministerial Exception..............................471

A. History of the Ministerial Exception ........................................ 471

1. Statutory Basis.................................................................... 472
2. Constitutional Bases in Pre-Hosanna-Tabor Case Law ..... 473

B. Hosanna-Tabor and Its Reception ............................................ 477

1. Analytical Framework........................................................ 481
2. Critics and Champions ....................................................... 483

C. Circuit Splits—How Courts Have Adapted the Vague Hosanna-Tabor Analysis .......................................................................... 487

1. Overview of Varied Analyses.............................................. 487
2. The Second Circuit ............................................................. 488
3. The Sixth Circuit................................................................. 490
4. The Seventh and Ninth Circuits: A Comparison ................ 491

D. Morrissey-Berru: A Broad Reframing of Hosanna-Tabor ........ 498

II. Approaches Proposed in the Post-Hosanna-Tabor Era...........502

A. Function Versus Title ............................................................... 502
B. Bifurcation of Secular and Religious Duties ............................ 505

III. Creating a More Consistent Landscape and Avoiding Abuse: Clarifying and Narrowing the Hosanna-Tabor Framework.....................................................................................507

A. Balancing Function and Title ................................................... 511
B. Analyzing Religious Importance in the Context of Significant Facts ......................................................................................... 515

Conclusion.................................................................................................518

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Introduction

Most employers in the United States are prohibited from engaging in discrimination based on religion, race, sex, disability, or national origin—such is the norm and thus the expectation of most employees. Most employers, however, are not religious employers. Religious employers, contrary to what may seem a key tenet of modern American jurisprudence, are not always subject to antidiscrimination laws. This apparent anomaly stems from Title VII of the Civil Rights Act of 1964, which states that the prohibition on employers with more than fifteen employees from discriminating on the basis of religion does not apply to "any religious corporation, association, educational institution, or society" that hires individuals of the associated religion to perform work connected with the activities of that religion.¹ In 1987, the Supreme Court upheld this exemption for religious organizations in Presiding Bishop v. Amos, holding that the exemption served the permissible goal of preventing significant or excessive governmental interference in matters of church governance.²

Over time, courts expanded their understanding of the statutory exemption to extend to forms of discrimination other than religious.³ In 2012, the Supreme Court elevated this statutory accommodation into a constitutional mandate under the First Amendment, affirming the existence of a constitutional ministerial exception.⁴ In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Court held that a Lutheran school teacher, Cheryl Perich, was a minister and thus barred from bringing a discrimination claim against her employer.⁵ Perich was a "called" teacher with significant religious training and background, who taught both secular and religious subjects, led her students in prayer, and led a school-wide chapel service about twice a year.⁶ Perich brought suit, alleging she was terminated in retaliation for threatening to file a claim under the Americans with Disabilities Act (ADA)—a suit her employer argued was barred by the ministerial exception.⁷ The Court adopted a four-factor test to determine whether the employee was a minister: (1) whether the religious institution held the employee out as a minister; (2) whether the employee's title reflected a certain degree of religious training; (3) whether the employee used

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that title and held herself out to be a minister; and (4) whether the employee's duties reflected a role in conveying and carrying out the mission of the church.⁸ The Court held that the circumstances surrounding each of these factors indicated that the employee was a minister, though it declined to adopt a rigid formula that would define the correct balance of factors and a threshold of what is or is not enough to signify a minister.⁹

Until 2012, various circuits had applied different methods for determining whether an employee was a minister for purposes of the exception.¹⁰ The most widely applied approach was the "primary duties test," which looked to whether the employee's duties consisted primarily of administering religion and serving the religious mission of the church.¹¹ Another version of that test balanced religious duties with non-religious duties.¹² Meanwhile, some circuits adopted a three-part test that considered (1) the criteria upon which the employment decision was made, (2) the employee's religious qualifications, and (3) whether the employee engaged in traditionally ecclesiastical activities.¹³ The Second Circuit modified this test by adding a sliding scale where the more pervasively religious a religious institution was, the less religious an employee's role had to be to qualify as ministerial.¹⁴ Though Hosanna-Tabor is precedent, its flexibility left lower courts with much discretion in deciding how they would interpret the test and to what extent they would adopt and apply the Court's four-factor analysis—leading to inconsistency in application and results.¹⁵ While the employee's function, the fourth factor, has been generally accepted as the most

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important consideration,¹⁶ courts have diverged on how much weight should be given to the first three factors, with some courts choosing to ignore them altogether.¹⁷ Circuits have also varied on how many of the four factors should be present and how strongly each factor must weigh in favor of applying the exception.¹⁸

The ministerial exception is alive and well today, and its ambiguities once again carried it to the Supreme Court in the 2020 case Our Lady of Guadalupe School v. Morrissey-Berru, which originated in the Ninth Circuit.¹⁹ The circuit court in Morrissey-Berru held that the four Hosanna-Tabor factors favored the conclusion that the employee was not a minister.²⁰ However, where most courts would have likely held that the extensive nature of the employee's religious functions sufficed to prove ministerial status, the Ninth Circuit focused primarily on the lack of any titular proof of ministerial status rather than the existence of highly significant religious functions.²...