Title VII of the Civil Rights Act of 1964 (Title VII), adopted during the height of the Civil rights movement, is the most significant federal anti-discrimination statute addressing employment. In relevant part, Title VII reads that:
It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Along with protections afforded workers in other arenas, Title VII includes three overlapping exceptions for faith-based institutions, including schools, that employ fifteen or more persons exempting them from charges of religious discrimination in hiring and firing personnel. Congress included these exceptions because it was aware of the tensions that may arise when ecclesiastical employers hire or fire staff wish who then seek to file claims of religious discrimination.
The first special provision in Title VII protects religious employers where “religion, sex, or national origin is a bona fide occupational qualification [BFOQ] reasonably necessary to the operations of that particular business or enterprise.” This exemption has led to litigation to ensure that teachers comply with church teachings. For example, the Sixth Circuit affirmed the dismissal of the claims of a former preschool teacher in Tennessee who unsuccessfully filed suit alleging that she was fired due to her pregnancy. The court agreed that officials in the Christian school did not violate Title VII because the plaintiff was unable to show they applied the policy against premarital sex, which was grounded in its religious values, in a discriminatory manner.
A closely related second exemption, and focal point of this commentary, applies to “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.” This is often referred to as the ministerial exception, earlier known as the McClure exception from the case in which it was first enunciated. Rooted in the First Amendment Religion Clauses, the then Fifth Circuit explained that in applying Title VII, the Establishment Clause precludes judicial intervention in disputes between ministers and their churches, here a female officer in the Salvation Army in Georgia, because doing so “would result in an encroachment by the State into an area of religious freedom which it is forbidden to enter by the principles of the free exercise clause of the First Amendment.”
The ministerial exception applies as long as officials can, in good faith, prove the necessity of BFOQs where employees are engaged in teaching or other activities integrally related to furthering the spiritual and pastoral missions of their institutions that their duties may be treated as ministerial. To this end, courts have deferred to the authority of institutional leaders even if educators’ contract did not include the words “minister” or “spiritual” where their jobs involved integrated teaching and daily religious functions such as leading children in prayer. Courts have, for instance, applied the ministerial exception in denying claims that a principal’s contract was terminated as a result of sexual discrimination or individuals were discriminated against when they were dismissed because they had entered same-sex relationships in violation of church teachings. In these cases the courts deferred to the authority of religious leaders who classified the employees as ministerial.
The third exemption applies to institutions “in whole or in substantial part, owned, supported, controlled, or managed by a particular religious corporation, association or society, or if the curriculum of such school, college, university, or other educational institution . . . is directed toward the propagation of a particular religion.” This exemption permits policies allowing institutions to enact hiring preferences for members of their own faiths.
Returning to the ministerial exception, it is important to recognize that the Supreme Court has upheld in three separate cases. In Corporation of Presiding Bishops v. Amos (Amos) the Court upheld the constitutionality of the ministerial exception in a dispute involving a building engineer in Utah who filed a class action on behalf of himself and others who were similarly situated when he was dismissed after sixteen years of employment at a gymnasium operated by the Church of Latter Day Saints. Officials dismissed the plaintiff because he was unable to qualify for a certificate of eligibility to attend one of the Church’s Temples. The Court was of the opinion that although the plaintiff was fired despite his not having performed religious duties, Title VII did not violate the Establishment Clause because earlier language, referring to an institution’s “religious activities,” was no longer in the law. The Justices thereby extended the reach of the exemption to non-religious employment-related activities.
The Supreme Court next unanimously upheld the constitutionality of the ministerial exception, albeit as it was applied under the Americans with Disabilities Act (ADA) rather than Title VII. At issue was whether officials at a Lutheran elementary school in Michigan could dismiss a contract teacher who was a commissioned minister in the church. Reversing the Sixth Circuit’s order to the contrary, in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (Hosanna-Tabor), the Justices found that despite the teacher’s allegation that her primary duties were secular, the ministerial exception, which they reiterated, is rooted in the First Amendment, precluded her ADA claim. The Court rejected the teacher’s allegation that officials dismissed her in retaliation for threatening to take legal action when she refused to resign in a disagreement over whether she could return to work due to her health issues arguably covered by under the ADA.
Emphasizing that the First Amendment forbids the government from contradicting the judgments of church officials as to who can serve as ministers, the Hosanna-Tabor Court reasoned that the exception barred the teacher’s claim even though she spent more than six hours of her seven-hour day teaching secular subjects, using secular textbooks, and not incorporating religion into her daily activities. Moreover, the Justices observed that teachers at the school were not required to be “called,” a special class of educators, or members of the Lutheran faith, in order to conduct job-related religious activities and that the duties of contract teachers were identical to those lacking the title of minister.
In setting the parameters to consider when deciding which employees qualify under the ministerial exemption, the Supreme Court reiterated four overlapping criteria from Hosanna Tabor in the next dispute, the companion cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel (Our Lady of Guadalupe). “First, we noted that her church had given [the plaintiff] the title of “minister, with a role distinct from that of most of its members.” “Second, ‘[the plaintiff’s] position ‘reflected a significant degree of religious training followed by a formal process of commissioning.’” “Third, ‘[t]he plaintiff held herself out as a minister of the Church by accepting the formal call to religious service, according to its terms,” and by claiming certain tax benefits.” The plaintiff in Hosanna Tabor also “did so in other ways as well. For example, she claimed a special housing allowance on her taxes that was available only to employees earning their compensation ‘in the exercise of the ministry.’” Fourth, the Court noted that the teacher’s “job duties reflected a role in conveying the Church’s message and carrying out its mission.”
Most recently, in Our Lady of Guadalupe the Justices reaffirmed the ministerial exception, upholding the dismissals of the age discrimination and ADA claims of teachers in two different Roman Catholic elementary schools in California because it was satisfied that they were ministerial employees whose actions were precluded by the First Amendment even though officials in neither schools made it a requirement that teachers there be Catholic. Rejecting the teachers’ claims, and deferring to school officials as to who qualified as a minister, writing for the Court, Justice Alito declared that “[w]hat matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.”
The status of the ministerial exception is again in dispute in a case from Colorado, Tucker v. Faith Bible Chapel International, wherein officials at a faith-based school petitioned the Supreme Court to review the Tenth Circuit’s refusal to allow them to appeal a denial of their motion for summary judgment that would essentially have dismissed a former teacher’s claim. The former Director of Student Life and Chaplain, who had also taught science filed suit after he was fired for conducting a chapel meeting on race and faith, including discussions on white privilege and systemic bias against people of color, that was not well-received by all students and parents. Because officials disagreed with Tucker’s scriptural interpretations, they relieved him of his duty to supervise weekly chapel meetings, eventually dismissing him. This led the teacher to file suit for wrongful termination in violation of Title VII, he claimed, because he opposed alleged racial discrimination at the school. Both the federal trial court and a divided Tenth Circuit, in a two-to-one judgment, rejected officials’ motion to dismiss Tucker’s claim because they agreed that whether he was a minister was a question of fact for a jury. The Tenth Circuit explained that at this point the ministerial exception did not protect the school from having to litigate Tucker’s claim further even though the faculty handbook under which he was employed regarded teachers as ministers.
A preliminary issue in ongoing litigation concerns what appeared to have been a settled point of law about the status of the ministerial exception after the Supreme Court upheld its constitutionality three times. In exempting faith-based employers from Title VII’s anti-discrimination provisions, the Court recognized that Congress acknowledged that the First Amendment, as extended her statutorily in Title VII, is designed to protect religion from the state, not the other way around. In their petition to the Supreme Court, school officials are essentially making the case that once they make a good faith argument that an individual is a minister, as Tucker had been by title before losing his job, then it should be the end of the discussion. In other words, school officials are maintaining that once an individual is named as a minister, the courts should not second guess the good faith assertions of religious leaders at the risk of violating the Establishment Clause and the statutory exception.
It is ironic that many proponents of the mythical Jeffersonian “wall of separation” between Church and state tend to view it as a one-way street to keep matters of faith out of public life but not to protect religious freedom. In other words, proponents of separation typically favor of having courts intervene to prevent religious activity from, as they would view it, intruding in public life whether challenging Christmas displays or prayer and Bible reading in public schools. Yet, these same separationists seem to have no qualms deferring to religious officials when jurists seek to interject themselves in disputes such as Tucker’s over who qualifies as a minister working in a faith-based school.
Another question arises over whether civil jurists should intervene in disputes beyond their expertise. More than twenty years ago, a good illustration of judicial hubris was on display in Skoros v. City of New York. The Second Circuit ruled that displays of a menorah along with the star and crescent in public schools in December was constitutionally permissible because they were convinced that these symbols had the actual and perceived secular purpose of promoting pluralism and tolerance and respect for diverse customs through holiday celebrations. The court also thought that a reasonable observer would not have understood that principal or primary effect of policy allowing the display of the star and crescent plus the menorah as being designed to advance or inhibit religion and there was no excessive entanglement between religion and government. However, the court affirmed that refusing to allow crèche or nativity scenes depicting the Christ Child as “purely” religious neither violated the Establishment Clause nor the Free Exercise rights of the parent who objected to the policy.
What the Second Circuit missed in Skoros was that while Islam and Judaism do not allow pictures or statues of religious leaders or the deity, Christianity has no such prohibitions. While some might regard it as a stretch to treat the a star and crescent and menorah as lacking any religious significance, might not judges have demonstrated some restraint by not getting involved in disputes where they apparently lacked adequate understandings of the religious issue being litigated? Alternatively, perhaps they could have taken the time to better grasp the underlying religious issues.
Separationists might suggest that it may be asking too much to expect civil judges to have expertise in matters of religion. However, if jurists do not take the time to understand the complexity of such issues, then their intervention calls to mind Justice Scalia’s pointed comment in Lee v. Wiseman, wherein the Court invalidated prayer at a public school graduation ceremony, in part, because it was psychologically coercive. Criticizing the Court, Scalia caustically mused that in such situations jurists have “gone beyond the realm where judges know what they are doing.”
Returning to Tucker, there can be no doubt that religious leaders must comply with laws designed to protect the employment rights of those who work in their institutions by not subjecting them to discrimination. At the same time, though, judges must recognize the limits to their authority, and perhaps wisdom, by deferring to the good faith judgments of religious leaders who are in better positions to determine who qualifies to serve in ministerial capacities advancing the tenets of their faiths.
Even though Tucker is not a final judgment on the merits of the underlying discrimination claim, one must hope that the Supreme Court agrees to take the case and/ or vacates in favor of school officials on the basis that they alone are in the best position to decide who qualifies as one of their ministers. Should the Court enter a judgment in favor of school officials, it would demonstrate its ongoing commitment to safeguarding religious freedom as enshrined in the Establishment Clause by continuing to uphold the ministerial exception and the discretion of leaders in faith-based institutions.
If you value the news and views Catholic World Report provides, please consider donating to support our efforts. Your contribution will help us continue to make CWR available to all readers worldwide for free, without a subscription. Thank you for your generosity!
Click here for more information on donating to CWR. Click here to sign up for our newsletter.
Was watching an earlier Barney Miller rerun, and one of the detectives arrested a man (actor Steve Landesberg?) dressed with the collar, handing out Bibles on the street for donations. When asked what church he was affiliated with he replied, “church of the street.”
Thank you Dr Russo for this thorough layman’s review of this issue. It’s needed so we can make sense out of the mad house the various other members of the legal profession have made of our system of laws.
“Do courts or religious leaders decide who qualifies as a minister?”
This is a false alternative. Who decided who qualified as a true prophet, the king (Ahab) or the 450 “religious leaders” the king brought with him? Neither; it was decided by Him Who answered with fire.
We can’t always go on pretending that the rules of American politics, either now or at the founding of the country, matter, but that the truth does not.