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Marci Hamilton

The Time Has Come for the Supreme Court to Carefully Examine the "Ministerial Exception," Which Allows Religious Employers to Discriminate in Hiring


Thursday, July 22, 2010

The Supreme Court has not yet addressed an important First Amendment religion doctrine that has percolated in the lower federal courts and in the state courts for years -- to the point that courts seem to be putting their finishing touches on the nuances of the doctrine. This doctrine establishes the so-called "ministerial exception" -- an interpretation of the First Amendment's Religion Clauses that requires the courts to avoid interfering with religious organizations' employment decisions regarding clergy and other religious employees who are involved in religious doctrine.

As I have written in past columns such as this one, this is a doctrine that pits anti-discrimination laws (that is, Title VII, the Americans with Disabilities Act, and their state counterparts) against religious-liberty claims. There is now a significant split among the courts regarding several aspects of the doctrine, and, therefore, it is time for the Court to weigh in. With federal appellate courts settling into their particular interpretations, we are seeing that the same claims can get significantly different treatment depending on the circuit.

Title VII Forbids Employment Discrimination But Not When the Ministerial Exception Applies

Title VII has an exception for religious groups that permits them to discriminate on the basis of religious belief. By contrast, there is no exemption to Title VII's prohibitions on race, national origin, or gender discrimination. The decision to create the belief exemption but to keep the other civil rights laws in place was intentional. But courts have been uncomfortable when dealing with the question of who can be a member of the clergy. Churches do not enjoy autonomy from the law, but the Establishment Clause does forbid courts from determining religious beliefs and that extends to a prohibition on judicial oversight of the choice of clergy. In order to stay out of that quagmire, the courts have crafted the ministerial exception, which is a First Amendment doctrine that creates exceptions to Title VII for religious entities, including houses of worship, religious organizations, and schools.

The exception's core idea is that the courts should not be in the business of second-guessing religious doctrine, belief, or the qualifications of clergy. Religious organizations have pushed to expand the latter category beyond official clergy to "ministerial employees"-- which means that courts have had to define what constitutes a religious employee.

To my knowledge, no ministerial-exception case has ever held that a religious group can discriminate on the basis of race. Most of the cases deal with claims of gender discrimination, though claims of age and disability discrimination also have been raised.

The typical case involves a woman who experiences gender discrimination or sexual harassment (sometimes in the form of a hostile work environment). These claims are often paired with a retaliation claim -- that is, a claim that the religious employer took action against the plaintiff after she complained about the discriminatory behavior.

One Notable Case: Lynette Petruska's Suit Against Gannon University

A classic example involved Lynette Petruska and her employer Gannon University, a Roman Catholic institution in Erie, PA. Petruska was the University chaplain for which there was no gender prerequisite. The record before the court indicated that she was fired on the basis of invidious and arbitrary gender discrimination.

A panel of the United States Court of Appeals for the Third Circuit originally held in Petruska's favor, in a decision by the well-respected Judge Edward Becker. Sadly, Judge Becker passed away; the opinion was not yet filed at that time, which voided the original decision.

Thus, the panel was reconfigured; there was a new 2-1 majority; and the judge who would have been a dissenter on the first three-judge panel wrote a new opinion for the new panel that came out against Petruska.

That opinion held that Petruska did not have a right to avoid gender discrimination because she was an employee of a religious institution. The panel majority claimed that the University essentially had an absolute right to select who would perform its spiritual functions, and noted that the position of the University Chaplain was one that involved the performance of spiritual functions.

The Petruska case raises the question whether an employment decision that is made arbitrarily, and not pursuant to religious belief, can still obtain immunity pursuant to the ministerial exception. Again, the factual record before the court indicated that Petruska's displacement by a man had nothing to do with any religious doctrine or belief. Yet the ruling panel decision glossed over that distinction.

In contrast, the U.S. Court of Appeals for the Ninth Circuit issued a far more just and reasonable ruling in Elvig v. Calvin Presbyterian Church. There, a female minister who was a victim of sexual harassment and retaliation was permitted to go forward with her Title VII claim, because the record showed that there was no religious belief or doctrine that had motivated the Church's failure to stop the harassment.

The Ninth Circuit explained in Elvig that " [T]he Church could invoke First Amendment protection from Title VII liability if it claimed doctrinal reasons for tolerating or failing to stop the sexual harassment Elvig alleges." In other words, the court there saw some role for the ministerial exception -- but did not interpret it as a complete barrier to claims by religious employees, and even clergy. If the religious institution was not acting out of religious motives, the Ninth Circuit reasoned, then it was liable for Title VII violations. The same reasoning was employed by the Ninth Circuit in Bollard v. California Province of the Society of Jesus. Bollard was a novice at a Jesuit prep school and then attended a Jesuit seminary. He alleged sexual harassment involving his superiors in each place, who sent him pornography and made sexual advances. The court held that the ministerial exception did not protect the Jesuits, because the discrimination happened in a context divorced from clergy selection and in the absence of a religious belief in the sexual harassment.

This issue tests the limits of the ministerial exception and whether it may well violate the Establishment Clause if it is taken too far. Permitting religious organizations to engage in invidious and arbitrary discrimination without relation to their religious doctrine is troubling. It is one thing to permit only women to be priests because of the Church's beliefs, but it is quite another to immunize an institution from liability for the actions of its managing employees that subject a seminarian to pornography and sexual advances.

Other Cases Also Show Why It's Time for the Supreme Court to Take On a Ministerial-Exception Case

In two recent cases, the U.S. Courts of Appeals for the Tenth and Sixth Circuits further added to the divisions in courts' approaches to the ministerial exception. The key issue in these cases was how to determine if an employee was a "religious" employee, an issue that arises because the courts have not limited the doctrine to clergy alone.

The Tenth Circuit held against the female director of the Department of Religious Formation at a Roman Catholic diocese, in Skrzypczak v. Roman Catholic Diocese of Tulsa . The plaintiff submitted evidence that she was an administrator only, but the panel held that she was a religious employee for the purposes of the ministerial exception, because she headed a department devoted to religious issues and because she taught some religion classes.

In another ministerial-exception case, the U.S. Court of Appeals for the Sixth Circuit -- in Perich v. Hosanna-Tabor Evangelical Lutheran School -- ruled in favor of a kindergarten teacher who brought a disability-discrimination claim under the Americans with Disabilities Act (ADA). Perich became ill and took a disability leave in order to learn the cause. After her doctor diagnosed her with narcolepsy and she received medication for the condition, her doctor cleared her to return to the classroom -- but the school fired her.

The Sixth Circuit considered whether she was a "ministerial employee." The panel held that she was not, because only 45 minutes of her day on average was spent on religious topics. Therefore, it concluded that the ministerial exception did not apply, and that the court retained subject-matter jurisdiction over her ADA claim.

In her concurrence, Judge Helene M. White pointed out that whether a teacher in a religious school was a ministerial employee is an issue that is subject to a split among the courts. Sometimes, a teacher like Perich -- who taught a small amount of religious doctrine, but mainly taught secular subjects -- was found to be a ministerial employee but sometimes the teacher was not, as was the case with Perich herself. Although Judge White agreed with the majority's conclusion in the Perich case, she thought it necessary to point out the issue was a close one.

In Skrzypczak , the Tenth Circuit also addressed one strand of ministerial-exception doctrine that has caused confusion and a split in authority: Some courts have characterized the ministerial exception as "jurisdictional," which would mean that a court could not even hear the case because it lacks subject-matter jurisdiction. That is how the Sixth Circuit approached the issue in the Perich case. In contrast, the Tenth Circuit in Skrzypczak , and the Third Circuit in Petruska, made it clear that subject-matter jurisdiction is determined by the fact there is a federal question under the First Amendment.

There really should be no question that the courts have jurisdiction over this First Amendment question. The federal question gives the federal courts subject matter jurisdiction, plain and simple. The Tenth Circuit thus proceeded to the First Amendment questions, without weaving subject matter jurisdiction into those issues. The Sixth Circuit's reasoning that it was deciding subject matter jurisdiction is jarring, because its analysis is really all about the First Amendment, not whether it should be hearing the case in the first instance. This is one of those issues that seems pretty obvious, but since some courts have settled precedent going the wrong way, the Court needs to take such a case to put them all on the same track.

Three Key Questions Regarding the Ministerial Exception Show Why the Doctrine Deserves Supreme Court Review

Thus, there are at least three issues under the ministerial exception that are causing confusion -- or at least debate -- among the lower courts: (1) Is the ministerial exception a jurisdictional issue? (2) Does an employment decision that is not motivated by religious belief still receive the protections of the ministerial exception under the First Amendment? and (3) When is a teacher in a religious school a ministerial employee for purposes of the ministerial exception?

The ministerial-exception doctrine has been around since the 1970s, and was first embraced by the U.S. Court of Appeals for the Fifth Circuit in 1972 in McClure v. Salvation Army , . That makes the doctrine almost 40 years old and yet, its contours are not yet settled. In light of the situation, it seems that it is high time for the High Court to accept a ministerial-exception case.

Marci Hamilton, a FindLaw columnist, is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge 2008). A review of Justice Denied appeared on this site on June 25, 2008. Her previous book is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005), now available in paperback. Her email is .

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