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A Religious Organization’s Autonomy in Matters of Self-Governance: Hosanna-Tabor and the First Amendment

In the second week of January, the U.S. Supreme Court handed down its unanimous decision in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission. The case involved a fourth-grade teacher, Cheryl Perich, suing her employer, a church-based school, alleging retaliation for having asserted her rights under the Americans with Disability Act (ADA). The Equal Employment Opportunity Commission filed the original suit, and the teacher intervened as a party. In the lower federal courts Hosanna-Tabor raised the “ministerial exception,” which recognizes that under the First Amendment religious organizations have the authority to select their own ministers—which necessarily entails not just initial hiring but also promotion, retention, and other terms and conditions of employment. Over the last forty years the ministerial exception has been recognized by every federal circuit to have considered it. Indeed, the exception overrides not just the ADA but also a number of venerable employment nondiscrimination civil rights statutes. Just who is a “minister,” however, has varied somewhat from circuit to circuit—and in any event the Supreme Court had never taken a case involving the ministerial exception.

The Supreme Court, in an opinion by Chief Justice John Roberts, wrote that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” The Court went on to say that although “the interest of society in the enforcement of employment discrimination statutes is undoubtedly important . . . so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” Accordingly, in a lawsuit that strikes at the ability of the church to govern the church, any balancing of interests between a vigorous eradication of employment discrimination, on the one hand, and institutional religious freedom, on the other, is a balance already struck by the First Amendment.

I. Internal Governance of Religious Organizations

The U.S. Department of Justice’s Office of the Solicitor General (OSG) claimed that there was no ministerial exception because the First Amendment did not require one. All that was required, argued the OSG, was that government be formally neutral with respect to religion and religious organizations. That was successfully done here, said the OSG, when Congress enacted the ADA, which by its terms treated religious organizations just like every other employer when it came to discrimination on the basis of disability. By extension, the same would be true of federal and state civil rights statutes prohibiting discrimination on the bases of sex, age, race, and so forth. The OSG allowed that religious organizations had freedom of expressive association, but so did labor unions and service clubs, and they were subject to the ADA. In the great cause of equal treatment, intoned the OSG, the government could be blind to religion. To be sure, Congress could choose to accommodate religion, but the First Amendment did not require it to do so.

The Court’s reaction to the OSG’s religion-blind government was to call the proposition “remarkable,” “untenable,” and “hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” Solicitude, of course, means attentive care or protectiveness. Religious organizations do have freedom of expressive association to the same degree as other expressional groups. But religious organizations have more. The very text of the First Amendment recognizes the unique status of organized religion, a status that makes a properly conceived separation of church and state desirable because the right ordering of these two centers of authority is good for both.

So the Hosanna-Tabor Court held that there is a constitutional requirement for a ministerial exception. Before proceeding to examine more closely the facts that convinced the Court that this fourth-grade teacher was a “minister,” the Chief Justice had to distinguish the leading case of Employment Division, Department of Human Resources of Oregon v. Smith. The State of Oregon listed peyote, a hallucinogenic, as one of several controlled substances and criminalized its use. The plaintiffs in Smith held jobs as counselors at a private drug rehabilitation center. They were fired for illegal drug use (peyote), and later denied unemployment compensation by the state because they were fired for cause. Male members of the Native American Church ingest peyote in the course of a sacrament. The Smith Court held that the Free Exercise Clause was not implicated when Oregon enacted a neutral law of general applicability that happened to have an adverse effect on a religious practice. Chief Justice Roberts admitted that the ADA was a general law of neutral application that happened to have an adverse effect on Hosanna-Tabor’s ability to fire a classroom teacher. But he then, for a unanimous Court, drew this distinction between the present case and Smith:

[A] church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. See [Smith, 494 U.S.] at 877 (distinguishing the government’s regulation of “physical acts” from its “lend[ing] its power to one or the other side in controversies over religious authority or dogma”).

Accordingly, there is a subject-matter class of cases to which the rule in Smith does not apply described as “an internal church decision that affects the faith and mission of the church itself.” The firing of Perich was characterized as “internal,” meaning a decision of self-governance. The firing of the plaintiffs in Smith was characterized as “outward,” meaning that the state’s denial of unemployment did not regulate a decision of church governance. Moreover, the ingestion of peyote regulated in Smith was characterized as a “physical act,” whereas the firing of Perich regulated by the ADA was not a physical act but a “church decision.”

Obviously a sacrament is an important religious practice. Obviously the plaintiffs in Smith suffered a burden on religious conscience that was unrelieved by the rule of Smith. But the point of Hosanna-Tabor was not to relieve burdens on religious conscience. If it were, then Hosanna-Tabor would have overruled Smith. That did not happen. Rather, Hosanna-Tabor distinguished Smith. What was remedied in Hosanna-Tabor was not a burden on religious conscience but government interference with the organizational autonomy of religious groups.

Following the quoted language above, the Hosanna-Tabor Court went on to provide another example where Smith does not apply: in lawsuits over church property, the government must not take sides on the question concerning the rightful ecclesiastical authority to resolve the property question. These two examples—a church selecting its own minister and a church determining the rightful ecclesiastic to solve property disputes—are contrasted with the religious practice at issue in Smith, namely the ingestion of peyote as part of a sacrament. The Court distinguished Hosanna-Tabor from Smith because the decision to hire and fire a minister is about who governs the church.

It follows that projecting the scope of Hosanna-Tabor’s distinction from Smith means determining what additional subject matter falls into the description “internal church governance.” There is help from another quarter: Justice Alito’s concurring opinion, joined by Justice Kagan, said that this subject-matter class of cases recognizes a “religious autonomy” found in the Establishment and Free Exercise Clauses that together protect “a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.”

A survey of the cases yields relatively few—but important—subject-matter areas within which civil officials have been barred categorically from exercising authority: (1) questions about correct doctrine and resolving doctrinal disputes; (2) the choice of ecclesiastical polity, including the proper application of procedures set forth in organic documents, bylaws, and canons; (3) the selection, credentials, promotion, discipline, and retention of clerics and other ministers; (4) the admission, discipline, and expulsion of organizational members; (5) disputes over the direction of the ministry, including the allocation of resources; and, (6) communication to the organization’s clerics or the laity about matters of governance.

The types of lawsuits that fall into the Hosanna-Tabor category of internal church governance are likely few because, inter alia, no reply is permitted based on governmental interests. That is, once it is determined that a suit falls within the subject-matter class of church governance, there is no judicial balancing. There is no balancing because there can be no legally sufficient governmental interest. The First Amendment has already struck that balance. In this regard, the Court lectured the OSG concerning its argument that Hosanna-Tabor’s religious reason for firing Perich was pretextual. “This suggestion misses the point of the ministerial exception,” wrote the Chief Justice.

The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” . . . is the church’s alone.

Again, the religious autonomy recognized in Hosanna-Tabor is categorical. A federal court has Article III jurisdiction to determine whether the employee in question is a minister. If so, that is the end of the lawsuit. Neither the government nor the employee is permitted to reply that there is an offsetting interest.

As should now be apparent, the decision in Hosanna-Tabor is not about an ordinary constitutional right—subject to balancing—but about a structural limit on the scope of the government’s authority. That Hosanna-Tabor is a limit on the regulatory authority of the government explains why the case is based in part on the Establishment Clause. The text of that clause bespeaks a structural limit on authority: “Congress shall make no law” about a given subject matter described as “an establishment of religion.” As the Chief Justice wrote, “[T]he Free Exercise Clause . . . protects a religious group’s right to shape its own faith and mission” by controlling who are its ministers, and “the Establishment Clause . . . prohibits government involvement in such ecclesiastical decisions.” The Chief Justice gave examples where the English Crown had interfered with the appointment of clergy in the established Church of England. The Establishment Clause was adopted to deny such authority to our national government. Justice Alito is helpful here as well by pointing out one of the historic reasons for why the separation of church and state limits the civil government: “[I]t is easy to forget that the autonomy of religious groups, both here in the United States and abroad, has often served as a shield against oppressive civil laws.” Religious organizations working to check a government with authoritarian pretensions is one way in which church-state separation does useful work.

Balancing is done in free exercise cases, but not cases decided under the Establishment Clause. In Hosanna-Tabor, there is a welcome absence of verbal tests: enjoining "excessive government entanglement with religion"; prohibiting "endorsement” of religion that lessens the standing of some in the political community; and the “principal or primary effect must be one that neither advances nor inhibits religion.” Such tests are still valid when applicable, but not in cases like Hosanna-Tabor where the subject matter warrants the categorical protection of what Justice Alito called “religious autonomy.” In such cases, the First Amendment, understood within the historical setting that gave rise to its adoption, has determined that there are a few areas of authority that have not been rendered unto Caesar.

II. Testing the Scope of “Internal Church Governance”

 In future litigation, advocates on the losing side of Hosanna-Tabor will push hard to narrow the foregoing subject-matter classes that implicate internal church governance. Contrariwise, advocates for churches and other religious organizations will push to read the class of decisions affecting “the faith and mission of the church itself” as broader than mere governance—arguing that the mission of church is as expansive as reaching the entire world. The civil courts will do well to resist both of these pressures. The Hosanna-Tabor categories are workable so long as they are kept to the sphere of church governance, within which religious organizations are truly autonomous.

Assume that on a Sunday morning the senior pastor of a large church endorses a political candidate for public office whose name will appear on the ballot in a partisan election. The endorsement is integrated into the pastor’s sermon, and comes nine days before the general election in which the candidate in question is the challenger to a sitting incumbent. There is no attempt by the pastor to claim that in giving the endorsement he is speaking only in his individual capacity, and not for the church. Polls say the race is tight. Further assume that the church is tax-exempt under Internal Revenue Code § 501(c)(3), and thus the endorsement violates IRS statutes and regulations. Is this the type of church communication to the laity that is protected by Hosanna-Tabor? Because the communication is about a matter other than governance within the church, I think the endorsement is not protected by Hosanna-Tabor.

We should not suppose that Hosanna-Tabor reaches communication to the congregation about everything, even when done by a cleric on a Sunday from the pulpit. Appeals from a church to the effect that the laity should vote against President Obama because he failed to approve the TransCanada Keystone XL pipeline coming out of Alberta is not about church governance. There may well be a Christian view of the environment and the continued use of fossil fuels, but any such religious teaching is remote to the question of a church’s self-government.

An example of a communication that was about governance led to a defamation claim growing out of the oversight of a local church by denominational leaders. In a case that arose in Iowa, the district superintendent of the United Methodist Church had heard that certain disruptive activities were occurring at a local church. The superintendent visited the church, attended a worship service, and talked widely with congregants. After returning to his office, the superintendent wrote a letter to the congregation urging that the local church no longer tolerate the disruptive actions of one of its members (she was not named, but it was apparent to most congregants who was being singled out). That person sued, alleging that the letter was defamatory. The state court acknowledged that the letter could not be the basis of a tort claim with respect to “communications between members of a religious organization concerning the conduct of other members or officers.” This is consistent with the approach in Hosanna-Tabor. A problem developed, however, because the letter was mailed by the superintendent to an audience wider than just the officers and members of the church. The broader distribution took the letter—and the alleged libel—outside the sphere of church governance.

An illustration of the “direction of the ministry” issue implicating Hosanna-Tabor occurs in the spate of denominational decisions to close local churches and schools. The Archbishop of Boston sought to close a parish church as part of an overall plan to consolidate resources in a time of financial stress and a shortage of priests. Several parish members sued and sought a preliminary injunction. The district court denied the injunction and held that parish property was under the control of the Archbishop. The court found no evidence of a constructive or resulting trust on behalf of the parish church, as an entity, or the parish members, as individuals. That result is certainly correct, but Hosanna-Tabor would take a more direct approach. That the Catholic Church has an episcopal polity is well understood, and that polity places the final decision concerning matters of property in the hands of the diocesan bishop. Hosanna-Tabor tells us that civil courts are to defer to the decisions of the highest ecclesiastical authority with respect to disputes like this that concern the future direction of the ministry.

Three years ago legislation was debated in the State of Connecticut that would have reshaped the future direction of Catholic ministry at each local parish. The bill would have taken financial oversight of each local church away from the diocesan bishop and given the authority to a board of directors made up of lay parishioners. What engendered the bill was a case of embezzlement by a parish priest, a matter already addressed by a criminal prosecution. The proposed legislative remedy was far broader. Only after considerable public controversy and a demonstration of opposition by Catholic leaders was the bill withdrawn. Under Hosanna-Tabor, a court would find that the bill strikes at self-governance and so is per se unconstitutional.

Consider a more nuanced illustration. A female minister on the staff of a large municipal church is sexually harassed by her supervisor. He pressures for quid pro quo sex, and she finally relents in return for a favorable promotion and transfer within the denomination. Three months after the transfer she sues her church under employment civil rights legislation for having permitted a workplace environment where sexual harassment was widespread. The denomination promptly dismisses her. The minister then amends her complaint, adding a claim for retaliation. With reference to Hosanna-Tabor, a civil court should dismiss nearly the entire claim of sexual harassment because the selection of ministers is a matter of internal governance. However, a limited civil rights claim can be kept but sharply pared down to a remedy for tort-like damages as a result of the sexual harassment. The minister cannot sue for reinstatement, or for back pay, front pay, or any other compensation, punitive damages, or attorney’s fees based on the loss of her job. The retaliation claim is derivative of the claim for sexual harassment; because the primary job-loss claim is precluded by Hosanna-Tabor, the retaliation claim must fail as well. The minister can sue her former supervisor alleging an intentional tort. And the state may try to prosecute the supervisor for a sexual assault.

Finally, consider a case where the spouse of a minister alleged that she suffered harm as a result of her husband’s dismissal from a church’s employment. Such a claim is entirely derivative of the church’s decision not to retain her spouse. Following Hosanna-Tabor, such claims will continue to be dismissed.

III. Who is a “Minister”?

While declining on this occasion to set down a more rigid test or list of factors for determining who is a “minister,” a unanimous Supreme Court easily found that in function and credentials Cheryl Perich was a minister. While declining to range too far beyond the case at hand, the Court said it agreed with the circuit courts “that the ministerial exception is not limited to the head of a religious congregation.” It seems implicit in Hosanna-Tabor that for the ministerial exemption to be in play the employer would likely need to be religious—but it does not need to be a church. Additionally, if the employer is not a church, the religious fervor of the religious organization may influence the determination of whether the employee is a minister. None of these issues was present in Hosanna-Tabor, and so they were not discussed.

Chief Justice Roberts began by noting that Hosanna-Tabor held Cheryl Perich out as a minister. She had received the title of “Minister of Religion, Commissioned,” which was attained only with formal training that took her six years to complete. Perich also held herself out as a minister in her communication with others and by taking a housing allowance for ministers on her tax return. As to job functions, Perich taught religion classes four days a week, led her students in prayer three times a day, conducted a daily devotional, accompanied her class to chapel every Friday, and took her turn with the other teachers in leading the chapel service.

The OSG and Perich both pointed out to the Court that other teachers in the school who do not hold the title of a “commissioned” teacher did the same above-listed religious activities. In reply, the Court first agreed that a religious title, like that held by Perich, without the substance, would not itself make an employee a minister. But it was also wrong to dismiss the significance of a title: it is properly a factor in concluding that Perich was a minister. Second, the fact that other teachers did not have a religious title but did the same religious duties did not help Perich’s case. First, it might be that the other teachers were also ministers within the meaning of the exception. Second, it cannot be dispositive that performing the religious duties did not require the title held by Perich, wrote the Chief Justice, especially in light of the agreed facts that there was a shortage of commissioned teachers.

The circuit court had ruled that Cheryl Perich was not a minister because the religious duties such as religion class, prayer, and chapel consumed only a small part of her school day, perhaps as little as forty-five minutes. To that line of analysis, the Chief Justice said, “[T]he issue before us . . . is not one that can be resolved by a stopwatch.” It is not that the amount of time spent on particular duties is irrelevant, wrote the Court, but that the time “factor cannot be considered in isolation, without regard to the nature of the religious functions performed,” as well as the other factors.

Summarizing his points, the Chief Justice wrote: “In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception.”

Justice Thomas, concurring, took a view more favorable to the church. So long as a church asserted in good faith that one of its employees was a minister, it was his argument that this should be the end of the matter. To probe beyond testing the sincerity of the church’s assertion was to have a civil court resolve a religious question, a matter prohibited by the First Amendment.

Justice Alito, concurring, joined by Justice Kagan, believed that the Court should take more affirmative steps to resolve the inevitable cases that will come before the lower courts. While Justice Thomas would leave the definition of minister entirely up to the church, Justices Alito and Kagan would not. These two Justices twice described in near identical terms three functions, at least one of which is performed by an employee who they would considered a minister. The first passage reads: “The ‘ministerial’ exception . . . should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” The second passage reads:

Different religions will have different views on exactly what qualifies as an important religious position, but it is nonetheless possible to identify a general category of “employees” whose functions are essential to the independence of practically all religious groups. These include those who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation.

Justices Alito and Kagan sought to guide future courts. They believed that a minister will serve at least one of three functions: lead the organization, conduct worship and rituals, or teach the faith. Given that the Chief Justice’s opinion does not provide a baseline for defining who is a minister, I predict many lower courts will at least mention, if not follow, Justices Alito and Kagan when it comes to the three alternative functions of a minister. 

What about the status of a faculty member at a religious school who teaches only subjects such as history, mathematics, science, or grammar, and is not involved in classroom prayer, devotions, or chapel? Justices Alito and Kagan opined that such a teacher is not a minister. Although a religious school that wholly integrates faith and temporal learning might provide a counterexample, I think Justice Alito’s presumption will generally hold up. I hasten to add that this does not mean that a religious school has lost all of its First Amendment rights vis-à-vis the teacher devoted exclusively to math or history. For example, the math teacher could be hired and fired on a religious basis, albeit not on the bases of race, sex, disability, and so forth. For a religious school to discharge a teacher for religious cause is parallel to a legitimate business reason.

 Conclusion

In Hosanna-Tabor, a unanimous Supreme Court took a discrete line of cases involving religious disputes and church property and enlarged on it so as to give rise to a full-throated protection of religious institutional autonomy. The Court did not assume that religious organizations act without error. But when mistakes are made of a certain subject-matter class, Hosanna-Tabor locates authority solely in the religious organization as a matter of self-governance. Far more harm than good would result if civil government were to intervene in this class of cases, harm that would flow from a disorder of relations between church and state.

Going forward, there is danger from those who were on the losing side of Hosanna-Tabor and who will deny the decision’s obvious importance. But Hosanna-Tabor is also in danger from those who embrace it eagerly and then proceed to apply it where not intended. An overly-eager embrace will yield a series of lower court opinions seeming to cut back on Hosanna-Tabor, with all the attendant rhetoric about a “clear and present danger” of religion unregulated and out of control.

© Carl H. Esbeck 2012.

The preceding article will appear in vol. 13 Engage issue 1 (forthcoming 2012). A PDF version including footnotes can be found here.


 

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