Last Wednesday the U.S. Supreme Court (scroll down for decision) explored the interaction between the laws prohibiting employment discrimination (here, the ADA), on the one hand, and the First Amendment’s command that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”, on the other.
The Supreme Court Recognizes the “Ministerial Exception”
The Court held that these prohibitions “bar the government from interfering with the decision of a religious group to fire one of its ministers” and thus provide “an affirmative defense to an employment discrimination suit where the employer is a religious group and the employee bringing the suit is one of the group’s ministers”. In upholding the so-called “ministerial exception”, it reasoned:
Requiring 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. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.
Who is a “minister”?
Having recognized the ministerial exception, the Court considered whether it applied here. While reluctant “to adopt a rigid formula for deciding when an employee qualifies as a minister”, it held that the aggrieved employee here (Perich) qualified as a minister, in light of the circumstances of her employment, namely: (1) her title (“Minister of Religion”); (2) her “significant … religious training followed by a formal process of commissioning”; (3) the fact that she held herself out as a minister by, for example, claiming a special tax allowance; and (4) the fact that her “job duties reflected a role in conveying the Church’s message and carrying out its mission”, including by teaching religion four days a week and leading prayers three times a week.
It was not dispositive that “others not formally recognized as ministers by the church perform the same functions” nor that “religious duties consumed only 45 minutes of each workday, and that the rest of [Perich’s] day was devoted to teaching secular subjects”. In this regard, the Court noted: “The amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed and the other considerations discussed above.”
The Court also rejected the suggestion that the petitioner’s “asserted religious reason for firing Perich … was pretextual”, since “[t]he 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” but rather to “ensure that the authority to select and control who will minister to the faithful … is the church’s alone.”
The Court was careful to limit its holding to the applicability of the ministerial exception to bar an “employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her” and to “express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers”.