Hosanna-Tabor and the Ministerial Exception
Laycock, Douglas, Harvard Journal of Law & Public Policy
I. THE FACTS A. The Facts Relevant to the Ministerial Exception B. The Facts Relevant to Whether There Was Discrimination II. FRAMING THE CASE IN THE SUPREME COURT III. THE LEGAL ARGUMENTS A. Vocabulary B. The Reasons for the Rule 1. Religious Rules That Would be Prohibited in Secular Employment 2. The Church's Right to Evaluate and Select Its Own Ministers C. The Supreme Court Precedent 1. The Church Governance Cases 2. Employment Division v. Smith D. Litigating These Cases Without a Ministerial Exception IV. THE COURT'S OPINION
This case began, as so many do, with a local dispute inside a church. A member of the congregation represented the church in the lower courts. This lawyer was not a religious liberty specialist, but he preserved all the issues for appeal, so he did his job. The Becket Fund for Religious Liberty discovered this case as it came down in the Sixth Circuit and offered to do a petition for rehearing and then a petition for certiorari. After rehearing was denied, they called and asked if I would help with the cert petition.
The Becket Fund lawyers were a lot more enthusiastic about the case than I was. From our perspective, the case had some good facts and some bad facts. But by the end, I thought this should be a clear case for the Church. And we now know that the Supreme Court agreed. (1)
I. THE FACTS
A. The Facts Relevant to the Ministerial Exception
There were two plaintiffs in the case. The Equal Employment Opportunity Commission (EEOC) has authority to file suit on behalf of employees. (2) The EEOC did so in response to a charge filed by Cheryl Perich, who subsequently intervened as an additional plaintiff. (3) Cheryl Perich was a commissioned minister in the Lutheran Church--Missouri Synod and taught fourth grade at the Hosanna-Tabor Evangelical Lutheran Church and School. (4) If she had been a nun serving as a school teacher, everyone would have understood the religious significance of her position, and this would have been a very easy case. But commissioned minister is a position that is unfamiliar to most people outside the Lutheran Church.
Commissioned minister is a position that Lutherans have derived from a passage in the Book of Acts, where the Apostles first appoint assistants to help them. (5) The commissioned minister is clearly distinguished from the laypeople on the one hand and from the ordained pastor on the other. The commissioned minister is understood to perform part of the responsibilities of the ordained pastor. (6) The ordained pastor is responsible for teaching the faith to all the faithful, including the children, and he can delegate some of his responsibilities to commissioned ministers. (7) In the Lutheran understanding, "[a] Christian teacher, for instance, is not merely a Christian who teaches but a servant of Christ and the church who, at the call of the church, is helping the called pastor to fulfill his mandate to teach the Gospel." (8)
To be a commissioned minister, a candidate must complete eight college-level theology courses and be approved on standards of Christian faith and character. (9) Once certified as eligible, a candidate must be called by a congregation. (10) A call can be rescinded only for cause and by a supermajority vote of the congregation that issued the call. (11) Perich's call was ultimately rescinded by the congregation at Hosanna-Tabor. (12)
Perich taught a religion class four days a week, and led her class in daily prayers and devotional exercises, devoting about forty-five minutes of class time to religion each day. (13) In rotation with the other six teachers at the school, she planned and led chapel services. A rotation of seven teachers implies that she led chapel about five times a year, but the Court accepted her testimony that she led chapel only about twice a year. …