Court Smokes Right Stuff on “Religious” v. “Secular”

This is my third, and for the moment final post on some views expressed at

the Human Resources and Mission: Discussion Blog for Catholic Colleges and Universities.

It is very long, and not so entertaining, here and there, and I have decided to give you a take-home assignment on it, so don't worry. 

Today’s topic involves a recent Supreme Court Case—Hosanna-Tabor Evangelical Lutheran Church And School, Petitioner,
V.
Equal Employment Opportunity Commission, Et Al. That link is to the shorter "syllabus," and the full case can be found here. 

One of hr-forum-ccu.blogspot.com/’s creators, the Rev. Craig B. Mousin*, is encouraged by this decision to think that there are new possibilities flowing from it that will allow religious colleges and universities to better follow both civil and religious “laws,” mainly by offering foreign ministers employment opportunities in the United States, without government interference, on the basis of what is known as the “ministerial exception.”

My view of the same case is that the language used by the Supreme Court in deciding it should be very encouraging to adjunct and contingent faculty at Catholic colleges and universities—and at other religious schools—as they undertake to improve their currently unacceptable working conditions.

I take a broader view. This is, clearly, an interesting moment for Catholic colleges and universities, and for adjunct and contingent faculty, because three Catholic schools are currently contesting three decisions by the National Labor Relations Board to recognize as legitimate attempts by part-time adjunct faculty to organize unions.

Now, by the way, before I forget, also have a look at yesterday's Motley Monk post, which has a view that should be considered: I don't agree with this particular post, but it's interesting. 

Now though, my main idea is this: I think Hosanna-Taber has a direct bearing on legal thinking in such matters.

What’s the right thing to do? What does the secular law demand or tolerate? How do these things mesh with “religious freedom,” including the “ministerial exception” and other exemptions connected to First Amendment guarantees?

But, let's see. To the case itself. 

The Case: The “Called Teacher” and the Ministerial Exception

Cheryl Perich, a “Called Teacher,” with a “Diploma of Vocation” carrying the status of “commissioned minister” in the Lutheran Church-Missouri Synod, taught various grades at the Hoassana-Tabor Evangelical Church School, including math, language arts, social studies, science, gym, art, and music. She also taught a religion class, through 2004, and also led prayer and devotional services for students, daily. She even sometimes led the weekly school-wide chapel service.

Perich, beginning in June 2004 to suffer symptoms diagnosed as narcolepsy, asked for and received disability leave for a short period, and then asked at the beginning of 2005 to be reinstated in her job. She found that the school had contracted a “lay teacher” to fill the position, and also that the school was concerned about her illness and how it might affect her ability to teach.

Unwilling to resign, Perich protested that she was, or soon would be, capable of work, but she was fired. She then sued the school, with the help of the Equal Employment Opportunity Commission, and alleged violations of her rights under the Americans with Disabilities Act.

Hosanna-Tabor countered, with a claim for the "ministerial exception," which concerns employment matters between ministers and religious institutions, allowing the latter almost complete liberty in regard to employment disputes.

The school asked for a summary dismissal.

The District Court, seeing that the “ministerial exception” indeed appeared appropriate—Perich was, after all, a “Called Teacher” and a leader of religious services—granted a summary judgment in favor of the school.

EEOC appealed, to Sixth Circuit Court of Appeals, and that court quickly sent it back to the district, asking the lower court to look again at the merit’s of Perich’s claims, and giving its opinion that Perich wasn’t really a  "minister" under the “exception,” because her duties as a “called teacher” were just too much like her duties as a “lay teacher.”

The Supreme Court, on getting Hosanna-Tabor’s appeal of this decision, was then faced with the same challenge as the lower courts: was Perich a “minister” or not?

This means that the highest court in the land had to make some kind of decision as to what was and what wasn’t “religious.”

Justice Roberts Reviews the Ministerial Exception

The decision, to accept the “ministerial exception” claimed by Hosanna-Tabor, was unanimous, and the decision was written mainly by Chief Justice Roberts, with two concurring but clarifying/stipulating comments being offered by 1) Justice Thomas and 2) Justice Alito, with Justice Kagan.

Justice Roberts made clear what the main point was, early on:

Since the passage of Title VII of the Civil Rights Act of 1964 . . . . the Courts of Appeals have uniformly recognized the existence of a "ministerial exception," grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.

Roberts also rejected one argument, from EEOC and Perich, involving members of the Native American Church who had been denied state benefits after being fired for drug violations involving the drug peyote, which is a NAC sacrament. Insofar as the Supreme Court had upheld this treatment of the NAC members, the logic of the argument was simple enough: the court had itself affirmed the supremacy of Federal law in at least one case of “religious” expression. 

The Chief Justice, though, defended the state’s right to deny benefits to the NAR members. Even though the peyote may well have been “ingested for sacramental purpose,” he wrote, the right of free speech, in this case meaning the right to a “religious exemption” does not

. . . relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).

And now, back to the Ministerial Exception,” and who qualifies. As Roberts saw it, the lower courts have never limited the category of “minister” to, for instance, the “head of a religious congregation,” and he was “reluctant,” furthermore, “to adopt a rigid formula for deciding when an employee qualifies as a minister.”

A "rigid formula" was not necessary, however, in the present case, and he easily found Perich to be a “minister.” 

This clearly required, if not a rigid formula, that he somehow make a distinction between “religious” and “secular” functions, which he easily did, as follows:

1) The Hosanna-Tabor School itself categorized Perich as a “minister,” someone who held a "diploma of vocation," and gave her the title "Minister of Religion, Commissioned."

2) Perich herself accepted that she was a “minister of the Church” by accepting her religious titles, teaching religious lessons to students, taking part in and even leading religious services, and even claiming a specific housing allowance on her taxes, available only to ministerial employees

According to Roberts, furthermore, the 6^th Appeals Court had muddied the waters by, for instance, giving “ too much weight to the fact that lay teachers at the school often performed the same religious duties as Perich,” and by placing “too much emphasis on Perich's performance of secular duties.”

Roberts also considered the amount of time Perich devoted to either “religious” or “secular” tasks.

It is true that her religious duties consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects.

However, this had no bearing on Perich’s status as a “minister,” and this seems to be the thrust of Roberts’ argument. That status was unchallenged, and Perich’s firing was protected, after all, by the “ministerial exception.”

It is the status of the person, as a “minister” or not, which is at issue, it seems, and indeed, Roberts wrote that “a purely secular teacher would not qualify for the "ministerial" exception.” Apparently, anyone who is a “minister” in Federal employment law is a such a "minister" without regard to whatever or however much he or she also performs "secular" functions.  

Roberts therefore held the opinion that Perich, being clearly a “minister,” was not within her rights to pursue a suit against the employers who took her on as a “minister.” In conclusion, the Chief Justice also pointed to what he saw as the legal limits of the decision:

Today we hold only that the ministerial exception bars such a suit. We 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. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

Thomas, Alito, and Kagan: Notes on the meaning of “Minister”

Now, to the two concurring but clarifying and/or stipulating opinions:

1) Justice Thomas added that:

…a religious organization's right to choose its ministers would be hollow, however, if secular courts could second-guess the organization's sincere determination that a given employee is a "minister" under the organization's theological tenets.

Justice Thomas also wrote that “the question whether an employee is a minister is itself religious in nature,” and worried that any “civil definition of "minister" might cross the line.

Nevertheless:

The Court thoroughly sets forth the facts that lead to its conclusion that Cheryl Perich was one of Hosanna-Tabor's ministers, and I agree that these facts amply demonstrate Perich's ministerial role. But the evidence demonstrates that Hosanna-Tabor sincerely considered Perich a minister. That would be sufficient for me to conclude that Perich's suit is properly barred by the ministerial exception.

2) Justice Alito, with Justice Kagan concurring, added this comment:

…to clarify my understanding of the significance of formal ordination and designation as a "minister" in determining whether an "employee" of a religious group falls within the so-called "ministerial" exception.

Since, for instance, the term “minister” has traditional Protestant connotations, the court should make plain that the religious complexity of the country demands that the “ministerial exception” apply to all types of religious “employees.”  Therefore:

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. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group's right to remove the employee from his or her position.

Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance. 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.

A Wonderful Opportunity for Mission and Values

Rev. Craig B. Mousin, in his essay on this case, “The Messenger Matters,” holds that the decision “provided a wonderful opportunity to merge the biblical message and Catholic Social Teaching with mission and values in employment decisions,” and, while I don’t contest this, I do think it is a very incomplete view of its importance.

In his analysis, Rev. Mousin focuses on an EEOC-Perich argument, not exhaustively settled by the court, but not persuasive to it either, that an unlimited “ministerial exception” would permit employers to hire undocumented persons without following the employer sanctions provisions of the immigration laws. 

Such a limitation on the ministerial exception would set up a “conflict between the law and the Christian religious tradition," according to Rev. Mousin, because Christianity by default favors the “immigrant, the sojourner, the stranger, the other.”

Laws that prohibit hiring of the foreigner or one not designated by the national government as authorized to work under the Immigration Reform and Control Act of 1986 (IRCA) stand in stark contrast to such biblical understandings of ourselves and the immigrant, and in effect, deny the faith organization’s ability to discern whether the one it seeks to call for leadership is that divine messenger.

The court’s decision in the Hosanna-Tabor case, then, means that “the ministerial exception might allow organizations to hire undocumented persons in ministerial positions.”  This is the “wonderful opportunity” with which Rev. Mousin begins. 

Imagine university ministers who have fled their homelands seeking safety and peace in the United States teaching the Joseph story of freedom from slavery to leadership positions. Imagine undocumented persons who have traveled from Central America crossing deserts and suffering hardship leading a Bible study on the Exodus for university students. Imagine a university minister preaching the story of Joseph, Mary and Jesus fleeing the sovereign’s violence after Jesus’ birth, when that very minister, forced into exile by state-sponsored violence, sought liberty and shelter within the United States.

Well, I am perfectly happy to imagine all that sort of thing, though I also wonder: surely some goodly percent of these suffering people should also qualify for political asylum, no? Without any reference at all to the “ministerial exception.”

But Rev. Mousin asks “Why not seize this opportunity to seek ways to ameliorate the process [of legal immigration]  within the legal parameters?”

Again, ok, go for it.

My question, though, is this: why not seek to ameliorate the working conditions of adjuncts and contingents at religious colleges and universities, something that doesn’t require a Supreme Court decision, something that’s certainly perfectly legal, and something that comports very nicely with this and that “biblical message,” and certainly with Catholic Social Teaching.

And this is where, I think, the Court’s language in Hosanna-Tabor may be very helpful to the adjunct-contingent cause.  And I am encouraged to think so even more, by the way, by the tone of a David Skeel column in the Wall Street Journal, wherein he seems terribly upset by what he styles the adoption of the “stingiest plausible interpretation of the Constitution's protections for religion.”

What can he mean? I think I know, and it gladdens my heart.

The Supreme Court knows the difference between “religious” and “secular.”

Some of them may pretend, in legal cases to come, that they don’t, but certainly in the Hosanna-Tabor case, the Supreme Court appeared to have no difficulty whatsoever making a distinction between the two spheres.

Recall, for instance, Justice Roberts firm view that “a valid and neutral law of general applicability” can trump a “religious” claim. In fact, I was sorry to see the Native American Church dealt with in this specific matter, just as I was sorry to read that “Called Minister” Perich could not find a solution to her specific personal difficulties in a “legal” manner.

On the other hand, I mean, hey-put that in your pipe and smoke it: the whole court can tell the difference between a valid and neutral law of general applicability, and one that imposes an unconstitutional intrusion into “religious” matters.

That sort of thing should be good for adjuncts and contingents, I think, who can now point to Justice Robert’s view that “a purely secular teacher would not qualify for the "ministerial" exception,” and then ask this: well, should purely secular faculty be prevented from seeking better working conditions on the basis of unspecified “religious” exemptions claimed by the employer?

Perhaps Justice Thomas’ comment can illuminate this point. Remember he seemed anxious on the point of who is and who is not a “minister,” writing that the question in his mind “is itself religious in nature.” By his argument, the evidence showed that “Hosanna-Tabor sincerely considered Perich a minister,” and that “ would be sufficient for me to conclude that Perich's suit is properly barred by the ministerial exception.”

So, what, exactly, else, would be sufficient for Justice Thomas here? To have a religious group claim to sincerely believe that the janitor is a minister? That an adjunct professor of political science is a minister?

But even Justice Thomas seems to understand that it’s absolutely crucial, in a “religious” case, to make some judgment about what is and what isn’t “religious.”

He doesn’t want to, but he has to, and he even writes that “The Court thoroughly sets forth the facts that lead to its conclusion that Cheryl Perich was one of Hosanna-Tabor's ministers.”

And the Allito/Kagan opinion? It basically gives us a perfectly serviceable approach to “civil” definitions in religious cases, holding that the ministerial exception must apply to any employee who “conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

Rejoice, overwhelmingly non-ministerial adjunct and contingent faculty at “religious” colleges and universities! The Alito/Kagan language pretty clearly defines a category of which you are certainly not a member:

a general category of "employees" whose functions are essential to the independence of practically all religious  . .  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.

This court, at least in this decision, is not having any trouble figuring out the difficulty between religious and secular functions. This is in spite of Justice Roberts' distaste for a ‘rigid formula” and in spite of Justice Thomas’s fear of a “civil definition.”

They can figure it out. And they have. 

The Court's decisions in future, I hope, will 1) allow employees of religious colleges and universities to do whatever they can legally do by way of demanding improved working conditions while 2) doing nothing at all, unless you need peyote in your sacraments, to interfere with religious practice—including the implementation of your own clearly stated religious obligations to repair damage caused by unjust and inequitable practices.

* Rev. Craig B. Mousin, is University Ombudsperson at the nation’s largest Catholic University, DePaul University (since 2001), and is also, interestingly, an ordained minister of the United Church of Christ.