In a unanimous ruling, the U.S. Supreme Court adopted the “ministerial exception” developed in the lower courts and held that the First Amendment flatly prohibits the application of discrimination laws to the employment of “ministers” by religious institutions.  The Court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C., though fact-specific, affords broad discretion to churches and other religious entities to hire and fire employees engaged in preaching or teaching their faith, without fear of a discrimination suit.  

Writing the opinion for the Court, Chief Justice Roberts traced the origins of religious liberty reflected in the First Amendment—from Magna Carta to the founders’ (negative) experiences with established churches—and the Court’s traditionally hands-off approach to religious-governance disputes.  Rooted in this legal history and the constitutional text itself, which Chief Justice Roberts described as giving “special solicitude to the rights of religious organizations,” the Court held that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so,” violates both the Free Exercise and Establishment Clauses of the First Amendment.

The “ministerial exception” recognized by the Court is not limited to religious discrimination but includes all manner of otherwise-regulated distinctions among employees—e.g., sex, disability, marital status.  Moreover, in applying the exception in Hosanna-Tabor to preclude a teacher at a faith-based primary school from suing for retaliation under the Americans with Disabilities Act, the Court held that the exception should not be limited to the “head of a religious congregation.”  The Court refused to “adopt a rigid formula for deciding when an employee qualifies as a minister” subject to the exception, but stressed that the plaintiff was a “commissioned minister,” and was held out by the school and herself as having that special vocation.  Although the plaintiff chiefly taught secular subjects and spent only part of her day teaching religion or leading students in prayer, the “ministerial exception” applied because her “job duties reflected a role in conveying the Church’s message and carrying out its mission.”  

Chief Justice Roberts closed by emphasizing that the Court’s adoption of the “ministerial exception” is limited to employment discrimination laws and that its application in Hosanna-Tabor was limited to the facts before the Court.  The Justices expressly reserved their views on whether or not the exception would or should apply to tortious acts, breach of contract, or other legal disputes involving religious employers and their employees.

Hosanna-Tabor offers significant leeway to faith-based employers in making employment decisions, and the defense bar would be wise to educate affected clients on their rights in this regard. That said, the fact-specific nature of the Court’s action warrants caution and a clear understanding of the requirements and duties of the job or jobs at issue, as well as the employer’s nature and purpose, before any such client should be advised to rely on the defense. 
James A. Sonne, Horvitz & Levy

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