Courts have long recognized the First Amendment right of religious organizations to control their own internal affairs, including matters of church governance and doctrine. To protect these First Amendment rights, the federal circuit courts have created a judge-made exception, the “ministerial exception,” which bars most lawsuits between a religious organization and its leaders over employment matters. The federal circuit courts agree that the ministerial exception reaches beyond “ministers” to include other employees who play a significant role in advancing their church's mission, but the circuits disagree about the precise scope of the ministerial exception and how to make such determinations. The U.S. Supreme Court has never had a ministerial exception case.

The Supreme Court recently granted certiorari in a case that may resolve those disagreements about the extent of the ministerial exception, Equal Employment Opportunity Commission vs. Hosanna-Tabor Evangelical Lutheran Church and School. The case arises from an employment discrimination lawsuit brought against a church-owned school by a former teacher. The teacher was in a “called” position at the school, meaning that she had completed certain theological coursework, was a commissioned minister, and was voted into position by the church following a recommendation by the school’s Board of Education, Board of Elders, and Board of Directors. Nonetheless, her teaching responsibilities did not differ in a significant manner from other teachers at the school who were “lay” or “contract” teachers. She taught a full secular curriculum in addition to teaching a religion class nearly every day, attending weekly chapel and occasionally speaking in chapel. In total, she devoted approximately forty-five minutes per day to religious activities out of a seven hour school day. The teacher became ill prior to the start of the 2004-05 school year and took a disability-related leave of absence. Upon her clearance to return to work mid-year, conflict ensued between the school and the teacher, which ultimately led to a vote by the church to rescind the teacher’s call. The teacher filed a charge of discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC), alleging that the church had discriminated and retaliated against her in violation of the Americans with Disabilities Act. The EEOC then filed a complaint against the church in the United States District Court for the Eastern District of Michigan.

Based on the ministerial exception, the district court dismissed the suit, finding that the lawsuit would infringe on the church’s First Amendment right to select its religious leaders. The Sixth Circuit reversed, finding that the teacher did not fall under the ministerial exception because her “primary duties” were secular in nature. In the fall of 2011, the Supreme Court will consider the issue of whether the ministerial exception applies to the teacher. The Supreme Court’s decision will likely impact how other types of employees of religious organizations are treated for purposes of the ministerial exception and employment laws. We will keep you up-to-date about this important case.