Development

 History of the ministerial exception (separation of church and state) is rooted in the First
Amendment—and is at odds with Title VII protections
o Two clauses
o “The Establishment Clause prevents the Government from appointing ministers, and the
Free Exercise Clause prevents it from interfering with the freedom of religious groups to
select their own”
 HT at 184
 Established a distinct separation between government and religion
o Explain why and what the purpose was
 This has had a lasting impact on the law
 Title VII


 In the 70s? the ministerial exception first came before the court
o Brief holding of McClure
 McClure v. Salvation Army, 409 U.S. 896, 93 S. Ct. 132 (1972) cert denied
 McClure was a commissioned officer for the Salvation Army, a church* [citing
Salvation Army v. United States, 138 F. Supp. 914 (S.D. N.Y. 1956);
Bennett v. City of LaGrange, 153 Ga. 428, 112 S.E. 482 (1922); Hull v.
State, 120 Ind. 153, 22 N.E. 117 (1889).
McClure v. Salvation Army, 460 F.2d 553, 556 n.5 (5th Cir. 1972) ], and
alleged that she received lower wages and less benefits compared to that of males
in the same position at 555
 McClure held that applying Title VII provisions [of the Civil Rights Act of 1964
[42 U.S.C. § 2000e, et seq.] to McClure’s ministerial post “would result in an
encroachment by the State into an area of religious freedom which it is
forbidden to enter by the principles of the free exercise clause of the First
Amendment.” McClure v. Salvation Army, 460 F.2d 553, 560 (5th Cir.
1972)
 Freedom of religion important in the US. McClure
 Basing their decision on [1st amend. And crap] the separation of powers, the court
upheld/created/solidified the ministerial exception
o What did this original form do?
o What kinds of cases did it cover?
o How does this align with the First Amendment?

 Since then, courts have unanimously/or close upheld the exception

o “Almost every circuit court has followed McClure and none has rejected its approach”
 #1 p.28—list provided
 HT p.12 n.2

 However, the Supreme Court had never heard a case on this

o The supreme court had never ruled on this issue before now
 HT p.12
 o Just a bunch of Court of Appeals coming to similar decisions
 You can list a few from the courts
 Along came HT
 Go into detail on facts of the case, the analysis, and holding
o Use that website
o The Alio quote I think that churches should be able to pick their own ministers
o Define what a minister is and how that is just a shortcut statement

 How did HT apply the ministerial exception?

o First determined that the organization was religious
o Second created an analysis framework to determine whether the ministerial exception
applies
o Tie in the totality of the circumstances
 Why?
o The ministerial exception was adopted by the Supreme Court because “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 . . . deprives the
church of control over the selection of those who will personify its beliefs.”
 #2 p.12 quoting HT at 706
o
o singular freedom ascribed to religion in the United States is religious institutions' ability to select
"ministers.
o See McClure v. Salvation Army, 460 F.2d 553, 559-60 (5th Cir. 1972); Alicia-Hernandez v.
Catholic Bishop of Chi., 320 F.3d 698, 703 (7th Cir. 2003).
o “every federal court of appeals uniformly accepted the principle that religious institutions possess a
fundamental right, rooted in the First Amendment, to be free from civil litigation by their ministers
arising out of the terms and conditions of ministry*1”
o #1 p.6 (list provided in footnote)
o “independence from secular control or manipulation—in short, power to decide for themselves free
from state interference, matters of church government as well as those of faith and doctrine.”
 Kendroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America
at 116
o Ministers are those that further a religious organization’s mission, etc
o *
o Ministers can have a general meaning and not specific
o HT
o Courts have held that they are not able to adjudicate claims brought by ministers against their
churches arising out of the terms and conditions of ministry
o McClure at 559
o “The Establishment Clause prevents the Government from appointing ministers, and the Free
Exercise Clause prevents it from interfering with the freedom of religious groups to select their own”
o HT at 184
o Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 116 (1952) ("Freedom to select the clergy, where
no improper methods of choice are proven, we think, must now be said to have federal
constitutional protection as a part of the free exercise of religion against state
interference."); Gonzales v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16 (1929)(holding
that determination of whether an individual was fit for chaplaincy was a "purely ecclesiastical"
decision left to church's discretion and generally not reviewable by secular courts).
o The courts first came
o In the 1970’s, the court first came up against a problem
o *
o Balancing the freedom granted to churches with the protection of Title VII
o *
 McClure v. Salvation Army, 409 U.S. 896, 93 S. Ct. 132 (1972) cert denied
 McClure was a commissioned officer for the Salvation Army, a church* [citing
Salvation Army v. United States, 138 F. Supp. 914 (S.D. N.Y. 1956); Bennett
v. City of LaGrange, 153 Ga. 428, 112 S.E. 482 (1922); Hull v. State, 120 Ind.
153, 22 N.E. 117 (1889).
McClure v. Salvation Army, 460 F.2d 553, 556 n.5 (5th Cir. 1972) ], and
alleged that she received lower wages and less benefits compared to that of males in
the same position at 555
 McClure held that applying Title VII provisions [of the Civil Rights Act of 1964 [42
U.S.C. § 2000e, et seq.] to McClure’s ministerial post “would result in an
encroachment by the State into an area of religious freedom which it is
forbidden to enter by the principles of the free exercise clause of the First
Amendment.” McClure v. Salvation Army, 460 F.2d 553, 560 (5th Cir. 1972)
o "Almost every circuit court has followed McClure and none has rejected its approach."
 #1 p.28—list provided
 HT p.12 n.2
o *
o Hosanna-Tabor
o In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 132 S. Ct. 694 (2012), the
Supreme Court ruled for the first time that the First Amendment requires a “ministerial exception”
that allows religious employers to discriminate against their employees without any court review.
Early cases interpreting Hosanna-Tabor suggest that many employees will lose their day in court
because judges have ordained them ministers. Churches are also advocating a broad reading
of Hosanna-Tabor to limit employee rights.
o Lay vs. non-lay
o Hosanna-Tabor involved a disabilities discrimination lawsuit brought by Cheryl Perich, an
elementary school teacher at Hosanna-Tabor Evangelical Lutheran Church and School, a K–8
school in Redford, Michigan. As the 2004–05 school year approached, Perich suddenly and
unexpectedly became ill. When she tried to return to class from disability leave, the school
suggested that she voluntarily resign. Perich refused and was fired after she threatened to talk to
the Equal Employment Opportunities Commission (EEOC) about a disabilities discrimination
lawsuit. She then sued Hosanna-Tabor under the anti-retaliation provisions of the Americans with
Disabilities Act, 42 U.S.C. § 12202(a).
o ABA article
o The Court’s fact-specific ruling left wide open the question of which future plaintiffs will be
dismissed from court because they are “ministers.
o No precise definition of minister
o Lay vs called
o Justice Clarence Thomas concluded that courts should always defer to the churches’ definition of
minister. Id. at 710. Justice Samuel Alito, joined by Justice Elena Kagan, wrote that the word
“minister” “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.”Id. at 712.
o
o --
o The ministerial exception, as a mechanism of Free Exercise protection, acknowledges that the
government's manipulation of the process by which religious bodies assess the qualities of persons
they would hold out as ministers in the community deeply offends the rights of people to free
exercise.
o #1 at 281 citing Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, ___ U.S.
___, ___, 132 S. Ct. 694, 706 (2012); Kedroff v. St. Nicholas Cathedral of Russian
Orthodox Church in N. Am., 344 U.S. 94, 116 (1952).
o Hosanna-Tabor is also limited to discrimination and retaliation suits. Id. at 710.
o In HT, the court culminated the lower court rulings, holding that the First Amendment allows a
religious institution to discriminate against their employees under a “ministerial exception.”
o Whether the Establishment and Free Exercise Clauses of the First Amendment bar an employee
from suing an employer when the employer is a religious group and the employee is one of the
group's ministers? p.8
o
o In this case, the plaintiff, Perich, taught elementary school at Hosanna-Tabor Lutheran Church and
School.
o Designated a commissioned minister (called vs. lay)—pretty much same job description
o Taught a religion class, led students in daily prayer and devotional exercises, took students to
weekly school-wide chapel service, and led the service twice a year
o Discuss in endnotes the hoops she had to jump through to get this designation
o During the school year she developed narcolepsy and went on disability to recover.
o When she wanted to return *it was the middle of the school year and the school had hired a lay
teacher to cover* the school would not let her because they believed she was not ready to return
o The congregation, who controlled the hiring decision, voted not to allow Perich to return and offered
to pay for part of her health insurance premiums if she resigned
o Perich refused to resign and returned to teach.
o The school administrators asked her to leave, but she refused.
o The school administratos told her she would likely be fired.
o Perich threatened to sue and the school terminated her for “insubordination and disruptive behavior”
as well as damaging her “working relationship” with the school
o Perich brought suit against HT through the EEOC claiming that her rights were violated under the
ADA § 12203(a)** note in case p.9 (or is it 2? Case says 3, article says 2) p.9
o Although the district court had agreed with HT, the Sixth Circuit vacated and remanded their decision
holding that Perich did not qualify as a minister under the exception because her duties as a called
teacher were identical to that of a lay teacher—emphasis.
o The school appealed and the Supreme Court granted certiorari*—Dist Ct p.9 held that π was not a
minister because her duties were almost identical to a lay teacher
o Agree with the numerous court of appeal decisions stating “the ministerial exception is not limited to
the head of a religious congregation” the court was reluctant to “adopt a rigid formula to decide when
the ministerial exception applied.
o Insert the four factors and quickly discuss why the court held this
o Insert totality of the circumstances

o HT p.13 at 188–89 “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.”at 188–89
o *court made a distinction of this case and Smith p.13 where Native American Church
memebers were denied employment benefits when they had been fired for injecting peyote.
That was government involvement in “outward physical acts,” not “government interference
with an internal church decision that affects the faith and mission of the church itself.”
o Court held that the ministerial exception applied p.13
o The school HT “held Perich out as a minister” by giving her a ministerial title* (“Minister of
Religion, Commissioned,” and was expected to further the standards and mission of the church.
o Perich had a large amount of religious training p.14
o “Perich held herself out as a minister”by accepting the “formal call to religious service*
 o Claimed a tax exemption that was only available to ministers
o Job duty— Taught a religion class, led students in daily prayer and devotional exercises, took
students to weekly school-wide chapel service, and led the service twice a year
o Discuss in endnotes the hoops she had to jump through to get this designation
o

o Roberts delivered the opinion

o Justice Clarence Thomas concluded that courts should always defer to the churches’ definition of
minister. Id. at 710. Justice Samuel Alito, joined by Justice Elena Kagan, wrote that the word
“minister” “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.”Id. at 712.
o No precise definition of minister given
o 9–0 decision with two concurrences
o In summation, this court held that (1) churches should and do have the absolute final authority to
choose who represents them in a ministerial position, (2) because Perich was determined to be a
minister *based on the factors*, and therefore, (3) the employment discrimination laws do not apply
to her.
o The Court's decision in Hosanna-Tabor is also limited to discrimination and retaliation suits. Id. at 710.
o *The opinion expressly states that it does not comment on the permissibility of an employee's lawsuit for
tortious conduct or breach of contract against his or her religious employer. Id. Emphasizing the limited
nature of its ruling, the Supreme Court relayed that "[t]here will be time enough to address the
applicability of the [ministerial] exception to other circumstances if and when they arise." Id. As a result,
those subsequent circumstances and the cases that decide them will be paramount to understanding
the full parameters of this newly-confirmed constitutional doctrine.

FACTORS:
1. the employee’s formal title;
2. the substance reflected in that title;
3. the individual’s own use of that title; and
4. the important religious functions the individual performed for the religious organization.

o *
o “the constitutional protection of religious teachers is not somehow diminished when they take on
secular functions in addition to their religious ones. What matters is that respondent played an
important role as an instrument of her church’s religious message and as a leader of its worship
activities.”

o The Fourth Circuit traced the exception back to McClure v. Salvation Army, 460 F.2d 553
(CA5 1972), which invoked the Religion Clauses to bar a Title VII sex-discrimination
suit brought by a woman who was described by the court as a Salvation Army "minister,"
id., at 554, although her actual title was "officer." See McClure v. Salvation Army, 323 F.
Supp. 1100, 1101 (ND Ga. 1971).

Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 203, 132
S. Ct. 694, 714 (2012)