Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC: The Supreme Court Oral Argument, and What It Revealed

Yesterday, the Supreme Court heard oral argument in Hosanna-Tabor Evangelical Lutheran Church School v. EEOC.  The arguments were a muddle, but fortunately, the Justices’ views were not quite as opaque, as I will explain.

The Issue: The Scope of the Ministerial Exception to Laws Barring Discrimination in Hiring

This case, which I also discussed in an earlier column, brings the so-called “ministerial exception” doctrine to the Supreme Court for the first time ever.  This First Amendment theory—originally articulated in the lower courts over 50 years ago—stands for the proposition that religious organizations have the right to determine the criteria for their clergy.

The best example of a case where the exception applies—and an example that popped up again and again during the argument—is the Roman Catholic Church’s exclusion of women from clergy positions.  At oral argument in Hosanna-Tabor, the Justices and the attorneys on both sides seemed to all agree that the federal anti-discrimination laws may not be used to strong-arm the Catholic Church into accepting women as priests.  But Hosanna-Tabor itself involved a much trickier scenario.

The Facts of the Case Before the Court

The Hosanna-Tabor case involves a teacher, Cheryl Perich, whose primary duties involved the teaching of secular subjects, but also some religious teaching.  She was originally hired as a teacher without being what the Church calls a “called” teacher. But later, Perich took courses that qualified her to become a “called” teacher.  Interestingly, her duties were identical before and after being “called.”

However, Perich began to suffer from narcolepsy and took a leave for medical reasons. And when she came back, mere months later, the church told her that her job was no longer available

Perich then threatened to sue under the Americans with Disabilities Act (ADA), alleging that the church should have worked with her to accommodate her narcolepsy, so that she could still teach.  However, the church told her that going to the courts to resolve a dispute between members meant that she was no longer welcome as an employee, because they held a belief that members should resolve their disputes through peaceful means.

More specifically, Perich was told by the church that her error was to have failed to avail herself of an internal procedure, rather than the courts.  Significantly, though, the record does not indicate how Perich would ever have known that she had to follow that procedure—as Justice Breyer forcefully noted at oral argument.  Justice Breyer’s point is pivotal, because if Perich did not know about a mandatory procedure for internal dispute resolution, then she also did not know that by working for the church, she was expected to forego her rights under the anti-discrimination laws.  The Church seems to have been playing a game of “gotcha.”  According to the record, they did not tell Perich about the court-avoidance requirements until after she mentioned her intent to invoke the ADA.

When asked by Justice Ginsburg if the church handbook contained the information, the church’s representative, Professor Douglas Laycock, dodged the question, saying that most of the handbook was not in evidence.  But he never pointed to any aspect of the record showing that Perich would have known that this was a belief before she invoked federal law and they responded.

A Key Question: Is Perich A “Minister”?

A primary issue in the case is this: Is Cheryl Perich a “minister”?

If she is not a “minister,” then she has the full protection of the ADA, Title VII, and every other federal, state, and local anti-discrimination law, despite the fact that her employer is religious.

But if she is a “minister,” then the Court must decide, first, if there is, indeed, a ministerial exception, and second—if there is indeed such an exception—what is its scope.

In a Supreme Court case, the most important argument that any litigant can offer is a workable test.  Here, the test would resolve who is, and is not, a minister.  Yet no compelling test has been put forward by either side in the Hosanna-Tabor case, so it is now up to the Justices to fashion their own.

Professor Laycock’s Proposed Test: Far Too Broad to Be Plausible

Professor Douglas Laycock, who argued for the Church, advocated a categorical, jurisdictional rule: A teacher who teaches any religion course(s) is a “minister,” and the First Amendment forbids the courts from considering any aspect of Perich’s case.  He said this repeatedly upon insistent questioning by the Justices.

But Laycock simply cannot be right:  To say that anyone teaching religion is a minister is patently absurd.  Consider, for instance, the many Religion Department professors in state universities.  Is a professor who teaches numerous world religions suddenly a minister of each (or any one) of them?

Laycock should have been better prepared for this question; it was the only one that was absolutely certain to be asked.  But even when the question was repeated more than once, he still did not have a workable definition of “minister” for his “ministerial exception” theory.

Moreover, it’s hard to overstate how tremendously radical Laycock’s theory is.  He advocates bypassing the standard employment-discrimination framework entirely—so that courts would not even engage in the standard statutory anti-discrimination analysis, which asks whether the adverse employment action was invidious, and whether the reasons proffered for the action were just a pretext for invidious discrimination.

What would happen if Laycock’s approach were embraced by the Court?  Let’s imagine that a church—that is, a church that does not include race discrimination among its beliefs, as the Catholic Church includes sex discrimination among its beliefs—fires a minister based on race.  In that instance, under Laycock’s test, the First Amendment’s Religion Clauses would still relieve the church of the obligation to comply with federal anti-discrimination law.  Indeed, a court could not even take jurisdiction over invidious racial discrimination by a religious organization that does not have any racist belief.

Based on the oral argument, it would appear that Justices Scalia and Alito may well be in Laycock’s camp.  Moreover, while Justice Thomas famously does not speak at oral argument, his prior opinions and votes indicate that he would likely follow suit.

For a majority of the Justices, though, it seemed to be quite apparent that the categorical rule Laycock put forward was a non-starter.  Justice Breyer suggested that the parties should proceed through the statutory requirements in the courts before the court reaches the constitutional issue, which follows the Court’s standard constitutional-question-avoidance doctrine.  In addition, Justices Kennedy, Ginsburg, Sotomayor, and Kagan seemed genuinely troubled by a rule that would create categorical immunity for what might very well be, in many instances, blatantly discriminatory purposes.

A big part of this case was about whether churches can have immunity if they punish whistleblowers, or, in other words, whether religious employers may retaliate against employees who report discrimination to the appropriate secular authorities (such as the EEOC or its state counterparts) and/or the courts.  After all, Perich was fired because she invoked her rights under the ADA.  That is a classic retaliation fact pattern.

Early in the argument, Justice Sotomayor insisted that the Court could recognize no First Amendment right in cases involving retaliation for reporting the abuse of women and/or children.  Here, she was apparently referring to the recent cases involving the Fundamentalist Church of Jesus Christ of Latter-Day Saints.

Laycock was more than willing to agree to an exception for sex abuse or the protection of children, but he did not have an explanation as to how those cases, on his theory, could be decided by the courts; he merely reiterated that no court should take jurisdiction in this case, and that the protection of children is paramount.

An Interesting Analogy:  If “Religious” Beliefs Can Be Challenged in Court as Insincere, Why Can’t “Religious” Employment Decisions Be Challenged as Pretexts?

I found most curious the failure of any of the lawyers or Justices to analogize the ministerial exception cases to the “sincerity” cases.  It seemed to be a general assumption, at oral argument, that the courts simply may not consider religious doctrine.  But in fact—while courts may not decide or determine religious doctrine—they can certainly consider evidence as to whether someone, or some institution, sincerely holds a given belief.

Indeed free exercise cases routinely involve the question whether the professed believer is sincere.  The prisoner who demands kosher food after seeing that it looks fresher than his usual meals cannot simply claim a sudden conversion and automatically win; the prison can argue that his real purpose is secular (seeking fresher food), not religious.

Pretext analysis is no different.  The courts don’t have to determine the truth or centrality of a religious organization’s asserted belief to ascertain whether it is a pretext.  They only have to determine if the belief was truly the basis for the employment decision—or if the belief was concocted in an attempt to, for instance, cover up retaliation, favor a co-religionist, or avoid expensive federal litigation.

As Justice Breyer pointed out at oral argument, there is reason enough to question whether Hosanna-Tabor’s treatment of Perich was truly based on a religious belief, or just a gambit to punish her for being disabled and/or invoking her rights under the ADA.

Perhaps some will argue that the prison cases are inapposite, even suggesting that it is absurd to parallel respected religious figures with prisoners, but sincerity analysis is standard in free exercise cases.  With all due respect, religious organizations and their leaders run the full spectrum of human infallibility.  The First Amendment does not require courts to pretend that religious organizations and believers never err.  That would be both nonsensical and counterfactual.

The constitutional answer here is simple:  If a religious institution’s employment decisions—even with respect to certain ministers—are not grounded in religious belief, then despite the First Amendment’s Religion Clauses, the anti-discrimination laws still apply.

For instance, a church that tries to wrap itself in the First Amendment when its seminarian sues for sexual harassment by the Abbott should have no constitutional argument to make (unless, somehow, sexual harassment is part of its belief system—an argument that, to my knowledge, no religious institution has yet had the gall to make in open court).  That should be plain enough.

The Court Seems Primed to Strike a Reasonable Balance When It Comes to the Ministerial Exception

How might the High Court resolve this case?  I think the Justices in the majority will appropriately balance the government’s interest in anti-discrimination and retaliation against the First Amendment right of the religious organization to control the criteria for its ministers.

Neither Justice Scalia nor Justice Alito appears to have any patience with such an approach.  But it would appear that the rest of the Court is gravitating toward just such a sensible middle ground.

The unavoidable question, even if the Court follows this approach, is what position then counts as that of “minister.”  That question may be harder than it looks at first glance:  Some religious organizations say that no one is a member of the clergy, or that everyone is.

Thus, there will have to be line-drawing, as there always is in constitutional law.  The Sixth Circuit held—quite directly and simply—that Perich was not a minister because her duties were primarily secular.  No other argument presented at the Supreme Court made more sense.

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