The Breadth of the Ministerial Exception and Ecclesiastical Deference: A State Supreme Court Case Highlights Questions Left Open by Last Year’s U.S. Supreme Court Hosanna-Tabor Ruling
In my column today, I analyze an interesting case that a state Supreme Court will soon decide that illustrates, and has implications for, important national questions concerning the Establishment and Free Exercise clauses of the First Amendment. In particular, the Kentucky case, Kant v. Lexington Theological Seminary, demonstrates the need for the U.S. Supreme Court to answer many of the key questions it left open in last year’s blockbuster ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, where the Court recognized a so-called “ministerial exception” enjoyed by religious institutions in employment discrimination suits. I begin by providing background on the 2012 Hosanna-Tabor ruling, and then explain how the Kentucky courts thus far have understood and extended that ruling in the Kant dispute.
The Supreme Court’s Recognition of a “Ministerial Exception” to Employment Discrimination Law
The plaintiff in the Hosanna-Tabor case, Cheryl Perich, was a commissioned minister in the Lutheran Church-Missouri Synod who worked as a faculty member at a small church-operated K-8 parochial school in Michigan, where she taught, at various times, among other things, math, language arts, social science, gym, art and music. She also taught a religion class four days a week; led students in daily devotional exercises and prayers; and led a school-wide chapel service a few times a year. She later developed narcolepsy and informed her employer about her condition and, ultimately, her intention to assert her legal rights under the disability laws. She was ultimately fired, and brought a charge with the federal Equal Employment Opportunity Commission (EEOC) against Hosanna-Tabor, claiming that she had been terminated in violation of the Americans with Disabilities Act (ADA). The EEOC then filed suit against Hosanna-Tabor, alleging that it had unlawfully fired Ms. Perich in retaliation for her assertion of her ADA rights.
The U.S. Supreme Court ruled in favor of the school, holding that the Establishment and Free Exercise Clauses of the First Amendment bar employment discrimination suits brought on behalf of ministers against their (employer) churches, and that Ms. Perich fit the definition of “minister” for these purposes. The Court began with a brief history of the Constitution’s religion clauses that highlighted the need for government not to interfere with important internal church processes. It then discussed cases in which the Court had, under the Constitution, deferred to church tribunals that were established within a church’s hierarchy to resolve disputes over the proper use of church property or assets when disagreements between various individuals or factions within the church arose. The resolution of these “quintessentially religious controversies,” the Court reminded, is “strictly a matter of ecclesiastical government” that is committed to “the highest ecclesiastical tribunals” and not something for the courts to undertake. Relying on these principles and on the experience of lower courts in this realm, the Justices unanimously (albeit in three separate opinions) concluded that the First Amendment compels a “ministerial exception” to employment antidiscrimination laws that precludes the application of these laws to claims concerning the employment relationship between religious institutions and their ministers.
The Kant Lawsuit
The Kentucky case now pending was filed by Laurence Kant, who was formerly employed as a tenured faculty member at the Lexington Theological Seminary (LTS). LTS is affiliated with the Disciples of Christ Christian denomination. The dominant (but perhaps not sole) purpose of LTS, reiterated at the beginning of its Faculty Handbook, “is to prepare faithful leaders for the church of Jesus Christ and, thus, to strengthen the church’s participation in God’s mission for the world.” All of the Seminary’s degree programs are faith-based, and are designed to prepare graduates for Christian ministry.
Mr. Kant is not a Christian minister; he is not even a Christian. He is of the Jewish faith and during all relevant times he maintained his Jewish religious beliefs. While at LTS, he taught a range of courses focusing on, among other areas, biblical studies, Jewish studies, Jewish-Christian studies, world religions, biblical languages, and religion and culture. In 2006, he was awarded tenure. The LTS Faculty Handbook (mentioned above) described tenure in the following terms: “Tenure . . . means appointment to serve until retirement, resignation or dismissal for adequate cause. . . [T]he only grounds for dismissal or a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in this Handbook, or conduct detrimental to the Seminary. . . Along with tenure, however, go the responsibilities specified in the Handbook as well as an added expectation of leadership in the faculty.”
In 2009, after the nation’s financial crisis hit LTS’s endowment hard, LTS declared a financial emergency and announced its intention to take dramatic steps, including the elimination of the tenure of its faculty along with other cost-cutting measures, designed to keep the institution solvent. Pursuant to this plan, LTS terminated Kant’s employment in 2009.
Mr. Kant then sued in state court, alleging breach of the contractual promises in the Faculty Handbook that his employment could be terminated only for specified reasons, none of which was present here. By a 2-1 vote, the Kentucky Court of Appeals (and the case is now pending in the Kentucky Supreme Court, which accepted Mr. Kant’s request for review) rejected Kant’s lawsuit on two separate but related grounds. First, the court held that the case “involved an ecclesiastical matter” that foreclosed the exercise of jurisdiction by a civil court. Second, the court ruled that LTS enjoyed immunity from the breach of contract claims under the ministerial exception doctrine recognized in Hosanna-Tabor. (Although one of the two members of the majority wrote a separate concurrence some of which could be read as relying only on the ministerial exception, he did observe that the main opinion “becomes the majority with my concurrence” and also commented in his opinion that LTS’s restructuring “is an ecclesiastical matter over which no civil court has subject matter jurisdiction.” Thus, the majority opinion is best understood as having relied on both grounds.)
In both respects, the Kentucky court’s ruling goes significantly beyond the Supreme Court’s ruling in Hosanna-Tabor, and highlights the need for the Supreme Court to provide additional guidance in this area.
The “Ecclesiastical Matters” Rule Barring Judicial Resolution
Let us first consider the Kentucky court’s decision that it could not weigh in on Kant’s contract claims because to do so would impermissibly draw it into resolving ecclesiastical matters. The majority opinion says “Kant’s claims . . . cannot be decided without interpreting the Faculty Handbook to determine whether it allows for restructuring of LTS under a financial emergency and for eliminating tenured faculty under those circumstances. Indeed, an inquiry into the rationale for LTS’s decision making as to who will teach its students—all of whom attend there with a desire to become pastors or ministers—would be an inquiry into an ecclesiastical matter by this Court.”
This seems like a non sequitur to me. The first sentence is undeniably correct; Kant’s breach of contract claims require interpreting the promises—and the limits on those promises—made in the Faculty Handbook; the handbook is the contract on which Mr. Kant relies. But the second sentence would not seem to follow; deciding whether the Faculty Handbook contract implicitly contains a right of LTS to eliminate tenure in times of financial emergency does not involve religious doctrinal or ecclesiastical matters in any way. If LTS had fired Kant because it said that he had engaged in religiously immoral behavior within the meaning of the Faculty Handbook, deciding whether certain deeds were morally delinquent (within the context of the church community) might draw courts into ecclesiastical matters. But deciding whether a contract has an exception for financial emergency does not.
To see this, imagine that Kant had taught physical education, rather than religious studies. And imagine that the Faculty Handbook promised that tenured members of the faculty would be entitled to use the Seminary’s gymnasium after school hours for free. If the Seminary later tried to begin charging tenured faculty for use of the gym (because of financial exigencies), would anyone argue that a breach of contract claim relying on the Handbook would implicate ecclesiastical matters?
Or imagine a contract that was entered into not with an LTS employee, but rather with an outside provider of services. Let us suppose LTS hires a roofer to put on a new roof. The contract states: “In order to promote the use of the LTS facility as a continuing Seminary, Roofer X shall put on a roof suitable for educational structures for which LTS will pay him $Y.” Now imagine further that the roofer puts on a new roof, and LTS, because it is at that time in some financial difficulty, refuses to pay the roofer (so that it will have money to buy new books for its library instead). If the roofer then sues on the contract, we could not say that interpreting the contract and inquiring into whether the reason LTS has not paid—the desire to spend the money on other religious-instruction-related programs—is permitted under the contract as an excuse for non-payment draws a court into ecclesiastical matters, even though such a contract claim would involve an inquiry into “the rationale for LTS’ decisionmaking” as to how to devote its resources. Certainly the ecclesiastical-matters barrier to adjudication cannot mean that religious institutions can never be sued for breach of contract, and just because the contract with Kant involves faculty personnel does not mean that interpreting it involves ecclesiastical matters. To the extent that the Supreme Court’s invocation of ecclesiastical deference in Hosanna-Tabor and other cases has been misunderstood, clarification by the high Court will be helpful.
The “Ministerial Exception”
This point leads us nicely into the ministerial exception topic, because it may well be that what troubled the Kentucky Court of Appeals most was not the ecclesiastical nature of the contract, but rather the ministerial nature of the party suing—Kant. And there are aspects of this case that make it a more attractive candidate for application of the ministerial exception than was Hosanna-Tabor. In particular, the fact that Kant taught at a wholly sectarian Seminary—as contrasted with the parochial school in Hosanna-Tabor, a place designed not for religious ordination but rather for a general, if religiously-based, education—leans in LTS’s favor.
Yet there are a number of other differences between the two cases that cut against the application of the ministerial exception in Kant.
First, Hosanna-Tabor involved an exception to anti-discrimination laws. The Court there explicitly “express[ed] no view on whether the exception bars other types of suits, including . . . breach of contract” [claims]. There will be enough time to address the applicability of the exception to other circumstances if and when they arise.” The Kant court acknowledged this caveat in Hosanna-Tabor, but nonetheless—and without any analysis or explanation other than the mention of the fact that some lower federal courts had applied the ministerial exception to contract claims—simply extends the exception. Maybe it makes sense to apply the ministerial exception outside of the context of anti-discrimination laws, but certainly some discussion of why this is so—and how far the exception should reach—is in order.
Second, and very important, the Kant court found that Mr. Kant fell within the ministerial exception because of the religious-instruction function that he performed within LTS—”teaching students who desired to become involved in Christian ministry.” As the court noted, “[b]ecause Kant’s primary duties involved teaching religious-themed courses at a seminary,” he is covered by the exception. This seems far too quick. For starters, as the dissent points out, there is a difference between teaching religion (when one is trying to convince students to accept certain religious beliefs, or at least reinforce those beliefs), and teaching about religion, which is an academic exercise in ideas, not an attempt to inculcate particular spiritual beliefs. And on the record in this case, Mr. Kant may very well have been doing the latter.
More generally, and perhaps more fundamentally, there is a divergence between the Kant court’s approach and that of the Supreme Court majority in Hosanna-Tabor on the question of how we decide whether someone is a minister for these purposes. In Hosanna-Tabor, the Court eschewed any rigid formula, but it did stress not just the function of a particular employee, but also the status and title that that employee enjoyed and used. Indeed, in Hosanna-Tabor, the Court identified four reasons why Ms. Perich should be considered a minister: (1) the “formal title” of minister was given to her by the church when she was commissioned; (2) as a prerequisite to that commission, she undertook religious training and education designed to demonstrate her faith and her ability to minister; (3) she used the title herself and held herself out as a minister and a believer; and (4) she undertook certain “functions . . . performed for the Church.” Three of the four factors (the first three) focus on title and status, rather than function. Indeed, the Court in Hosanna-Tabor chided the United States Court of Appeals for the Sixth Circuit (the lower court in the case) for failing “to see any relevance in the fact that Perich was a commissioned minister.” As the Court observed, “the fact that an employee has been ordained or commissioned as a minister is surely relevant, as is the fact that significant religious training and a recognized religious mission underlie the description of an employee’s position.” And yet the Kant court all but ignored the fact that Mr. Kant is not—and could not be, since he is openly Jewish—considered a minister within the Disciples of Christ church. He professed no belief in, and was not commissioned under, any Christian faith. Neither he, nor the church, would consider him a minister for any purpose other than a legal immunity from suit.
It is true that Justice Alito (joined by Justice Kagan) wrote separately in Hosanna-Tabor to make clear their views that function—and not just titles or status—should matter in deciding who is a minister. But they seemed to be writing particularly about religions that don’t use commissions or ordinations or titles of ministers; thus, their opinion needn’t be read to say that, for religions that do use such titles, the status of a particular employee should not be an important factor. Moreover, the fact that Justices Alito and Kagan felt they had to write separately serves to underscore how important status/title was in the analysis of the majority opinion, which six Justices signed onto without elaboration or reservation. In any event, whether one feels the Kant ruling is an overly expansive application of the ministerial exception or not, the larger point is that before too long, the Supreme Court is going to need to step back in and clarify precisely how broadly, and to whom, the exception applies.