After a quiet stretch in the wake of Employment Division v. Smith (1990), cases about the Free Exercise Clause of the First Amendment are proliferating at the U.S. Supreme Court. Trinity Lutheran Church v. Comer and Masterpiece Cakeshop v. Colorado Civil Rights Commission recently signaled the potential for large changes on the horizon. The school funding dispute in Espinoza v. Montana Dept. of Revenue, a follow on to Trinity Lutheran, is under advisement at the Court, and the recent cert grant in Fulton v. City of Philadelphia sets the stage for what may be next Term’s Free Exercise blockbuster.
Far less noticed have been the companion cases from the Ninth Circuit on the scope of the ministerial exception, a doctrine embraced by a unanimous Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC (2012). The doctrine bars employees in positions that fall within the ministerial exception from asserting against their religious employers almost all civil rights claims, along with a variety of tort and contract claims. In Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the Ninth Circuit pinched the ministerial exception so as to exclude from the exception the position of elementary school teacher—with significant responsibilities to teach the faith and lead worship—in a Catholic school. Unlike the teacher involved in Hosanna-Tabor, Ms. Morrissey-Berru and Ms. Biel lacked a ministerial title, and the Ninth Circuit made that fact dispositive of the outcome in both cases. The justices had been scheduled to hear a consolidated argument in those cases on April 1, but the argument has now been postponed.
If the stakes in this Term’s cases were no greater than the legal consequence of a ministerial title, the cultural quiet around them would be understandable. But the constitutional theory that drove the unanimous result in Hosanna-Tabor is ambiguous, resting on an insufficiently separated mix of Establishment Clause and Free Exercise Clause considerations. Therein lies the potential for great mischief.
We have long argued that the ministerial exception rests primarily on the Establishment Clause and is strictly limited to employment decisions about who leads or controls a faith community, or who transmits a faith. Decisions about who fills these positions present exclusively ecclesiastical questions that the government is not competent to answer. (We have written extensively about these questions in Chapters 1 and 2 of our book, Secular Government, Religious People (Eerdmans, 2014).) This follows from a long line of decisions about church property or governance, in which the courts have ruled that only religious communities, and not the state, may answer such questions. The unanimity of the Court—extremely rare in Religion Clause cases—in Hosanna-Tabor can be explained entirely and only on this basis. This is a theory of non-Establishment, which explains why Hosanna-Tabor did not demand (or engage in) any reevaluation of Employment Division v. Smith.
Seen in the light of this Establishment Clause principle, the judicial analysis of whether any particular employment position falls under the ministerial exception turns entirely on the functions of the employee in religious governance, worship, or transmission of the faith. These are tasks for which government may neither prescribe nor forbid employment criteria. If government may not determine employment criteria, then courts may not decide whether an employee meets those criteria. Hosanna-Tabor teaches that employees who have substantial responsibilities for these ecclesiastical tasks fall under the exception. Moreover, courts are fully competent to measure the extent of these responsibilities for any particular employee, just as courts are competent to decide when the government’s involvement in a religious activity violates the Establishment Clause.
The Ninth Circuit was wrong to make the presence or absence of a ministerial title dispositive of the claim to the exception. Both Morrissey-Berru and Biel engaged in substantial and explicit religious activity—in the form of daily religious instruction and worship leading—with their students. Indeed, both of them did more teaching of religion and leading of worship than Cheryl Perich, the teacher involved in Hosanna-Tabor. Of course, there will be cases in which line drawing is necessary. If a lay teacher in a religious school leads a simple morning prayer, while teaching secular subjects full time, his duties would fall short of the ministerial threshold. Whether an employee engages in “substantial faith transmission” requires a quantitative as well as qualitative judicial inquiry.
This account of Hosanna-Tabor has not attracted the petitioners (the religious schools) or their amici. Rather, the Free Exercise explanation lurking in Hosanna-Tabor has spawned a different and far more aggressive narrative in this Term’s cases. The forces looking to enlarge the constitutional rights of religious institutions see these cases as a promising opportunity to expand the Free Exercise Clause in broad and novel ways. In addition to the brief from the Becket Fund on behalf of the petitioner schools, over 50 amicus briefs have been filed in support of the petitioners, far more than on the opposing side. These briefs have emerged from religious communities and well-known scholars. Many of the presentations on the petitioners’ side assert that the ministerial exception merely illustrates a much more sweeping doctrine of church autonomy, resting primarily on the Free Exercise Clause.
The so-called doctrine of church autonomy demands that courts broadly protect the “internal affairs” of religious bodies from regulation. In particular, amici argue that the ministerial exception includes employees whose tasks are “important” to the religious mission of the organizations. As the respondents (the employees) and several amici point out, this is an approach without limit. Religious missions often encompass broad and admirable devotion to charitable work. If all socially good work by religious entities can be swept into the concept of religious function, virtually all of their employees—e.g., hospital staff, social workers, adoption and foster care coordinators, to mention but a few—will be covered by the ministerial exception.
The petitioners and their supporters expand the possibilities of this notion of religious function by asserting that the law requires courts to defer to employer designations of which functions qualify as “religious.” This idea of deference to self-designation of a legally cognizable burden on religious liberty is an unfortunate outgrowth of the RFRA-based decision in Burwell v. Hobby Lobby Stores, Inc. There, Justice Alito piggy-backed on a poorly explained Free Exercise precedent to argue that courts may not second guess a religious adherent’s claim that a legal obligation burdened his religious exercise. When that notion of self-declaration gets extended to religious entities, the entirety of their institutional practice can fall under a broad theory of church autonomy as religious liberty. For example, if a religious employer expects every employee to “model the faith,” the employer might assert that every employee is a minister.
Moreover, in the context of the ministerial exception, that self-declaring move is even more devastating to legal norms than in RFRA cases. Under RFRA, the government can offer the defense that imposition of the relevant norm is necessary to serve compelling interests. But the ministerial exception is a complete shelter from legal norms, not just a presumptive way to avoid them. The state’s interests may not be deployed against the exception. If the exception is narrowly defined in non-Establishment terms, as we contend it should be, the harms it causes are limited. But if the ministerial exception is Free Exercise based, and a vast number of the employees of religious entities are covered by it, the workforce of religious institutions could be cast out entirely from the protection of labor laws and civil rights laws.
No judge or scholar has offered a remotely plausible account of how or why justices who adhere to Employment Division v. Smith would subscribe to such a heavily tilted, Free Exercise based view of the ministerial exception, but that has not inhibited the flow of argument at the Court. The amici for the respondents have done a good job of identifying the dangers of a highly overbroad ministerial exception. But the respondents and their amici have not offered their own theory of Hosanna-Tabor and the unanimity it produced. Instead, they hope to limit it by relying on a “totality of the circumstances” approach which, they believe, would exclude lay teachers at Catholic schools from the ambit of the exception.
It will take a theory, Establishment Clause based, to beat the petitioners’ theory of church autonomy, Free Exercise based, in these cases. Evaluating the Ninth Circuit’s decisions along the precise Establishment Clause lines that explain and animate Hosanna-Tabor will reinforce that decision’s salutary principle of church-state separation. Fitness for ministry, in the sense of significant responsibility for leadership, governance, or transmission of the faith, is an exclusively ecclesiastical matter, outside of the state’s competence. If the Court hews to that theory, it will decide these cases wisely. It may well maintain its unanimity, highly unusual in church-state cases. If, however, a critical mass of justices falls for sweeping claims of a Free Exercise based church autonomy, the Court will divide and head down a constitutionally perilous path of preferring the interests of religious institutions to all competing concerns. Relying on the wrong Clause in these cases would be a mistake of monumental proportions.