Hollis: The ministerial exception: Past and future rulings

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Religious entities enjoy constitutional and statutory exemptions from a variety of employment laws. Recent cases in Indiana and across the country are challenging the applicability and scope of these exemptions. Churches, religious schools and other religious organizations must be cognizant of these litigation challenges, taking steps to minimize liability in the employment law sphere.

The ministerial exception and the statutory Title VII religious exemption provide religious institutions with significant protections against certain types of employment law claims. Both have been the subject of much debate and litigation in recent years. Supporters and opponents argue over their appropriate application in balancing religious freedom versus other civil rights.

The ministerial exception is a constitutional doctrine based in the First Amendment’s religion clauses. It exempts religious institutions from a wide range of employment law claims by employees deemed to be “ministers” (defined more broadly than it may sound). This rule recognizes that to preserve freedom of religion, courts must stay out of employment disputes involving employees holding certain important positions in religious institutions.

Although applied by lower courts for many decades, the ministerial exception was first recognized by a unanimous Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC in 2012. The court held that the First Amendment’s religion clauses precluded a former teacher at a Lutheran school from bringing an employment discrimination claim under the Americans with Disabilities Act against the school because she was a “minister” and thus fell within the scope of the ministerial exception. The court in Hosanna-Tabor declined to establish a rigid formula for determining who qualifies as a minister. Instead, it suggested that a determination of whether a particular employee is a minister could involve consideration of factors. These include whether the religious entity and the employee held out the employee as performing a ministerial role, the employee’s title, religious training, commissioning, and whether the employee’s job duties involved carrying out the entity’s spiritual mission or conveying its faith.

Revisiting the doctrine again eight years later in its 2020 decision in Our Lady of Guadalupe School v. Morrissey-Berru, the court emphasized that there is no rigid test, and that the key point is what an employee does (or is supposed to do) in the job. The court held that the ministerial exception blocked claims under both the ADA and the Age Discrimination in Employment Act brought by teachers at two different Catholic elementary schools. It said that the ministerial exception may apply to an employee who leads a religious organization, conducts worship services, religious ceremonies or rituals, or who serves as a messenger or teacher of its faith. Opinions from the 7th Circuit Court of Appeals — and many others across the country, both before and after these Supreme Court cases — have held that formal ordination is not a requirement for the exception to apply. Courts have applied the ministerial exception in specific fact situations to a broad range of positions, such as teachers at religious schools, choir directors, church organists and a communications director for a Catholic archdiocese. On the other hand, a janitor, bus driver or receptionist with no spiritual duties, for example, would not fall within the exception. Other positions may fall within a gray area, leading to legal battles over whether the doctrine applies to a particular plaintiff.

The statutory Title VII religious exemption is another source providing religious institutions with protections against certain types of employment discrimination claims. Title VII is a federal law that prohibits employment discrimination on the basis of race, color, religion, sex or national origin. However, it also includes an exemption that allows religious institutions to discriminate on the basis of religion when it comes to certain types of employment. Specifically, the Title VII religious exemption allows religious institutions to give employment preference to members of their own religion, and to require employees to adhere to certain religious tenets or practices. Where applicable, the statutory exemption is broader than the ministerial exception in that it is not limited to employees deemed to be ministers and applies to all employees, whether they perform spiritual duties or not, but narrower in that it applies only to Title VII claims.

Both the ministerial exception and the Title VII exemption have become flashpoints in increasing amounts of litigation between LGBTQ advocates and defenders of religious freedom. In a 2020 decision, the Supreme Court held in Bostock v. Clayton County, Georgia that an employer violates Title VII by firing an individual for being homosexual or transgender, which is deemed to be a form of sex discrimination. The court was careful to note, however, that the facts in the case before it did not involve matters invoking religious liberty interests, including the ministerial exception and the Title VII religious exemption, stating those issues would need to be addressed in future cases.

One such case is Starkey v. Roman Catholic Archdiocese of Indianapolis, et al., decided by the 7th Circuit in July 2022. Lynn Starkey worked for Roncalli High School, a private Catholic school in Indianapolis, in a variety of roles for nearly 40 years, including most recently as its co-director of guidance. After Starkey informed Roncalli’s leadership that she was in a same-sex union, she received a letter from the principal explaining that her employment contract would not be renewed because her conduct violated Catholic teaching. Starkey sued, alleging violations of Title VII’s prohibitions on sex discrimination, retaliation and hostile work environment harassment, in addition to supplemental Indiana state law tort claims. Analyzing her claims, the federal district court concluded Starkey’s role included duties sufficiently spiritual in nature to render her a minister. It therefore granted summary judgment in favor of Roncalli on all her Title VII and state law claims, finding them barred by the ministerial exception.

The 7th Circuit affirmed on appeal. It agreed that Starkey qualified as a minister and that the district court correctly determined her claims were barred by the ministerial exception. In a lengthy concurrence, Judge Frank Easterbrook agreed with that result but wrote that the case should instead have been decided under the Title VII religious exemption without ever reaching the First Amendment question. He reasoned that firing people who have same-sex partners is sex discrimination under Bostock but is also religious discrimination because the archdiocese was carrying out its theological views, and “that its adherence to Roman Catholic doctrine produces a form of sex discrimination does not make the action less religiously based” and therefore is protected by the Title VII religious exemption.

In a similar case, Roncalli fired its other co-director of counseling, Michelle Fitzgerald, after learning that she had married another woman. Fitzgerald sued, alleging violations of Title VII and various state law claims. The district court granted summary judgment for Roncalli in September 2022 in Fitzgerald v. Roncalli High School, Inc., et al., holding that Fitzgerald was also a minister and that her claims were therefore barred by the ministerial exception. The case is currently on appeal in the 7th Circuit.

The debate over the ministerial exception, the Title VII religious exemption and their relationship to LGBTQ rights will undoubtedly continue in coming years as more cases involving the intersection of these issues make their way through the courts. Ultimately, it is an issue that will have to be resolved by the Supreme Court, which has been friendly toward religious liberty rights in a number of contexts in recent years.

How might the court resolve this particular issue? A clue may be found in Justice Samuel Alito’s statement, joined by Justice Clarence Thomas, in Seattle’s Union Gospel Mission v. Woods in March 2022.

There, a homosexual applicant had sought — and was denied — employment with a Christian organization with specific intent not to embrace and further its religious views against homosexuality but to protest and fundamentally change them. While the court’s order did not make headlines, as it merely denied certiorari for procedural reasons, Justice Alito expressed concern that the ministerial exception may not go far enough in protecting religious freedom by being limited to ministers and should instead apply to all employees of religious organizations. He argued that to “force religious organizations to hire messengers and other personnel who do not share their religious views would undermine not only the autonomy of many religious organizations but also their continued viability. If States could compel religious organizations to hire employees who fundamentally disagree with them, many religious non-profits would be extinguished from participation in public life — perhaps by those who disagree with their theological views most vigorously. Driving such organizations from the public square would not just infringe on their rights to freely exercise religion but would greatly impoverish our Nation’s civic and religious life.”

Not much faith may be needed to divine a likelihood that at least three other current justices could agree.•


Edward “Ted” Hollis is a partner in Quarles & Brady LLP’s Indianapolis office. Opinions expressed are those of the author.

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