'Ministerial Exception' Upheld

U.S. Supreme Court ruling may make it more difficult for some employees to sue religious colleges.

January 12, 2012

WASHINGTON -- The U.S. Supreme Court ruled unanimously Wednesday that religious organizations enjoy a "ministerial exception" that removes many of their employment decisions from government review.

The ministerial exception is a principle that has been upheld by other courts but not the Supreme Court. The basic idea behind it is that the principles of separation of church and state would be violated if government authorities could question the appointment or dismissal of a church's pastor. The case decided Wednesday involved a teacher at a Lutheran school, and the question of how broadly the exception could be applied. The teacher charged that the school violated the Americans With Disabilities Act by dismissing her.

The Supreme Court's ruling found that the teacher -- even though she largely taught secular subjects -- had enough religious training and responsibilities to be covered by the ministerial exception.

While the case did not involve a college, many religious colleges followed the case with great interest. Advocates for religious colleges had feared that a ruling the other way by the Supreme Court could have opened up their theological practices to scrutiny for consistency with equal employment laws. Some advocates for employees, meanwhile, feared that a broad Supreme Court definition of the exception could effectively deny any legal protections to employees of religious organizations.

The Supreme Court's decision -- by Chief Justice John Roberts -- clearly states that the Supreme Court does not consider the exemption to be limited to members of the clergy. But the decision does not spell out specific rules for determining who may be covered by the exemption. The Supreme Court "does not adopt a rigid formula" for such determinations, the decision said.

In explaining why the teacher was covered by the exemption, the decision cites a series of circumstances that suggest that the decision might cover some religious employees at religious colleges, but not necessarily all of them. At the school, teachers were divided into two groups -- "called" and "lay." The school hired "called" teachers whenever possible, and Cheryl Perich, the teacher in the case, was such a teacher. To become such a teacher, religious instruction was required. And while these teachers taught secular subjects, they also taught religion and led students in prayer.

Periodically, issues involving the ministerial exception have come up in higher education. In 2006, a federal appeals court surprised many legal observers by ruling that religious colleges could be sued for employment actions against a chaplain if those actions weren't based on "faith, doctrine, or internal regulation." That decision could have opened the way for more suits against religious colleges, but it was reversed by the same court a few months later.

A case under appeal in Kentucky focuses on whether the ministerial exception covers all faculty members at a seminary.

Michael A. Olivas, an expert on higher education law at the University of Houston Law Center, said he thought Wednesday's decision was "dreadful" in limiting the rights of people who work in largely secular duties at religious institutions. He noted that groups such as the American Association of University Professors that fight for faculty rights give considerable leeway to religious colleges.

He said that there is "a very slippery slope" in granting religious institutions more and more freedom from any questioning of employment actions.

The Council for Christian Colleges and Universities submitted a brief in the case backing the Lutheran school and urging deference to religious colleges and other religious institutions. The brief argued that, at Christian colleges, there is not a divide between religious and secular education because faith is integrated into all instruction. "[T]he concept of faith integration is not a subterfuge to take advantage of the ministerial exception," the brief said. "To the contrary, it is an integral part of the mission of many religious higher-education institutions and has been the subject of significant thought and study."

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