After reading through the transcript of yesterday’s oral arguments in the Hosanna-Tabor case, a few more things seem worth highlighting.
First, with respect to the issue of “retaliation”: Justice Kennedy seemed worried that an appropriately robust ministerial exception might shield employers who retaliate against employees who report wrongdoing, and he said at one point that Ms. Perich was fired because she asked for a hearing. Actually, this isn’t quite right. She did, in fact, get a chance to present her side to the full congregation but the congregation still decided to rescind her call by a 40–11 vote. And, she did not ask for a hearing in the neutral Lutheran tribunals that she as a Lutheran minister had a right and an obligation to use.
In any event, a sound and workable ministerial exception could not, practically speaking, include a exception-to-the-exception for retaliation claims. Every case would simply be pleaded as a retaliation case, because it is not very hard to create the facts supporting a retaliation claim, just as Ms. Perich did in this case. The special retaliation rule would swallow the ministerial exception. What’s more, as a doctrinal matter, a retaliation exception to the exception is not consistent with the principle of neutrality. As both Justices Breyer and Alito pointed out at argument, allowing ministers’ retaliation claims to proceed against churches, but not their simple discrimination claims, devalues the Lutheran rule against suing fellow believers compared to, say, the Catholic understanding that only men may be priests. Finally, the reason for the ministerial exception is that it is required by fundamental principles of religious freedom and church-state separation, and those principles limit the capacity and authority of government to supervise essentially religious decisions whether or not a claim challenging such a decision is framed in retaliation terms.
Next, there’s the important question of how to avoid entangling courts in religious questions. At one point, Justice Breyer stated that having courts decide who’s a minister would be just as likely to raise impermissible religious questions as having courts decide whether a church’s religious reason is pretextual. But that can’t be true. The pretext issue will arise in almost every case — as Justice Alito pointed out, it is extremely common issue in employment discrimination cases. But, in the vast majority of the kind of cases we are talking about, it will be clear whether the employee is a minister or not. Some cases are on the borderline, and are tricky, but most are not. If we are trying to minimize the extent to which secular courts have to deal with questions that do or could have religious dimensions, a rule that invites litigation over pretext in employment lawsuits by ministers against churches is far worse than a robust ministerial exception.
Finally, and relatedly, how to decide who “counts” as a minister for purposes of the rule: The Court seemed to be struggling to articulate a clear rule. Here, Hosanna-Tabor argues (and I agree) that existing caselaw can be summed up in a two-part test: if an employee either occupies an ecclesiastical office or exercises important religious functions, then that employee is a “minister” for purposes of the ministerial exception. (The right approach is clearly not to simply count up the number of hours that an employee spends doing things that the court thinks are “religious.”) It is important to note that the term “minister,” as Prof. Laycock pointed out at argument, is a legal term, not a theological one. Under Hosanna-Tabor’s proposed test, courts should give presumptive deference to a church’s definition of an employee as a minister, although this presumption could be rebutted if the plaintiff can show that the office is a sham or that the employee has absolutely no religious function. This approach is the least intrusive option, and the least likely to raise religious questions that a court cannot and should not answer.
So, the Chief Justice need not be concerned about employees in a religion that says “everybody’s a minister” — courts will not recognize everyone in a particular religion as holding ecclesiastical office. The existence of an office will have to turn on some practical distinction among members of the church (and a church where all the members are employees seems pretty unlikely!). For example, Catholics proclaim a “priesthood of all believers” (see, e.g., Lumen Gentium) but that doesn’t mean everyone holds ecclesiastical office or is a “minister” for purposes of the First Amendment and the ministerial exception.
As I said in my earlier post, I am optimistic, based on the arguments, that the Court will be able to articulate a test close to what Hosanna-Tabor has suggested, since that will create a minimum of state intrusion into the sphere of the church. Justice Kennedy’s expressed concerns, in particular, are answerable, and he should be comfortable with the approach that best reflects our deep-rooted commitment to religious freedom and our longstanding appreciation of the important distinction between secular questions and authority, on the one hand, and religious questions and authority, on the other.
— Richard W. Garnett is professor of law and associate dean at Notre Dame Law School.