Clarifying and Reframing the 'Ministerial Exception

Abstract

This term, the Supreme Court is scheduled to hear and consider Kristin Biel’s case. Biel was a teacher at St. James Catholic School in Torrance, California. She taught fifth graders in all subjects, including the Catholic faith, and supervised students in their religious worship. Some time after she was diagnosed with breast cancer, St. James informed her that she would not be brought back for the upcoming year. Biel sued the school alleging discrimination on the basis of her disability in violation of the Americans with Disabilities Act of 1990 (ADA). St. James, in turn, claimed that because Biel was a “minister” and St. James is a religious group, the ADA did not apply to their employment relationship. While her case was pending in the Ninth Circuit, nearly five years after she was fired, Biel passed away, and her estate is continuing the litigation. The Supreme Court granted St. James’s petition for writ of certiorari. Even if the Supreme Court rules in Biel’s favor, she will have prevailed only on the threshold question: whether the ADA applied to her employment.

The First Amendment’s Religion Clauses requires an exemption to certain anti- discrimination laws, like the ADA, for certain employees of religious employers. But lower courts disagree about which employees qualify for the so-called “ministerial exception.” This discontinuity among circuit and state courts has created uncertainty regarding which employees are “ministers” and thus not protected by anti-discrimination statutes. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court formally recognized the existence of the exception and discussed some relevant facts to consider. In concurrence, Justice Clarence Thomas expressed concern that uncertainty may cause religious groups to conform to mainstream conceptions of religion and “ministerial” roles to receive equal treatment on this issue. Similarly, employees of religious groups may not assert their rights ex post or fully capture available gains ex ante (such as higher salaries) due to lack of information. Like Biel, even employees that do assert their rights may wait years.

The current circuit split centers on whether performance of religious tasks—one of four enumerated considerations in Hosanna-Tabor—is sufficient, standing alone, to consider such an employee a “minister.” Even those who believe such religious tasks to be sufficient seem to agree that religious duties can make one a “minister.” However, a close examination of the Establishment Clause, Hosanna-Tabor, and the purposes of the ministerial exception reveals that courts are asking the wrong question. The use of the word “minister” obfuscates who is exempted, and, despite the Court’s efforts, the Hosanna-Tabor considerations have turned into “factors.” Instead, the exception should apply to any employee of a religious group who fills a religious role. The Court should take the opportunity to clarify that the enumerated considerations in Hosanna- Tabor are guideposts of varying predictive value in ascertaining an employee’s “religious role.”

Keywords: first amendment, religion clauses, free exercise clause, establishment clause, ministerial exception, religious freedom