The ministerial exception, religious freedom, and a tale of two courts

Recent litigation from Michigan and New Jersey, involving different factual settings focused on the same underlying issues regarding religious freedom in education, reveal two widely varying degrees of respect for the ministerial exception, which affords faith-based employers sole authority to determine who qualifies to work in their institutions.

I will first review Supreme Court litigation addressing the ministerial exception in Title VII of the Civil Rights Act of 1964, then review the two cases, and then conclude with thoughts on why the ministerial exception must be preserved.

Litigation on The Ministerial Exception: Supreme Court

Title VII is the most far-reaching federal law banning employment discrimination on various characteristics, including religion. Rather than examine the expansive Title VII in detail, though, this section highlights the ministerial exception. This exception applies to

a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Rooted in the First Amendment Religion Clauses, this exception applies if officials can demonstrate that individuals deemed ministerial employees are engaged in teaching or other activities integrally related to furthering the spiritual and pastoral missions of their institutions. Under this exception, courts defer to the discretion of religious leaders, even if employee contracts do not include the words “minister” where their jobs involved integrated daily religious functions, such as teaching and leading children in prayer.

The Supreme Court first upheld the rights of religious employers under Title VII in 1987’s Corporation of Presiding Bishops v. Amos. The Justices observed that when officials of the Church of Jesus Christ of the Latter-Day Saints in Utah relied on Title VII in dismissing a staff member who failed to meet his religious obligations, they did not violate the Establishment Clause.

Twenty-five years later, in 2012, in the first of two cases in which it explicitly used the term “ministerial exception,” the Supreme Court upheld the authority of religious leaders to decide to whom it applies. In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunities Commission, albeit under the Americans with Disabilities Act, not Title VII, in an uncommon unanimous judgment, the Supreme Court upheld the exception. The Justices reasoned that although a teacher in Michigan claimed that her primary duties were secular, the exception precluded her ADA disability-related claim. The Justices emphasized that only church officials can identify who qualifies as ministerial employees.

In 2020, in Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the Supreme Court again upheld the exception, deferring to school officials in specifying who qualified as ministers. The Court rejected the age discrimination and ADA claims of teachers in two Roman Catholic elementary schools in California because, as ministerial employees, the First Amendment barred their suits.

Recent Litigation: St. Jospeh Parish v. Nessel

Founded in St. Johns, Michigan in 1857, St. Joseph Parish has operated an elementary school since 1924. Consistent with other faith-based schools, St. Joseph expects staff members to be practicing Catholics who uphold Church teachings on issues such as gender, sexuality, marriage, pronoun use, and separate bathrooms and locker rooms for females and males.

At issue in St. Joseph Parish v. Nessel is its appeal, now joined by other Catholic churches, of the dismissal of their challenges to Michigan’s Elliott-Larsen Civil Rights Act.

Adopted in response to the state Supreme Court’s redefining sex as including sexual orientation, without exemptions for religious organizations, the statute prohibits discrimination by “educational institution[s]” because of “religion, race, color, national origin, or sex.” This law places St. Joseph, and other faith-based institutions, at risk of being sued for discrimination if they hire staff who abide by their religious beliefs and for living out their faiths authentically.

Rejecting St. Joseph’s First Amendment claims, a federal trial court judge ignored two recent Seventh Circuit cases from Indiana to the contrary affirming the rights of faith-based employers to hire those meeting their qualifications as ministerial on what can only be described as questionable grounds. First, the judge did not think there was “any present or imminent threat of enforcement” of the statute. Second, she remarked that “St. Joseph has not plausibly alleged a credible threat of enforcement against it, and mere allegations of a ‘subjective chill’ are alone insufficient to establish an injury-in-fact for standing purposes.”

More specifically, the judge decreed that because St. Joseph has yet to be sued, it could not object to the statute even though it arguably violates Title VII. Having heard oral arguments on June 11, 2024, the Sixth Circuit should rule in the coming months.

Hyman v. Rosenbaum Yeshiva of North Jersey

In Hyman v. Rosenbaum Yeshiva of North Jersey, the state Supreme Court upheld the religious freedom rights of officials in an Orthodox Jewish school who dismissed a rabbi-teacher, a thirty-year employee. Officials fired the rabbi-teacher for violating Jewish law by allegedly inappropriately touching fifth and sixth-grade female students by massaging their shoulders, placing stickers on their chests, and playing classroom games, causing him to touch them. Convinced that the allegations had merit, officials notified parents that they dismissed the rabbi-teacher who subsequently filed his defamation claim.

The six participating members of the panel in Rosenbaum Yeshiva released a brief, paragraph long, per curiam, “for the court” order, rejecting the rabbi-teacher’s defamation claim. In so doing, the court honored the rights of Yeshiva officials to select and control the duties of their ministers, regardless of whether alleged misconduct involves religious beliefs.

In its rationale, the concurrence noted that “[t]he United States Supreme Court has not had occasion to apply the ministerial exception to a tort claim such as the defamation claim at issue here, and indeed cautioned that such an inquiry must await an appropriate case.” The concurrence wrote that if it had reviewed why Yeshiva officials dismissed the rabbi-teacher from his ministerial position, it would have violated the First Amendment because it is not limited to the employment actions officials in faith-based institutions make on religious grounds. The concurrence concluded that because “additional discovery would not alter the constitutional analysis in this matter,” officials at Rosenbaum Yeshiva had the authority to decide who qualifies as a ministerial employee.

An equally divided court disagreed as to whether discovery was required to get a clearer picture of the defamation claim. However, because only three justices joined the dissent, the court upheld the denial of the rabbi-teacher’s defamation claim.

Some observations

An initial question emerges as to St. Joseph given the well-established precedent upholding the rights of officials in faith-based schools to hire staff members who meet the criteria they alone have the authority to establish for employees in positions deemed ministerial. Why did the federal trial court judge in Michigan order educational officials in St. Joseph School to wait to be sued and then incur the unnecessary expense of having defend themselves for allegedly engaging in discrimination before allowing their challenge to the state law, which certainly appears to violate both Title VII’s ministerial exception and Supreme Court precedent to proceed in its merits?

The potential enforcement of the Michigan law might have the chilling effect of giving officials in faith-based institutions pause before filling vacancies for fear of violating its provisions. It is equally perplexing why the judge denied them standing, or the ability to file suit, to litigate a statute that arguably infringes on their ministerial exception rights.

Unlike the judge in Michigan, the Supreme Court of New Jersey recognized that employment issues involving religion are beyond the expertise of secular jurists in deferring to the judgment of officials in Rosenbaum Yeshiva. The court applied the ministerial exception because it realized that determining who is qualified to teach in a faith-based school is best left to religious officials who bear the burden of proving that staff members engage in ministerial duties.

To reiterate: it is unclear why the federal judge in St. Joseph refuse to protect religious liberty prospectively. The judge should have been more attuned to safeguarding religious freedom because the issues in this dispute go to the heart of teaching and other activities integrally related to promoting the spiritual and pastoral missions of faith-based schools, as this is just the type of situation the ministerial exception is designed to protect.

An underlying issue in St. Joseph is that, of course, all individuals are free to live as they wish. Still, why would Michigan, or any other state, adopt a law apparently targeting religious institutions in suggesting that they engaged in discriminatory behavior when their administrators seek to hire staff members who comply with the sexual and other teachings of their faiths?

To date, controversy has apparently yet to emerge in St. Joseph School, as it has in the cases from Indiana highlighted earlier involving individuals whose lifestyles, albeit involving same-sex relationships in a Catholic high school, fail to comply with teachings of the religious organizations operating the educational institutions where they seek to work. Put another way, even in conceding that some might view teaching as just a job (a situation that is less common in faith-based schools where being an educator is often regarded as a vocation requiring commitment to schools’ religious values) why would individuals want to work in educational settings if their values are incongruent with the religious teachings and missions of their potential employers?

Because respect is supposed to go both ways, it is unclear why lawmakers in Michigan did not demonstrate it toward faith-based schools by ignoring their rights to religious freedom. Instead, consistent with federal law, legislators should have granted deference to the long held sincere religious beliefs of religious employers protected by the First Amendment and Title VII’s ministerial exception rather than apparently questioning, if not denying, their ability to hire individuals who agree to live in accord with the teachings of their faiths.

Returning to Rosenbaum Yeshiva, the Supreme Court of New Jersey rightly acknowledged that its officials had the authority to dismiss an employee who failed to live up to the school’s religiously based behavioral standards. Thus, the court held that institutional religious freedom trumped the rabbi-teacher’s civil defamation claim in light of the underlying statutory and constitutional issues. It is unclear why the judge in Michigan failed to apply a similar rationale.

It is essential to preserve the ministerial exception because it was enacted to ensure the First Amendment and federal statutory rights to religious freedom of faith-based schools. Protecting the exception is crucial because it affords educational officials the right to preserve the religious identities of their schools by granting them the sole authority to hire, retain, and/or dismiss those who are best suited to witness to their faiths while working to advance institutional missions and goals.

In light of the significant constitutional and statutory rights at issue under the ministerial exception (not to mention litigation reviewed above) it would be surprising if the Sixth Circuit did not follow precedent by reversing in favor of St. Joseph, thereby securing its right to religious freedom.