The First Amendment to the U.S. Constitution states in
part: "Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . ." The first of these two
quoted clauses is known as the Establishment Clause. The second of these
two quoted clauses is termed the Free Exercise Clause.
In January 2012, in Hosanna-Tabor Evangelical Lutheran
Church and School v. Equal Employment Opportunity Commission, No. 10-553,
565 U.S. ___ (U.S. Jan. 11, 2012) (Roberts, C.J.) [an enhanced version of this opinion is available to lexis.com subscribers
/ unenhanced version available from lexisONE Free Case Law],
a unanimous U.S. Supreme Court held that the Establishment and Free Exercise
Clauses of the First Amendment prohibit a minister who is employed by a
religious institution from suing his employer for terminating him in violation
of a statute prohibiting discrimination or retaliation in employment. Such a
lawsuit is barred, the Hosanna-Tabor Court held, whether the minister's
lawsuit seeks reinstatement or, instead, damages.
The Hosanna-Tabor decision is a major victory for
private educational institutions - including elementary, junior high, and high
schools as well as universities and graduate schools - which are affiliated
with particular religious denominations.
In the Hosanna-Tabor decision, the U.S. Supreme
Court held, for the first time, that there exists a judge-made " 'ministerial
exception, ' grounded in the First Amendment, that precludes application
of [employment discrimination] legislation to claims concerning the employment
relationship between a religious institution and its ministers." Hosanna-Tabor
Evangelical Lutheran Church & School, No. 10-553, slip op. at 13.
As the Hosanna-Tabor Court observed, each of the
twelve U.S. Courts of Appeals had already recognized the ministerial exception
to employment discrimination laws. See Hosanna-Tabor,
No. 10-553, slip op. at 13 & n.2. (So, too, New York's Appellate
Division, First Department, had applied the ministerial exception. See
O'Connor v. Church of St. Ignatius Loyola, 8 A.D.3d 125, 779 N.Y.S.2d 31
(N.Y. App. Div. 1st Dep't 2004.)
In Hosanna-Tabor, the U.S. Supreme Court
"concluded that the ministerial exception is not limited to the head of a
religious congregation." However, the Court declined "to adopt a rigid
formula for deciding when an employee qualifies as a minister" who is unprotected
by statutes prohibiting discriminatory or retaliatory termination of employment.
Hosanna-Tabor, No. 10-553, slip op. at 13 & n.2.
The Hosanna-Tabor Court reinstated the
federal district court's order granting summary judgment dismissing the
claims of the intervenor, a kindergarten and elementary school teacher, that
the defendant church and school, a member congregation of the Lutheran
Church-Missouri Synod, fired her in retaliation for threatening to file a
lawsuit against the church and school under the Americans with Disabilities
Act, 42 U.S.C. §§ 12101 et seq. (the "ADA"). In so ruling, the
U.S. Supreme Court made clear that, however broad the definition of a
"minister" is for purposes of the ministerial exception to employment discrimination laws, that definition is
considerably broader than the appellate courts of New York to date have
Specifically, in Hosanna-Tabor, the intervenor
individual was a " 'called teacher' " at the defendant church and school,
meaning that the congregation "regarded [her] . . . as having been called to
her vocation by God through [the] congregation." Hosanna-Tabor,
No. 10-553, slip op. at 2. To become a " 'called' " teacher, the
intervenor had to, and did, complete eight college level courses, some of which
concerned Lutheran church doctrine; obtain the endorsement of her local Synod
district; and pass an oral examination by a faculty committee at a Lutheran
college. Id. at 16. However, the intervenor spent only 45
minutes of each workday teaching religious subjects or otherwise performing
religious duties. Id. at 18. "[T]he rest of her day was
devoted to teaching secular subjects." Id.
The U.S. Supreme Court held that the intervenor "was a
minister covered by the ministerial exception" to employment discrimination laws. Hosanna-Tabor,
No. 10-553, slip op. at 18.
By contrast, in the only New York appellate opinion
recognizing the doctrine to date, New York's Appellate Division, First
Department, relying on a more narrow " 'ministerial exception,' " affirmed the
dismissal of an "employment discrimination" lawsuit brought by the plaintiff,
"a pastoral associate and chaplain whose primary function served the spiritual
and pastoral mission of the church." O'Connor v. Church of St.
Ignatius Loyola, 8 A.D.3d 125, 779 N.Y.S.2d 31 (N.Y. App. Div. 1st Dep't
After Hosanna-Tabor, private educational
institutions which are affiliated with particular religious denominations have carte
blanche to fire the heads of the institutions for reasons which, if a
non-religious institution utilized them to fire an employee, would constitute prohibited discriminatory or retaliatory termination of
employment. Sectarian educational institutions' authority lawfully to
terminate "ministers" for reasons that would otherwise be deemed discriminatory
or retaliatory extends down these institutions' hierarchies to some
extent. That extent will be explored by the federal and state courts on a
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