You Are Entering the Exception Zone
Meet Emily Herx – an English teacher at a parochial school. Emily is a happily married, ambitious young woman who wants nothing more than to start a family. Emily suffers from a diagnosed medical condition that causes infertility. Last June she began in vitro fertilization (IVF) treatments with high hopes of fulfilling her life-long dream of becoming a mother. Now, as a result of those treatments, Emily is unemployed and has a lawsuit pending in the U.S. District Court in Fort Wayne, Indiana. She alleges that the diocese violated the Civil Rights Act and the Americans with Disabilities Act by discriminating against her based on gender and on infertility, which is covered under Title VII’s pregnancy discrimination amendments according to the Seventh Circuit case of Hall v. Nalco Co., 534 F.3d 644 (7th Cir. 2008).
Emily works at the St. Vincent de Paul School located in the Diocese of Fort Wayne-South Bend in Fort Wayne, Indiana. Eleven days after Emily requested time off from her teaching job for her second round of IVF treatments, the principal at St. Vincent informed her that her teaching contract would not be renewed because of “improprieties related to church teachings or law.” And, according to Emily, the principal referred to her as a “grave, immoral sinner.” The Diocese, in response to Emily’s complaint, has raised what has come to be known as the ‘ministerial exception.’
Allow me to introduce you to the ministerial exception. The ministerial exception is an affirmative defense that categorically prohibits ministers from bringing employment discrimination claims against their religious employers pursuant to Title VII of the Civil Rights Act of 1964. In other words, a religious organization can terminate its ministers at any time for any reason, whether discriminatory or not. Thus, a court may initially only address the threshold question of whether an employee is a minister; if the court finds that the employee is a minister that is the end of the lawsuit.
Before jumping to conclusions on the legitimacy of such a rule, a brief overview of Constitutional underpinnings that justify the exception is beneficial. The ministerial exception is firmly grounded in the First Amendment, with the Establishment Clause preventing the government from appointing ministers, and the Free Exercise Clause preventing it from interfering with the freedom of religious groups to select their own.
In cases where the exception is invoked, there is a clear and critical implication of religious liberty, church autonomy, and the separation of church and state. These principles, embodied in the First Amendment, are never more at risk than when a secular court is asked to substitute its judgment for that of the church on issues concerning whether an individual is qualified to spread its message and carry out its mission. Indeed, a church’s right to freely choose who will convey the tenets of the faith to the next generation is nothing less than its bare right to exist.
Furthermore, religion plays a fundamental role in checking the power of the state, and religious leaders play a fundamental role in the lives of the people who make up the organization. Beyond simply teaching the faith, they marry us, care for us when we are dying or depressed, bury our loved ones, and baptize our children. Thus, because selecting a minister is at the heart of religion, the heart of religious freedom rests in having free choice in making that selection. And, to be sure, the slightest loss of religious liberty is a loss of overall liberty for all, believers and nonbelievers alike.
In most employment discrimination cases the relief sought by the plaintiff is reinstatement to the former position or front pay in lieu of reinstatement, which raises deeply troublesome issues when the employer is a religious organization. Our nation has a rich religious history beginning with the Puritans fleeing to New England in an effort to escape control of the national church in hopes of electing their own ministers to establish their own modes of worship. One can easily imagine the real threat to religious liberty posed when churches and congregations are burdened with accepting a minister whose spiritual authority they reject.
Moreover, this problem is not alleviated when a plaintiff seeks monetary relief in the form of front pay in lieu of reinstatement. In such a circumstance, the government is still interfering with the church’s control of their clergy, just in a different way: appoint this minister or pay a fine. Thus, this scenario implicates the essence of the Establishment Clause by forcing a church to not only pay for the state’s minister, but also to find money to pay for their own.
Over the past forty years the ministerial exception has been recognized in one form or another by every circuit Court of Appeals in the United States. Finally, on January 11th, 2012, the United States Supreme Court issued an opinion, in Hosanna-Tabor v. EEOC, that officially affirmed the existence of the exception, a decision that many commentators have called, “The most important case for religious liberty in over twenty years.”
However, what was included in the majority opinion of that case was equally as intriguing as what was missing. While the Court granted broad and sweeping immunity to religious organizations for claims brought by ministers pursuant to Title VII, they did not even pretend to propound a standard for lower courts to follow when determining whether an employee qualifies as a minister. Chief Justice Roberts simply stated:
[T]he ministerial exception is not limited to the head of a religious congregation . . . We are reluctant, however, to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this our first case involving the ministerial exception, that the exception covers [the Petitioner], given all the circumstances of her employment.
The Court’s reluctance to articulate a “rigid formula” is certainly well-reasoned and appreciated, as any “rigid formula” would likely have the unintended consequence of causing churches to restructure and conform their beliefs and practices regarding “ministers” in order to comport with the government’s secular definition of the term. However, it is now six months since the court issued its opinion, the facts and circumstances have changed, and it appears inevitable that the Supreme Court will have no choice but to revisit this controversial issue.
So, how should a secular court approach the monumental task of defining such an inherently religious term? The answer, of course, is by identifying the competing societal interests and articulating a rule that strikes an appropriate balance between the two. Clearly, this is easier said than done.
On the one hand, society’s interest in eradicating all forms of discrimination is of utmost importance; however, so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. However, as Chief Justice Roberts noted, when these competing interests are at tension with one another, “ [T]he First Amendment has struck the balance for us.”
The key then, is identifying when these interests are truly at tension with one another, and that determination hinges solely on whether the employee is in fact a minister. Indeed, many of the circuit courts have made laudable attempts at crafting a standard to distinguish ministers from non-ministers, which has resulted in two potential approaches rising to the forefront: (1) the “primary duties” test, and (2) the “job functions” test.
First, under the traditional “primary duties” test, the court essentially divides up all of the employee’s duties into religious and non-religious categories in terms of time, and then determines if the employee is a “minister” based upon whether the duties are primarily religious or primarily secular.
While this is a noble effort to address a difficult issue, this method of analysis breaks down in practice, not only because it suffers from a deep level of generality, but also because it presumes there is a clear-cut distinction between religious and nonreligious duties. Chief Justice Roberts highlighted this point best when he stated, “Recall the old story about three masons being interviewed about their work. One replies that he is cutting stone. Another claims he is crafting an entryway. The third says he is building a cathedral. Because their answers are pitched at different degrees of abstraction, the first two can speak of their work in wholly secular terms and the third can speak in wholly religious terms, without any contradiction.”
The second approach, offered by Justice Alito in his concurring opinion in Hosanna-Tabor, sets forth a workable standard that has come to be known as the “job functions” test. Specifically, he opines, “The ‘ministerial’ exception . . . should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.” Thus, where a “primary duties” analysis focuses on the responsibilities of the employee and categorizes them as primarily religious or primarily secular; a “job functions” analysis focuses on the nature of the employee’s religious activities. Indeed, this approach has been implemented on numerous occasions by various circuit courts to cover claims by lay employees of religious institutions when they serve a function sufficiently similar to that discharged by clergy.
So, where does this leave Emily? As far as facts and circumstances go, her case is certainly distinguishable. Unlike the Petitioner in Hosanna-Tabor, Emily was not a commissioned minister, did not teach any religion courses, and was not required to undergo any formal religious training—all of which were factors the Court considered important in its Hosanna-Tabor opinion. Therefore, based on the limited facts we know at this point, it appears her primary duties and job functions were non-ministerial, and her case will likely proceed to be heard upon the merits of her claim.
Whatever developments may ensue, when the door to this dimension of religious liberty is unlocked, the decision rendered will likely have far-reaching implications for re-defining religious liberty as we know it. In one way or another, we will all cross over into the effects of the ministerial exception zone. And, for that reason we should all become acquainted with the fascinating case of Emily Herx.