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Unanimous Victory for Freedom


Michael P. Moreland

Religious freedom has been in the news a lot this year, notably in the controversy over the U.S. Department of Health and Human Service’s Jan. 20 announcement of a rule that mandates that a range of religious institutions include coverage for contraception, sterilization and abortion-inducing drugs in their employee health plans. In another major development occurring just nine days earlier, the U.S. Supreme Court presented its decision in one of the most widely anticipated religious freedom cases in many years, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

Because the court had never spoken directly to whether an religious exception was required at all by the First Amendment, observers recognized that the case would be an important clarification of the scope of constitutional religious freedom.

The issue before the court was whether religious institutions are free to choose and retain “ministers,” including not only ordained clergy, but also employees who perform a range of religious functions, without government interference. For many years, the lower federal courts had uniformly held that the First Amendment required such an exemption from employment discrimination claims.

When the Supreme Court agreed to hear the case, the narrow issue before the court was whether a particular employee qualified as a “minister” for purposes of the ministerial exception. But because the court had never spoken directly to whether such an exception was required at all by the First Amendment, observers recognized that the case would be an important clarification of the scope of constitutional religious freedom.


The circumstances that led to Hosanna -Tabor v. EEOC are somewhat complicated. Cheryl Perich began working for the Hosanna-Tabor Lutheran Church in suburban Detroit in 1999, teaching both secular subjects and religion at its school. She received a ministerial “call” from the church to teach but in 2004 began experiencing health problems.

Perich then took an extended leave of absence, during which she was diagnosed with narcolepsy and the church hired another teacher. When the church asked Perich to resign, she threatened to sue. Because the church believed that such a threat was inconsistent with Perich’s ministerial “call,” her call was rescinded and she was terminated from her position in 2005.

Later that year, Perich filed a complaint with the Equal Employment Opportunity Commission, who filed suit against the church on her behalf. The federal district court agreed with the church that the ministerial exception barred the employee’s lawsuit against the church, but the U.S. Court of Appeals for the Sixth Circuit reinstated Perich’s claim. In the view of the Sixth Circuit, the fact that the employee’s duties included teaching secular subjects placed her outside the scope of any First Amendment-based exception to employment discrimination law.

The case underscored a larger debate about the ministerial exception in U.S. law. In recent years, critics of the exception pointed to a 1990 case, Employment Division v. Smith, in which the Supreme Court held that there is no constitutional right to a religious exemption from a law that applies generally to all people. Since employment discrimination laws are, the argument ran, such neutral laws of general applicability, there should be no religious exemption from them. Supporters of the ministerial exception, meanwhile, pointed to an older line of cases in which the court had refused to interfere in the internal matters of churches. They argued that the Establishment Clause and the Free Exercise Clause — notwithstanding Smith — prevent state interference with ministerial employment decisions.

In a move that dismayed advocates of religious freedom, the U.S. Department of Justice’s brief in Hosanna -Tabor v. EEOC went beyond the narrow issue of whether the ministerial exception should apply to the facts of Perich’s claim and took the extreme position that there is no general ministerial exception under the First Amendment’s religion clauses. In taking this position, the Obama administration was at odds with a wide spectrum of religious groups who argued for a robust ministerial exception as a necessary component of religious freedom. The U.S. Conference of Catholic Bishops was joined by numerous Protestant churches, Jewish and Muslim organizations, and others in filing amicus briefs on behalf of Hosanna-Tabor.

Indeed, the administration took a position more hostile to religious freedom than even the ACLU and Americans United for Separation of Church and State, both of whom acknowledged the ministerial exception in their amicus briefs but argued that it should not apply to cases in which the alleged discrimination or retaliation is unrelated to religion. By contrast, the administration argued that what remains of religious freedom regarding ministerial decisions is protected by the general freedom of association. According to this view, the Catholic Church cannot be sued for gender discrimination for holding that women cannot be ordained to the priesthood, but this is because of the Church’s constitutional right to associational freedom. This argument was peculiar, in that it implied that the religion clauses of the First Amendment do not protect the right of religious groups to select ministers, but the right of free association — which rests on a tenuous constitutional basis somewhere amid freedom of speech — somehow does.

In this way, the administration’s view failed to acknowledge that there is a constitutional limitation on the power of the state to interfere in ministerial employment decisions, which is rooted in a long tradition of Western political theory. Instead, it implied that such religious freedom, where it exists at all, merely involves weighing the state’s anti-discrimination interest against a religious institution’s right to association.


In a 9-0 decision delivered Jan. 11, the Supreme Court held that the First Amendment’s religion clauses require the ministerial exception and that the employee in the case qualified as a “minister.” Chief Justice John Roberts’s opinion for the court began by noting that the framers of the U.S. Constitution sought to avoid the problems experienced by the English with state interference in the selection of ministers, from Henry II’s fight with St. Thomas Becket regarding state control over ecclesiastical appointments to Henry VIII’s assertion of supremacy over the Church in England.

The chief justice summarized how the First Amendment’s free exercise and anti-establishment provisions apply to the case: “By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”

Employment Division v. Smith was distinguished on the grounds that there is a difference between regulation of outward conduct and interference in the internal matters of a church. The court described the administration’s position as “untenable” because the First Amendment “gives special solicitude to the rights of religious organizations.”

Although the opinion left unresolved the question of who, precisely, counts as a minister, it noted that this case was clear because Perich’s duties “reflected a role in conveying the Church’s message and carrying out its mission.” Justice Clarence Thomas argued in a concurring opinion that courts should defer to a religious institution’s own determination about who is a minister. Similarly, Justice Samuel Alito and Justice Elena Kagan — the most recent appointment to the court by President Obama — argued in their concurring opinion that future cases should look broadly to the functions performed by an employee.

Ultimately, Hosanna-Tabor is a resounding victory for religious freedom. As Chief Justice Roberts noted, there is undoubtedly a significant state interest in employment discrimination, but there is a more important interest in religious institutions being free to select their ministers. The case underscored the important roles that the various branches of the federal and state government play in striking the right balance between asserted state interests and religious freedom. Coming amid the heated debate over the administration’s contraception mandate, Hosanna-Tabor is a valuable reminder that the First Amendment imposes meaningful and judicially enforceable limits on the power of the state to interfere with religious institutions.


MICHAEL P. MORELAND is an associate professor at Villanova University School of Law.