By a vote of 7-2, the U.S. Supreme Court held on July 8, 2020, that the
“ministerial exception” under the religion clauses of the First Amendment
forecloses employment-discrimination claims against religious schools by
teachers with religious duties.
Prior to the court’s decision in Our Lady of Guadalupe School
v. Morrissey-Berru, the Supreme Court had applied the “ministerial exception” only to
employees with the title “minister” who had religious training. Without a
“rigid formula” from the U.S. Supreme Court, lower courts had subsequently
differed on how broadly to apply the exception. After Our Lady,
the “ministerial exception” immunizes religious institutions from
employment discrimination claims by teachers — and perhaps non-teachers —
with religious duties.
In its 2012 decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the
U.S. Supreme Court adopted the “ministerial exception.” Hosanna-Tabor held that, under the First Amendment, religious
institutions have discretion over whom they employ as “ministers,”
unconstrained by anti-discrimination laws. So, for example, if a church
wanted to fire its pastor based on gender or sexual orientation, it could
do so, even though such discrimination would ordinarily be illegal. In that
case, the court did not announce “a rigid formula” for application of the
doctrine but found it relevant that the employee’s job title was
“minister,” and that she had religious training and was responsible to
teach religion and participate with students in religious activities,
including worship and prayer.
To clarify the reach of the “ministerial exception,” in 2019 the U.S.
Supreme Court granted certiorari on two appellate rulings from the 9th U.S.
Circuit Court of Appeals that had construed the “ministerial exception”
narrowly. In both cases, the 9th Circuit had held that teachers at
religious schools who taught religion in the classroom and also worshipped
and prayed with their students did not fall within the exception because
they did not have the formal title of “minister,” had limited formal
religious training and did not hold themselves out publicly as religious
leaders. Accordingly, the 9th Circuit permitted the teachers to challenge
their terminations under federal anti-discrimination laws.
The U.S. Supreme Court reversed the 9th Circuit’s holdings. Writing for the
7-2 majority, Associate Justice Samuel Alito explained that the
“ministerial exception” was based on the religion clauses of the First
Amendment, which “protect the right of churches and other religious
institutions to decide matters of faith and doctrine without government
intrusion.” The religion clauses, he noted, do not provide religious
institutions “general immunity from secular laws,” but they do “protect
their autonomy with respect to internal management decisions” that are
essential to the institution’s mission.” A key component of that autonomy,
he said, is “the selection of the individuals who play certain key roles.”
In Hosanna-Tabor, Justice Alito explained, the court adopted the
“ministerial exception” and applied it to bar an employment-discrimination
suit by a teacher at an Evangelical Lutheran school. Justice Alito
explained that “[t]he circumstances that informed our decision in Hosanna-Tabor were relevant because of their relationship to
Perich’s role in conveying the Church’s message and carrying out its
mission.” Those circumstances, he said, “are not inflexible requirements
and may have far less significance in some cases.”
In his opinion, Justice Alito adopted a functional test for application of
the “ministerial exception.” The court did not identify a “checklist” of
factors or a “rigid formula.” Rather, he noted: “What matters, at bottom,
is what an employee does.” Because both teachers performed “vital religious
duties” for a school that “expressly saw them as playing a vital role in
carrying out” a religious mission, the “ministerial exception” applied.
In dissent, Associate Justice Sonia Sotomayor argued that the majority
collapsed “Hosanna-Tabor’s careful analysis into a single
consideration: whether a church thinks its employees play an important
religious role.” She dissented because “that simplistic approach has no
basis in law and strips thousands of schoolteachers of their legal
protections.” She cautioned that the “Court’s conclusion portends grave
consequences,” with “over a hundred thousand secular teachers whose rights
are at risk.” She also speculated that the widening gyre of “ministerial
exception” case law could ultimately swallow “the rights of countless
coaches, camp counselors, nurses, social-service workers, in-house lawyers,
media-relations personnel, and many others who work for religious
What Lies Ahead for Employees of Religious Employers?
The U.S. Supreme Court has eschewed a “rigid formula” for application of
the “ministerial exception.” Thus, lower courts are left to draw boundaries
based on the newly announced principle from Our Lady: “What
matters, at bottom, is what an employee does.” Importantly, this principle
may even reach “secular” employees. That is, an employee need not be a
practicing member of the religion for the exception to apply.
Notably, even passage of legislation such as the Equality Act — proposed
legislation to bar anti-LGBTQ+ discrimination — will not restore civil
rights protections to those employees covered by the “ministerial
exception.” As explained in Our Lady, the exception is grounded in
the First Amendment, and the U.S. Constitution trumps statutory law.
for Religious Employers Seeking to Apply the “Ministerial Exception”
Employers seeking to squeeze into the cleft created by the “ministerial
exception” should consider the following steps, if appropriate and
- Update foundational documents, employee handbooks and other policies to
reflect the institution’s religious mission.
- Ensure that employees covered by the exception have explicitly religious
duties, including, for example, religious instruction or leading prayer.
- Explain in a job description, offer letter and/or employment agreement
how the duties of an employee contribute to the institution’s religious
- Tie performance reviews to religious standards, including, for example,
personal modeling of the faith.
For additional information regarding the impact of this decision, contact
the authors of this article or another member of the
McGuireWoods labor and employment team.