Ministerial exception in the first amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The broader ecclesiastical abstention doctrine has specifically been applied to questions about who may lead a religious group. The Supreme Court held in 1952 that religious associations’ “freedom to select the clergy” was protected by the First Amendment’s Free Exercise Clause.1 Footnote
Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116 (1952) ( “Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.” ). For another example, in 1976’s Serbian Eastern Orthodox Diocese v. Milivojevich , the Court ruled that a state court ran afoul of the ecclesiastical abstention principles outlined in Watson v. Jones when it overturned a church’s decision to defrock a bishop.2 Footnote
426 U.S. 696, 717–18 (1976) . In the ensuing decades, lower courts built on these precedents to develop a doctrine known as the “ministerial exception,” which prevented courts from interfering with “the employment relationship between a religious institution and its ministers.” 3 Footnote
Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 188 & n.2 (2012) (citing lower court decisions). Cf. NLRB v. Catholic Bishop, 440 U.S. 490, 502–04, 507 (1979) (holding that if a federal statute were read to grant the National Labor Relations Board jurisdiction over religious school teachers, it would present a “significant risk” of infringing the First Amendment, and accordingly, interpreting the statute to exclude “teachers in church-operated schools” ).

In Our Lady of Guadalupe School v. Morrissey-Berru , the Court suggested that one particular factor from Hosanna-Tabor —the individual’s job functions—was the most important for determining whether a particular employee qualifies for the ministerial exception.12 Footnote
No. 19-267, slip op. at 18 (U.S. July 8, 2020) . However, the Court emphasized that “a variety of factors may be important” in any given case. Id. at 16 . Our Lady of Guadalupe involved two employment discrimination claims brought by teachers fired by religious schools.13 Footnote
Id. at 2 . The Court ruled that the two teachers fell within the ministerial exception14 Footnote
The majority opinion seemed to move away from using the term “ministerial exception,” referring instead to “the Hosanna-Tabor exception,” id. at 16 , or “the exemption we recognized in Hosanna-Tabor ,” id. at 21 . This nomenclature choice could be related to the substance of the decision; elsewhere, the Court emphasized that not all religions use the title of “minister,” cautioning against “attaching too much significance to titles.” Id. at 17 . even though, relative to the teacher in Hosanna-Tabor , they did not have the title of “minister,” had less religious training, and were not practicing members of their employer’s religion.15 Footnote
Id. at 23–26 . Instead, the Court said that “[w]hat matters, at bottom, is what an employee does.” 16 Footnote
Id. at 18 . Specifically, the Court recognized “that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.” 17 Footnote
Id. The Court further stated that the two teachers in the combined cases “performed vital religious duties,” emphasizing that they provided religious instruction, prayed with their students, and were “expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.” 18 Footnote
Id. at 21 . Consequently, in the Court’s view, “judicial intervention” in either dispute would have “threaten[ed] the school’s independence in a way that the First Amendment does not allow.” 19 Footnote
Id. at 27 .

Footnotes 1 Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church, 344 U.S. 94, 116 (1952) ( “Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.” ). 2 426 U.S. 696, 717–18 (1976) . 3 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC , 565 U.S. 171, 188 & n.2 (2012) (citing lower court decisions). Cf. NLRB v. Catholic Bishop, 440 U.S. 490, 502–04, 507 (1979) (holding that if a federal statute were read to grant the National Labor Relations Board jurisdiction over religious school teachers, it would present a “significant risk” of infringing the First Amendment, and accordingly, interpreting the statute to exclude “teachers in church-operated schools” ). 4 Hosanna-Tabor , 565 U.S. at 188 . 5 Id. at 179 . 6 Id. at 180 . 7 Id. at 188–89 . 8 Id. ( “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.” ). 9 Id. at 190 . 10 Id. at 191–92 . 11 Id. at 194 . The EEOC and the teacher had originally sought an order reinstating the teacher to her position, but at the Supreme Court, the teacher sought only front pay. Id. The Supreme Court said that while the reinstatement order “would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers,” the monetary relief was similarly unconstitutional “as a penalty on the Church for terminating an unwanted minister.” Id. The Court emphasized that the monetary relief “would depend on a determination that Hosanna-Tabor was wrong to have relieved [the teacher] of her position” —a ruling “barred by the ministerial exception.” Id. 12 No. 19-267, slip op. at 18 (U.S. July 8, 2020) . However, the Court emphasized that “a variety of factors may be important” in any given case. Id. at 16 . 13 Id. at 2 . 14 The majority opinion seemed to move away from using the term “ministerial exception,” referring instead to “the Hosanna-Tabor exception,” id. at 16 , or “the exemption we recognized in Hosanna-Tabor ,” id. at 21 . This nomenclature choice could be related to the substance of the decision; elsewhere, the Court emphasized that not all religions use the title of “minister,” cautioning against “attaching too much significance to titles.” Id. at 17 . 15 Id. at 23–26 . 16 Id. at 18 . 17 Id. 18 Id. at 21 . 19 Id. at 27 .