Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012)

565 U.S. ___ (2012) 
Oral arguments are available at: http://www.oyez.org

Vote: 9 (Alito, Breyer, Ginsburg, Kagan, Kennedy, Roberts, Scalia, Sotomayor, Thomas) 

Opinion of the Court: Roberts
Concurring Opinions: Alito, Thomas


Hosanna-Tabor Evangelical Lutheran Church of Redford, Michigan, is a member of the Missouri Synod of the Lutheran Church. In addition to the normal activities of a Lutheran congregation, the church operates a small school offering a “Christ-centered education” for children in kindergarten through eighth grade.

The Missouri Synod classifies teachers into two categories: called and lay. Called teachers are considered to have been invited to their vocation by God through a congregation. To be designated as called, a teacher must complete a special academic program offered by a Lutheran college or university, obtain the endorsement of a local synod district, and pass an oral examination by a faculty committee. A teacher who meets these qualifications may be “called” by a local congregation and receive the title “minister of religion—commissioned.” Congregations employ called teachers for open-ended terms, and the teachers can have their calls rescinded only for cause. Lay or contract teachers are not required to complete the special Lutheran academic training and are hired for 1-year renewable terms. Called and lay teachers have similar duties, but Lutheran congregations prefer to hire called teachers when they are available.

Cheryl Perich began working at Hosanna-Tabor in 1999 as a lay teacher, but within that first year, she completed the required training and was elevated to called teacher status. She taught kindergarten and fourth grade, instructing students in typical secular subjects. She also taught religion class 4 days a week, led students in daily prayer and devotional exercises, and occasionally led the school’s chapel service.

In 2004, Perich went on disability leave because she was experiencing symptoms of narcolepsy, a condition that caused her to enter sudden and deep sleeps from which she could not be roused. In January 2005, she informed the school that she would be ready to return to the classroom the following month. Hosanna-Tabor officials expressed concern that Perich would not be able to handle the physical demands of the job and informed her that a lay teacher had already been hired to take her place. The congregation offered to release her from her call and to subsidize her health insurance costs in return for her resignation. Perich refused to resign and provided documentation from her doctor stating that she would be ready to return to work in February. When the church refused to take her back at that time, Perich threatened a lawsuit. In response, the church terminated her employment. One reason given for the termination was that Perich’s threat to take legal action violated a Lutheran principle that any disputes within the church should be settled internally.

Perich filed a complaint with the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC investigated and concluded that Hosanna-Tabor had violated the Americans With Disabilities Act (ADA) by firing Perich in retaliation for her threatened legal action, and the commission joined with Perich in a suit against the church. The district court ruled in favor of Hosanna-Tabor, holding that the First Amendment prohibited the government from dictating to a church who its ministers must be. The court of appeals reversed, concluding that Perich was not a “minister.”

Before the Supreme Court, the church argued that the establishment clause limits the government’s authority to involve itself in internal church controversies and that the free exercise clause prohibits the government from appointing or removing church ministers. The EEOC countered that the government has a compelling interest in eradicating discrimination in the workplace and that the ADA is a neutral, generally applicable law that only incidentally burdens religious practice.



Certain employment discrimination laws authorize employees who have been wrongfully terminated to sue their employers for reinstatement and damages. The question presented is whether the Establishment and Free Exercise Clauses of the First Amendment bar such an action when the employer is a religious group and the employee is one of the group’s ministers. . . .

The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” We have said that these two Clauses “often exert conflicting pressures,” Cutter v. Wilkinson (2005), and that there can be “internal tension . . . between the Establishment Clause and the Free Exercise Clause,” Tilton v. Richardson (1971) (plurality opinion). Not so here. Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers. . . .

. . . Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own. . . .

Given this understanding of the Religion Clauses—and the absence of government employment regulation generally—it was some time before questions about government interference with a church’s ability to select its own ministers came before the courts. This Court touched upon the issue indirectly, however, in the context of disputes over church property. Our decisions in that area confirm that it is impermissible for the government to contradict a church’s determination of who can act as its ministers.

In Watson v. Jones (1872), the Court considered a dispute between antislavery and proslavery factions over who controlled the property of the Walnut Street Presbyterian Church in Louisville, Kentucky. The General Assembly of the Presbyterian Church had recognized the antislavery faction, and this Court—applying not the Constitution but a “broad and sound view of the relations of church and state under our system of laws”—declined to question that determination. We explained that “whenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of [the] church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them.” As we would put it later, our opinion in Watson “radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America (1952). . . .

. . . The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. 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.

The EEOC and Perich acknowledge that employment discrimination laws would be unconstitutional as applied to religious groups in certain circumstances. They grant, for example, that it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church or by an Orthodox Jewish seminary. According to the EEOC and Perich, religious organizations could successfully defend against employment discrimination claims in those circumstances by invoking the constitutional right to freedom of association—a right “implicit” in the First Amendment.Roberts v. United States Jaycees (1984). The EEOC and Perich thus see no need—and no basis—for a special rule for ministers grounded in the Religion Clauses themselves.

We find this position untenable. The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC’s and Perich’s view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.

The EEOC and Perich also contend that our decision in Employment Div., Dept. of Human Resources of Ore. v. Smith (1990) precludes recognition of a ministerial exception. In Smith, two members of the Native American Church were denied state unemployment benefits after it was determined that they had been fired from their jobs for ingesting peyote, a crime under Oregon law. We held that this did not violate the Free Exercise Clause, even though the peyote had been ingested for sacramental purposes, because the “right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).”

It is true that the ADA’s prohibition on retaliation, like Oregon’s prohibition on peyote use, is a valid and neutral law of general applicability. But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.

Having concluded that there is a ministerial exception grounded in the Religion Clauses of the First Amendment, we consider whether the exception applies in this case. We hold that it does. . . .

To begin with, Hosanna-Tabor held Perich out as a minister, with a role distinct from that of most of its members. When Hosanna-Tabor extended her a call, it issued her a “diploma of vocation” according her the title “Minister of Religion, Commissioned.” She was tasked with performing that office “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.” . . .

Perich’s title as a minister reflected a significant degree of religious training followed by a formal process of commissioning. . . . It took Perich six years to fulfill these requirements. And when she eventually did, she was commissioned as a minister only upon election by the congregation, which recognized God’s call to her to teach. At that point, her call could be rescinded only upon a supermajority vote of the congregation—a protection designed to allow her to “preach the Word of God boldly.”

Perich held herself out as a minister of the Church by accepting the formal call to religious service. . . . [S]he claimed a special housing allowance on her taxes that was available only to employees earning their compensation “ ‘in the exercise of the ministry.’” . . . In a form she submitted to the Synod following her termination, Perich again indicated that she regarded herself as a minister at Hosanna-Tabor, stating: “I feel that God is leading me to serve in the teaching ministry . . . . I am anxious to be in the teaching ministry again soon.”

Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission. Hosanna-Tabor expressly charged her with “lead[ing] others toward Christian maturity” and “teach[ing] faithfully the Word of God, the Sacred Scriptures, in its truth and purity and as set forth in all the symbolical books of the Evangelical Lutheran Church.” . . .

In light of these considerations—the formal title given Perich by the Church, the substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church—we conclude that Perich was a minister covered by the ministerial exception. . . .

Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer. The EEOC and Perich originally sought an order reinstating Perich to her former position as a called teacher. By requiring the Church to accept a minister it did not want, such an order would have plainly violated the Church’s freedom under the Religion Clauses to select its own ministers. . . .

The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter “strictly ecclesiastical,” Kedroff—is the church’s alone. . . .

The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her. Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

It is so ordered.


I join the Court’s opinion. I write separately to note that, in my view, the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization’s good-faith understanding of who qualifies as its minister. As the Court explains, the Religion Clauses guarantee religious organizations autonomy in matters of internal governance, including the selection of those who will minister the faith. A religious organization’s right to choose its ministers would be hollow, however, if secular courts could second-guess the organization’s sincere determination that a given employee is a “minister” under the organization’s theological tenets.


I join the Court’s opinion, but I write separately to clarify my understanding of the significance of formal ordination and designation as a “minister” in determining whether an “employee” of a religious group falls within the so-called “ministerial” exception. The term “minister” is commonly used by many Protestant denominations to refer to members of their clergy, but the term is rarely if ever used in this way by Catholics, Jews, Muslims, Hindus, or Buddhists. In addition, the concept of ordination as understood by most Christian churches and by Judaism has no clear counterpart in some Christian denominations and some other religions. Because virtually every religion in the world is represented in the population of the United States, it would be a mistake if the term “minister” or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one. Instead, courts should focus on the function performed by persons who work for religious bodies.

The First Amendment protects the freedom of religious groups to engage in certain key religious activities, including the conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith. Accordingly, religious groups must be free to choose the personnel who are essential to the performance of these functions.

The “ministerial” exception should be tailored to this purpose. It 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. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.