When Is a Teacher a Minister? The Court Will Let Us Know


In a world where Pastor Skip leads worship in the morning and coaches baseball in the afternoon, it can be hard to determine where religious autonomy ends and discrimination begins.

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It's not often that the chief justice of the United States sounds like a good-hearted waitress at a Southern diner -- "Y'all come back now, hear?" But he sounded that note Wednesday, as the Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Commission, the first of what is likely to be a series of cases on the so-called "ministerial exception" to anti-discrimination laws.

The Court was unanimous in holding that a small church school in Michigan could not be required to pay damages to a teacher it fired in what seems like a pretty clear violation of the Americans with Disability Act. The reason is that the teacher, Cheryl Perich, was a "called minister" of the Evangelical Lutheran Church congregation that sponsored the school. That didn't mean she was the pastor -- her duties were pretty much indistinguishable from those of non-"called" teachers at the school -- but she received extra job security and tax benefits from her status.  

When Perich became sick with narcolepsy, she took leave to try to stabilize her condition.  Six months later, when she said her doctor had cleared her to work again, the school told her she had been replaced for the school year and that if she showed up for work she'd be dismissed. She responded that her dismissal might violate the ADA, and that she had spoken with an attorney about her rights under the act. The school then fired her, saying she had violated a Lutheran religious policy of keeping disputes out of the secular courts.

Take religion out of the picture, and you've got a pretty open and shut case of discriminatory retaliation, which the statute plainly forbids. The EEOC took her case. A trial judge dismissed it, invoking the "ministerial exception." That exception is not written into the statute; when Perich appealed to the Sixth Circuit, it reversed. The exception exists, the Court of Appeals held, but did not cover an employee like Perich, who basically performed lay duties.

Hundreds of cases had considered this issue in the lower courts, concocting differing formulations for the exception, but the Supreme Court had not spoken until Wednesday. The Court's decision cheerfully notes that this is "our first case involving the ministerial exception." In an opinion by the chief justice, it conducted a careful analysis of Perich's duties and performance to conclude that "the exception covers Perich, given all the circumstances of her employment." The church "held Perich out as a minister," giving her a specific diploma and instructions to perform her office in accord with church teachings. She received her "call" after "a significant degree of religious training followed by a formal process of commissioning." She "held herself out as a minister," and claimed "a special housing allowance on her taxes that was available only to employees earning their compensation 'in the exercise of the ministry.'" Her job gave her "a role in conveying the Church's message and carrying out its mission." 

Because of her title and the process it reflected, her own use of the term minister, and the religious functions she fulfilled, Roberts said, she is a minister for purposes of the exception.  "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" -- it injects the state into decisions of a private, protected religious body.

The reason that Roberts's opinion constitutes an invitation is that the test he applied does not purport to be definitive. "We are reluctant... to adopt a rigid formula for deciding when an employee qualifies as a minister," he wrote. In addition, the exception may be different when different legal claims are involved: "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."  

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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