The Ministerial Exception – Are religious institutions in Kentucky free to discriminate?
The ministerial exception is a judicially created principle that stands for the proposition that the secular courts have no competence to review the employment-related claims of ministerial employees against their employing faith communities. Barring a Salvation Army employee’s Title VII claim, the Fifth Circuit, in creating the ministerial exception nearly fifty years ago, relied heavily on preserving church autonomy and not even peeking over the “wall of separation” between church and state.
As stated in its more basic form, for the ministerial exception to bar an employment discrimination claim, two factors must be present: (1) the employer must be a religious institution, and (2) the employee must be a ministerial employee. See, Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir. 2007). Although ministerial it is in name, the exception has evolved and has been applied to some lay employees, seminary professors, hospital workers, press secretaries, musicians, and many others. Generally speaking, while the group of plaintiffs covered by the exception has expanded under the development of case law in this area, the type of claim involved in the application of the exception has remained relatively the same. Discrimination claims, typically under federal civil rights or their state analogs, have dominated the ministerial exception landscape. Hosanna-Tabor v. Equal Employment Opportunity Commission, 565 U.S. 171 (2012) the first case in which the U.S. Supreme Court analyzed the ministerial exception, was no different.
The Plaintiff in Hosanna-Tabor, Cheryl Perich, was a teacher at Hosanna-Tabor Evangelical Lutheran Church and School. In 2004, Perich left on disability and was diagnosed with narcolepsy. In 2005, after being cleared by her doctors to go back to work, the school told her that they already hired her replacement. Ms. Perich informed the school that she planned to file a lawsuit for unlawful discrimination. In response, the school Immediately fired her for “insubordination and disruptive behavior”.
Ms. Perich then sued for disability discrimination under the Federal Americans with Disabilities Act. When the U.S. Supreme Court weighed in on the ministerial exception with its opinion in Hosanna-Tabor, it upheld the right of religious institutions “to select and control who will minister to the faithful,” and thus barred “suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.” 132 S.Ct. 694, at 696, 698, 181 L. Ed. 2d 650 (2012) (emphasis added). However, the court refrained from addressing ministerial exception jurisprudence as a whole and did not articulate a test or bright-line standard for determining who qualifies as a ministerial employee. Rather, the Court limited its decision to the facts of the case before it, determining that the plaintiff in Hosanna-Tabor, Ms. Perich, was a ministerial employee.
The Supreme Court identified numerous facts related to Perich’s employment and explained how those factors contributed to the conclusion that she was a ministerial employee. The Court noted as follows:
- The school “held Perich out as a minister.” Hosanna-Tabor, 132 S.Ct. at 707.
- Perich was issued a “diploma of vocation” according her the title “Minister of Religion, Commissioned.” Id.
- In a supplement to the diploma, the congregation undertook to periodically review Perich’s “skills in ministry” and “ministerial responsibilities,” and to provide for her “continuing education as a professional person in the ministry of the Gospel.” Id.
- Perich “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.’” Id.
- The church, “prayed that God ‘bless [her] ministrations to the glory of His holy name.” Id.
The Court also noted that Perich’s “title as a minister reflected a significant degree of religious training, followed by a formal process of commissioning.” Id. She had to complete eight college-level courses in subjects such as biblical interpretation, church doctrine, and the ministry of the Lutheran teacher. Id. After finishing the schooling, she had to “obtain the endorsement of her local Synod district by submitting a petition that contained her academic transcripts, letters of recommendation, personal statement, and written answers to various ministry-related questions,” and then pass an oral examination at a Lutheran college. Id. Perich, as a result of her training and commission, was granted tenure, and “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.’” Id.
Finally, the Court reviewed Perich’s job duties, noting that she taught her students religion four days a week, and led them in prayer three times a day. Id. “Once a week, she took her students to a school-wide chapel service, and about twice a year she took her turn in leading it, choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible.” Id. During her last year of employment, Perich also led her fourth graders in a brief devotional exercise each morning. Id. Considering all of the above, the formal title given to 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, the Court concluded she was a minister covered by the ministerial exception. Id.
Ultimately, the Court found that the ministerial exception was deeply rooted in both the Free Exercise and Establishment Clauses of the First Amendment. Noting the two clauses “often exert conflicting pressures,” the Court explained that was not the case with the ministerial exception because “[b]oth Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.” In adopting the application of the ministerial exception the Court expanded its application to individuals outside the “head of a religious congregation.”
More recently, the U.S. Supreme Court in Our Lady of Guadalupe Sch. v. Morrissey-Berru, again addressed the ministerial exception, also in the context of the federal discrimination claims of two parochial school teachers. 140 S. Ct. 2049 (2020). The plaintiffs in Guadalupe taught religion, as well as other secular topics at their respective schools. Guadalupe, 140 S. Ct. at 2057-59. The teachers were “elementary school teachers responsible for providing instruction in all subjects, including religion, [and] were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the [Catholic] faith.” Id. at 2066. One of the plaintiff’s “prepared her students for participation in the Mass and for communion and confession” and “occasionally selected and prepared students to read at Mass.” Id. at 2057. One of the plaintiffs “prayed with her students. Her class began or ended every day with a Hail Mary” and “[s]he led the students in prayer at other times, such as when a family member was ill. And she taught them to recite the Apostle’s Creed and the Nicene Creed, as well as prayers for specific purposes, such as in connection with the sacrament of confession.” Id.
The other plaintiff in Guadalupe, “was required to teach religion for 200 minutes each week and administered a test on religion every week. She used a religion textbook selected by the school’s principal, a Catholic nun.” Id. at 2059. The religious curriculum covered by this teacher included “the norms and doctrines of the Catholic Faith, including . . . the sacraments of the Catholic Church, social teachings according to the Catholic Church, morality, the history of Catholic saints, [and] Catholic prayers.” Id. (internal quotations omitted).
In Guadalupe, “[t]here [was] abundant record evidence that… both [teachers] performed vital religious duties,” including religious instruction in the Catholic faith. Id. The Court determined that the employees fell within the First Amendment’s ministerial exception, even though the employees’ “titles did not include the term ‘minister’ . . . [because] their core responsibilities . . . were essentially the same” as ministers.
After Gaudalupe, are all employees of a religious institution exempt from the protection of state and federal anti-discrimination law?
Justice Alito’s majority opinion in Guadalupe has left many to wonder if the ministerial exception now covers anyone who is employed by a religious institution regardless of their role in the institution. A careful reading of Guadalupe shows that while the Court may have again expanded the reach of the exception, the exception is still intact and has not been converted to a blanket prohibition of discrimination claims against religious institutions.
The Kentucky Civil Rights Act and the Ministerial Exception as interpreted by Kentucky Courts
Kentucky adopted the ministerial exception in the context of a claim made under the Kentucky Civil Rights Act in 2014. In Kirby v. Lexington Theological Seminary, 426 S.W.3d 597, 607 (Ky. 2014), the Kentucky Supreme Court concluded: “The Constitution demands recognition of the ministerial exception, so we now incorporate the ministerial exception into our jurisprudence.” Since Kirby, like with many aspects of the Commonwealth’s jurisprudence relating to anti-discrimination laws, courts in Kentucky have hewed closely to the federal courts’ interpretation of ministerial exception.
The ministerial exception, while a long-lived doctrine in employment law, is continuing to evolve and there seems to be a push among courts, at least in federal jurisdictions, to expand its application. Over the next few years, we will likely find out if the exception will swallow up all those employed at religious institutions from the highest placed clergy to the lay-employees that play no role in religious instruction or guidance. But, for now, the application of the ministerial exception remains a very fact-based endeavor and ultimately turns on the specifics of each situation.