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Church Abuse of “Ministerial Exception”: “Good For The Goose”

A.  Introduction

Recently I have “vented” with other attorneys who have shared the experience of representing former parochial school teachers and administrators within the Catholic Church.  We have all heard intoned on behalf of “the Arch,” i.e., the respective Archdiocese, “Hosanna-Tabor,” “Hosanna-Tabor.”  With its limitless resources and the Hosanna-Tabor “get out of jail free” card, the Church’s abuse of its employees comes as no surprise.

B.  The Problem: “Absolute Power Corrupts”

In Hosanna-Tabor Evangelical Church and School v. EEOC (2012) 565 U.S. 171,SCOTUS recognized, but failed to define, the common law “ministerial exception,” deriving from the First Amendment, to application of federal employment nondiscrimination statutes.[1]  As characterized by commentator Professor Mark Cordes,

“…[T]he underlying concern with the ministerial exception is not interference with employment decisions per se, but interference with a religious institution’s ability to shape its faith and mission.”[2]

Those cases in which the Catholic Church has invoked the so-called “ministerial exception” form of immunity from generally applicable employment nondiscrimination laws comprise sagas of horrors analogous to the myriad sexual molestation cases against the Church which finally came to court, except that, in the employment cases, the State has enabled the Church to play a “get out of jail free” card, i.e., application of “ministerial exception,” pretty much to any and all of the Church’s employees under the loose standard that they all assist “in conveying the church’s message.”  SCOTUS’s recognition of this judicially-created ministerial exception to federal nondiscrimination statutes in its 2012 Hosanna-Tabor decision, while failing to define the contours or requisite criteria for application of the exception, spawned legion of unremedied arbitrary and discriminatory personnel actions against good and faithful servants of the church who likely were unaware that, as the church’s employees, not only would they fail to benefit from any special blessings but, in fact, also were actually deprived of the usual employment civil rights protections accorded to citizens of all non-ecclesiastical employer institutions.[3]

C.  Legal Community’s Broad Condemnation of Hosanna-Tabor:  “A Subversion of America’s Egalitarian Promise”

The Hosanna-Tabor decision has, indeed, been roundly condemned by legal scholars who have expressed consternation at both the unanimity of, and also absence of guidance provided by, the opinion.[4]  Most notably, the Court failed to define a “minister” or even to provide definitive criteria or analysis to assist lower courts in applying such critical term.  As argued by Professor Katherine Hinkle in What’s in a Name? The Definition of ‘Minister’ in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 34 Berkeley Journal of Employment & Labor Law (2013), the Court in Hosanna-Tabor rejected the prevailing lower court “primary duties” test and left instead a “piecemeal, case-by-case analysis” of the plaintiff’s “role in a religious organization guaranteed both to increase ‘excessive entanglement’ with religion” and also “to create a class of people to which employment laws do not apply [citation omitted],” worse yet, a “class [that] is ill-defined and fluid [citation omitted].”[5]  Moreover, remarks Hinkle,  the Court in Hosanna-Tabor failed to apply the Ninth Circuit’s alternative means to apply the ministerial exception, the so-called “religious motivation requirement,” which allows the court to respect the foundation of the exception while still protecting employees.  Pursuant to the religious motivation doctrine, there is no Establishment Clause justification to apply the exception where “nothing in the presentation or defense of the claims would require the court to examine religious doctrine.”  Ibid., at 339.[6]

Lupu and Tuttle, defenders of the Hosanna-Tabor decision, dispute neither that “in operation, the ministerial exception tends to be detrimental to women teachers in religious schools” nor that the “overt exclusion” of “explicitly gender-based priesthoods” “sends the stark, patriarchal message that women are wholly unqualified for the socially prestigious position of the priesthood.”  Lupu & Tuttle, supra, 1310-1312.  Notwithstanding their protracted engagement of the opposition critique of the decision, Lupu and Tuttle appear impervious to realization that, other than a sacrament of ordination to priesthood (or other religious entity equivalent thereto), it is impossible to demarcate a boundary as to “which or what” religious entity employees are “engaged in transmission of the faith,” hence, the veritable “exception that swallows the rule,” and, consequently, Hosanna-Tabor is a “mysterious, tragic, incoherent [and] dangerous move toward subversion of America’s egalitarian promise.” Cf. Lupu & Tuttle, supra, 1314.

D.  A “Feminist” Plea for Estoppel As To Application of The Ministerial Exception Against Female Plaintiffs By Male Chauvinist Religious Entities

While Lupu and Tuttle may, or may not, be correct, at this time, that those “explicitly gender-based priesthoods” of the Roman Catholic, Orthodox Jewish and Islamic faiths “are so deeply-embedded in large and ancient faiths that it may seem a kind of folly to challenge those head-on” (Lupu & Tuttle, supra, 1312), [7] there is no good reason why courts should not judicially estop such sexist institutional faiths from invoking any “ministerial exception” against female employees who are explicitly excluded from true ministry.[8] Associations of Roman Catholic women fighting for the right to ordination[9] note, in concurrence with Corbin, that such exclusionary rules, particularly when sanctioned by the State, convey messages of inferiority and perpetuate subordination of the stigmatized group(s).  Corbin, supra, 2035-2036.[10]  As Professor Jane Rutherford explains in Equality As the Primary Constitutional Value: The Case for Applying Employment Discrimination Laws to Religion,

“Governmentally condoned discrimination by religious employers harms those excluded in a multitude of direct, serious, and tangible ways.  The discrimination infringes on free exercise rights, chills religious and political participation and speech and denies equal protection of the laws. [footnote omitted].”

81 Cornell Law Review 1049, 1122 (1996).  Rutherford argues that judicial analysis of the ministerial exception has omitted the “change in meaning of the First Amendment occasioned by adoption of the Fourteenth Amendment,” “which elevated equality to the primary constitutional value.”  Ibid., 1123.[11]  According to Rutherford, proper consideration of the constitutional equality principles results in the following systematology:

“If religious doctrine or faith does not require the discrimination, then religious entities should be subject to the full range of remedies traditionally available…[R]eligious employers should be subject to all the pressure the government can legally exert to discourage the illegal conduct.”

Ibid., 1124.  As Jesuit Fr. Agbonkhianmeghe Orobator of Nigeria stated this past International Women’s Day, in allusion to the Boko Haram kidnappings, “Any society that relegates women to a secondary status…creates propitious conditions for gender-based violence and morally depraved ideologies to emerge and thrive.”[12],[13]

E.  Conclusion: Appeal to “Lady Justices” To Re-Take the Pedestal

My disappointment at the unanimity of Hosanna-Tabor (inclusive of Ginsburg, Kagan and Sotomayor) has plainly displayed my unrealistic expectations of the three lady justices upon whose previous dissents I have often remarked.  But reconciling constitutional values of equal protection and religious liberty is not an insurmountable task.  And surely it should be obvious, and as soon as practicable the Court should readily announce, that no denomination can “have its cake and eat it too,” i.e., explicitly exclude women, as a gender, from ordained ministry, yet still invoke “ministerial exception” in affirmative defense to their public policy wrongful termination and other employment claims.


[1] The 2012 decision constituted a departure from the then-prevailing “neutrality” paradigm and, in some commentators’ opinion, announced “a constitutional right on steroids.”  See, Gedicks, Frederick Mark, Narrative Pluralism and the Doctrine Incoherence in Hosanna-Tabor, 64 Mercer Law Rev. 405, 429 (2013).  Gedicks also describes the unanimous decision as a “jurisprudential train wreck” and a “church autonomy uber-right.”  Ibid., 433-434.  Pre-Hosanna-Tabor’s doctrine of “church autonomy for ‘internal matters,’” the prevailing standard merely inquired whether the issue involved ecclesiastical determinations and, only if it did, was the claim barred.  Lupu and Tuttle, The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 20 Lewis & Clark Law Rev. 1265 (2017).  Other commentators have alluded to Chief Justice Roberts’s “broad, bleak and blank check” for discrimination and other unlawful employment actions by religious entities.   Griffin, Leslie C., Divining the Scope of the Ministerial Exemption, 39 ABA Human Rights Magazine No. 2 (2013).  On a more practical level, the Alliance for Justice, in response to Hosanna-Tabor, noted, “this holding will make it difficult for teachers to speak out against misdeeds within religious institutions for fear of retaliation.” 2/17/12. [Emphasis supplied]  As widely noted, the Roman Catholic Church’s happy reaction to Hosanna-Tabor was to revise all teacher employment contracts to detail the religious ministry underlying all their duties.

[2] Cordes, The First Amendment and Religion After Hosanna-Tabor, 41 Hastings Constitutional Law Quarterly 299, 332 (2014).  Cordes refers to this as the “autonomy interest.”

[3] The Fifth Circuit first enunciated the notion of the “ministerial exception” when it dismissed Mrs. Billie McClure’s equal pay lawsuit against Salvation Army in 1972.  McClure v. Salvation Army (5th Cir. 1972) 460 F2d 553.

[4] In The Mystery of Unanimity in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC,.,20 Lewis & Clark Law Review 1265 (2017), law scholars Ira C. Lupu and Robert W. Tuttle review  and categorize the proliferative critiques of the 2012 decision, including Leslie Griffin’s The Sins of Hosanna-Tabor,  88 Indiana Law Journal 981 (2013),. which argues that the Court profoundly misinterpreted the First Amendment to mistakenly protect religious institutions’ religious freedom at the expense of their religious employees barred from employment litigation of rights enjoyed by secular employees.  Griffin therein questions Hosanna-Tabor’s “presupposition that religious institutions are constitutionally entitled to disobey the law.”  See also, Corbin, Caroline Mala, The Irony of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 106 Northwestern Univ. Sch. Of Law 951 (2012), in which Professor Corbin dually notes that the Court’s deference approach causes more “Establishment” problems than does a “neutral principles of law” approach and also that judicial discernment to identify a “minister” entangles the court in religious doctrine far moreso than adjudication of employment discrimination, retaliation, or pretext claims.  Indeed, to the extent that subsequent courts might construe Hosanna-Tabor as privileging or authorizing expansion of the ministerial exception beyond what had previously been recognized, to provide religious entities with “immunity” to violate laws of general application, including nondiscrimination, wrongful termination in violation of public policy, or other statutory or common law pertaining to the employment relationship, such interpretation to provide immunity itself runs afoul of both the Establishment Clause and the Fourteenth Amendment.  As has been noted by Caroline Mala Corbin, Above the Law? The Constitutionality of the Ministerial Exemption from Antidiscrimination Law, 75 Fordham L. Rev. 1965, 2014, note 3, supra, (2007), so construed, application of the ministerial exception amounts to State “sanction” of discriminatory or otherwise unlawful employment practices; indeed, one could argue, as Corbin has, that “the ministerial exception has inhibited the development of religious doctrine towards more egalitarian beliefs.”

[5] Accordingly, Hinkle notes that the ruling in Hosanna-Tabor represents a “drastic shift in prioritization of the value of anti-discrimination laws.”

[6] Instead, the Court in Hosanna-Tabor “astonishingly” held that a religious institution’s firing of a minister for nonreligious as well as religious reasons is protected by the First Amendment.  See, Griffin, The Sins of Hosanna-Tabor, supra, 984. See interesting argument, with references to European tradition, at Ioanna Tourkochoriti, Revisiting Hosanna-Tabor v. EEOC: The Road Not Taken, 49 Tulsa Law Rev.  47, 70 (2013) (“Hosanna-Tabor results in a rule of the stronger to the detriment of the weaker, a situation where might makes right, contrary to universalizability rule and any conception of justice…”).  According to Tourkochoriti, “Interpreting the ministerial exception as covering only matters of religious doctrine that the courts are unable to control is possible and appropriate.” Ibid., 97.

[7] While the Hosanna-Tabor decision favored a “functional,” rather than “title,” analysis and, as noted by Cordes, scrutiny of the decision indicates that such distinction derived from recognition that “many religious traditions do not have ministers or formal leaders, nor do many traditions have ordination or a comparable process for leaders”  Ibid., 339 [emphasis supplied], the Roman Catholic Church itself has staunchly rejected a “functional analysis” of ministry, insisting, instead, on the “ontological sacramental reality” of the [male] cleric. Cardinal Ratzinger, commenting in the Vatican press on the Vatican’s 1997 Instruction on Certain Questions Regarding the Non-Ordained Faithful in the Sacred Ministry of Priests. This author submits, that where the religious entity does subscribe to a formal ordination process, reserves governance to those ordained, and explicitly excludes from the ordained those within any “protected classification” under generally applicable nondiscrimination statutes, then, therefore, that religious entity,  should be “estopped” from invoking the “ministerial exception” as an  affirmative defense in any employment litigation on the part of such excluded person.

[8] While Professor Griffin astutely comments that “One irony and injustice in the ministerial rule is that  female employees of denominations that do not ordain women suddenly became ministers at the moment they filed a lawsuit” (Griffin, supra, 1007), this author is not familiar with any precedent dealing with such argument of estoppel against such denominations with respect to invocation of the ministerial exception affirmative defense.  “Although some Roman Catholic, Muslim and Orthodox Jewish women may not become priests, imams or rabbis and perform their jobs with the full understanding that they cannot be ministers, the courts and churches confer ministerial status upon them just long enough to keep their lawsuits out of court. [footnote omitted].”  Griffin, supra, 1008.

[9] Roman Catholic Womenpriests is an international movement within the Roman Catholic Church whose mission is to “prepare, ordain in Apostolic Succession and support primarily women who are called by the Holy Spirit and their communities to a “renewed priestly ministry rooted in justice and faithfulness to the Gospel.”  Association of Roman Catholic Women Priests is a “Spirit-led movement standing for Gospel equality, nonviolence, justice and a people-empowered Church”.  FutureChurch is a national coalition of parish-centered Catholics “striving to educate fellow Catholics about the seriousness of the priest shortage, the centrality of the Eucharist (Mass), and the systemic inequality of women in the Catholic Church.”  Women’s Ordination Worldwide is an ecumenical network of national and international groups whose primary mission is the admission of Roman Catholic women to all ordained ministries. The Roman Catholic Church has ex-communicated all “ordained” women priests, as well as the priests ordaining them.

[10] “Indeed, the diversity of expression that is the raison d’etre for constitutional protection of expressive associations cannot be achieved without, and in fact presumes, equality of opportunity.”  Ibid., 2035, note 466.

[11] “To the extent that the religion clauses conflict with the Fourteenth Amendment demands of equality, those provisions must yield.”  Ibid., 1124.

[12] The Vatican disallowed conduct of this year’s conference, “Why Women Matter,” in Vatican City because of former President of Ireland Mary McAleese’s participation as speaker, due to her outspokenness on the issues of women’s ordination and gay rights.  Commenting upon this, Kate McElwee, Executive Director of Women’s Ordination Conference, noted an “opportunity to bring the Vatican’s role in the structural and spiritual oppression of women” into the open.

[13] Dr. Ejikemeuwa J. O. Ndubisi of the Department of Philosophy and Religious Studies at Tansian University in Nigeria asks the question, “What are the effects of women’s exclusion from the Roman Catholic priesthood on the contemporary society?”  He answers it very simply: “The fact that stares everyone in the face is that the exclusion of women from Roman Catholic priesthood has some negative effects on the contemporary society….[I]t renders the Church as a model justification for the view of women as sub-human being….The exclusion of women from ordination is a serious crime against humanity.”  Ndubisi, 21 IOSR Journal of Humanities and Social Science 29 (2016).