The "Ministerial Exception"
Bill Long 10/11/06
Courts in Disarray--With Thanks to Prof. Ross Runkel
The wonderful four-part series in the New York Times, ending today, in which Diana B. Henriques explores the allegation made by conservative Christians that religious organziations/Christians are discriminated against for their faith, has one article (Monday, October 9) devoted largely to employment discrimination and religious bodies. Central to this issue is how the anti-discrimination laws in Title VII of the Civil Rights Act of 1964 (prohibiting discrimination against a person for race, gender, national origin) dovetail with the traditional privileges of churches to hire and define the work environment of their ministers without regard to state interference. More specifically, courts have held that the secular organs of adjudication (federal/state courts) may not enter into doctrinal disputes. For example, courts are ill-equipped to decide if a minister who was fired for losing his faith really, indeed, lost his faith. Courts are incompetent to determine which of two competing factions in a church is the true doctrinal heir of the founder or the larger denomination.
In addition, courts have held that they cannot intervene in the interior lives of churches with respect to administrative matters. In describing this exemption, one court said recently:
"Even if the suit does not involve an issue of religious doctrine, but concerns merely the governance structure of the church, the courts will not assume jurisdiction if doing so would interfere with the church's management" Tomic v. Catholic Diocese of Peoria, 442 F3d 1036, 1038 (7th Cir., 2006).
Thus we have two exemptions or two instances where the courts, arms of the state, will refuse to enter into the work of the church: (1) where church doctrine or belief is at stake; or (2) where interference with church management is in view. The latter exemption is popularly known as the "Ministerial Exception." Even though this is the clear "law of the land," courts have recently found it much more difficult to decide if claims brought under a civil rights statute alleging discrimination (such as age discrimination or sexual harassment/retaliation) should survive summary judgment (i.e., proceed towards trial) and thus supersede or lie outside of the ministerial exception. The purpose of these next few essays is to explore five recent cases (since 2004) which deal with these issues.
The Tomic Case
I begin with this case handed down in April 2006 (certiorari denied by the US Supreme Court last week) because it contains one of the clearest expositions of the historic ministerial exception. Written by Judge Richard Posner, the Tomic case has to do with an alleged act of age discrimination. Tomic was employed as music director and organist both of a Roman Catholic Church in Peoria as well as the Peoria diocese itself. He was to assist in planning and celebrating various liturgical events in the life of the congregation and the diocese. A dispute with the bishop's assistant concerning Easter music led ultimately to Tomic's dismissal. At the time he was 50 years old, and he was replaced by a person several years his junior. He sued under the ADEA (civil rights law making discrimination due to age illegal), alleging that he was improperly fired. The District Court dismissed his suit, citing the ministerial exception--that by examining the reasons for his termination the court would be entering into the management decisions of a religious body--which the religious exception prohibited it from doing.
On appeal, a three-judge panel of the 7th Circuit affirmed the lower court. But in getting to affirmance, Judge Posner laid out the law behind the ministerial exception in a compendious and clear fashion. After reviewing the "belief" exemption, Posner stated the rationale for the church management exemption:
"that in investigating employment discrimination claims by ministers against their church, secular authorities would necessarily intrude into church governance in a manner that would be inherently coercive, even if the alleged discrimination were purely nondoctrinal," Id. at 1039.
Lest one think that the ministerial exception doctrine declared a "hands-off policy" between church and state for all minister-related decisions (and, by the way, courts have held that choir directors, communication directors, chaplains, as well as pastors are ministers for the sake of the exception), Posner points to instances where a court may have to intervene to give the keys of the church to one of two disputing factions or to determine whether the hierarchical body (diocese, presbytery) or local body has control over the property, but generally the state keeps its distance when it has to do with internal management of congregations.
One might think, however, that if the church had no official doctrine banning discrimination by sex, race or age, then the secular courts could easily step in and enforce the civil rights laws oin these areas. But, as Posner points out, this ought not to be the case, since churches will often defend decisions that a secular court would interpret as harassment on the basis of religious doctrine or hiring decisions.
He then gave us the following scenario/hypothetical. If a court permitted Tomic's suit to go on against the diocese, the pleadings would look something like this: Tomic would allege age discrimination; the Church would answer saying that firing was because of a difference of opinion on musical style; Tomic would respond that this was a mere pretext; the church would rejoin that the decision was a decision to manage its employees and resources. Thus, any court that wanted to adjudicate this dispute would find itself quickly tied up in a thicket of difficulties--either theological (what is good church music?) or managerial (when can a church replace its music director?)
Thus, according to Posner, Tomic "forfeited" his rights under the Civil Rights Act of 1964 by being a "minister" for the purposes of the ministerial exception to that Act. Unlike the person who tunes the organ, or the person who sweeps each Saturday night around the organ to make sure that the space is clean, Tomic was a minister--making choices having to do with the expression of and cultivation of faith. The church is therefore protected by the ministerial exception and immune to suit under the ADEA.
Even though Posner lays out the issues with admirable clarity, if you think that this "solves" the issue, you have another think coming. In fact, in 2004, two cases, both from the Presbyterian Church, came up with different answers. The next essay considers one of those cases.
Copyright © 2004-2008 William R. Long