The 9th Circuit’s non-functional approach to the ministerial exception

This term the U.S. Supreme Court will address the ministerial exception -- a lesser-known but vitally important religious liberty doctrine. Courts have long said, and the Supreme Court has unanimously confirmed, that the First Amendment protects the right of religious groups to select and control their ministerial employees without government interference. Recently, however, the 9th U.S. Circuit Court of Appeals has cut back on the ministerial exception in a way that is out of step with the rest of the country and denies equal treatment of the law to minority religions. The Supreme Court should reject the 9th Circuit's approach and ensure that religious liberty is equally available to all faiths.

The Ministerial Exception

For decades, courts around the country have recognized that the First Amendment forbids applying employment laws to second-guess a religious group's choice of who will be its ministers. So, for example, if a church removes a paid clergy from office, the removed clergy generally can't ask a court for reinstatement or damages by claiming the church violated employment discrimination laws. To allow such a lawsuit would inevitably entangle the courts in saying yea or nay to a religious group's choice of minister -- a clear-cut violation of the First Amendment. Over the years, this doctrine came to be known as the "ministerial exception."

In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012), a unanimous Supreme Court agreed with the lower-court consensus and blessed the ministerial exception. Looking to constitutional first principles, the court confirmed that the free exercise and establishment clauses of the First Amendment work together to "bar the government from interfering with the decision of a religious group to fire one of its ministers." The court thus held that a Lutheran church could not be sued for disability discrimination for firing a "called teacher" who taught a mix of secular and religious subjects to children at the church's Lutheran private school.

But Hosanna-Tabor left much unanswered. The court easily concluded that the plaintiff school teacher there was a minister because she not only taught religious subjects but also had a formal religious title, had received formal religious training, and held herself out as a minister. But what about a teacher or a choir director or a counselor who performs important religious functions but doesn't have a spiritual title, religious credentials, or some of the other characteristics of the school teacher in Hosanna-Tabor?

The lower courts are now split on this question, and the Supreme Court has granted review of two companion 9th Circuit decisions to resolve the split.

Function vs Resemblance

Lower courts have split into two camps over how to determine who is a ministerial employee.

The first approach follows Justice Samuel Alito's concurring opinion in Hosanna-Tabor, joined by Justice Elena Kagan. Justices Alito and Kagan argued that "courts should focus on the function performed by persons who work for religious bodies." Since different faiths have varying beliefs about who can fill an important religious role, they explained, the ministerial inquiry should extend to those employees "whose functions are essential to the independence of practically all religious groups," like performing an important role in worship or teaching the tenets of the faith to the next generation.

That was the approach taken by nearly every federal court of appeals for four decades before Hosanna-Tabor was decided in 2012. And since Hosanna-Tabor, the overwhelming majority of courts to consider the issue -- including five federal courts of appeals and two state supreme courts -- have agreed with Justices Alito and Kagan and looked primarily to function. Indeed, several courts have applied the ministerial exception to employees based solely on the employee's important religious functions.

The 9th Circuit and California Court of Appeal broke from this consensus and held that an employee must have additional trappings of ministerial status to qualify as a minister. In the first case, Biel v. St. James School, 911 F.3d 603 (9th Cir. 2018), the 9th Circuit held that a Catholic school teacher was not a minister. Although the teacher performed an important religious function by teaching the tenets of Catholicism to her students, the 9th Circuit panel did not "read Hosanna-Tabor to indicate that the ministerial exception applies based on this ... characteristic alone."

The 9th Circuit doubled down on its rejection of the functional approach in Morrissey-Berru v. Our Lady of Guadalupe School, 769 F. App'x 460 (9th Cir. 2019), holding that the ministerial exception did not apply to another Catholic school teacher with "significant religious responsibilities."

The California Court of Appeal followed suit in Su v. Stephen S. Wise Temple, 32 Cal. App. 5th 1159 (2019). Invoking Biel, the California court declined to apply the exception to a synagogue's teachers who were charged with "teaching Jewish rituals, values, and holidays, leading children in prayers, celebrating Jewish holidays, and participating in weekly Shabbat services." The court held that the preschool teachers were not ministers because, "[u]nlike [Cheryl] Perich" (the teacher in Hosanna-Tabor), the preschool teachers were "not given religious titles," were "not ordained," and did not undergo "any formal Jewish education or training."

Which Approach Should the Supreme Court Adopt?

Now that the Supreme Court has granted review in the two 9th Circuit cases, the court must decide which approach to follow. Will the court adopt a functional approach to determining ministerial status, or will the court adopt a "resemblance-to-Perich test" (as Judge Ryan Nelson memorably put it, dissenting from the denial of en banc rehearing in Biel)?

The court should adopt the functional approach for a simple reason: a religious group's First Amendment protection shouldn't turn on how similar its faith is to that of the Lutheran church.

The thrust of the 9th Circuit's analysis in Biel was that the ministerial exception covers only those employees who sufficiently resemble Perich, the "called teacher" at the Lutheran school in Hosanna-Tabor. But that approach effectively sets a single denomination as the standard for what practices and beliefs are worthy of constitutional protection and favors groups within the Protestant tradition.

As Justices Alito and Kagan explained, our country is home to a thriving diversity of faiths representing "virtually every religion in the world." Each of those faiths has "different views on exactly what qualifies as an important religious position." Many faiths -- especially minority faiths -- have no concept of "calling" and ordination, do not confer formal religious titles, and do not require the teachers of their faith to undergo formal theological training.

The First Amendment should be equally available to all faiths -- perhaps especially to minority religions. That is why courts have overwhelmingly adopted the functional approach to the ministerial exception, which puts all religions on an equal footing. The Supreme Court should correct the 9th Circuit's error and ensure that the ministerial exception's guarantee of religious autonomy extends to all religious groups. 

Disclosure: the authors filed an amicus brief in support of the petition for certiorari in Our Lady of Guadalupe School and St. James School.