February 02, 2012
Cases involving conflicts between religious autonomy and other rights such as non-discrimination and respect for private life seem to be gaining more and more prominence in different parts of the world. One recent example is the U.S. Supreme Court’s landmark ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. The case concerned an employment discrimination suit filed by a teacher challenging her church’s decision to fire her. For the first time, the U.S. Supreme Court deals with what is known as the “ministerial exception.” The exception, the Court holds, “ensures that the authority to select and control who will be minister to the faithful – a matter ‘strictly ecclesiastical,’ – is the church’s alone.”
Although the European Court may be a “comparative newcomer,” cases involving similar issues have been on the way up in Strasbourg. Over the last few years, the Court has decided in several cases against Germany: Obst, Schüth, Siebenhaar and, most recently, Baudler, Reuter and Müller. In these cases, applicants with a variety of roles (including, organist, teacher and ministers) within different churches have complained about violations of their right to respect for private and family life, freedom of religion, and access to courts.
How has the U.S. Supreme Court approached the controversy in Hosanna-Tabor? And, in which ways has the European Court of Human Rights dealt with similar issues? In this post, I briefly look at these questions.
The U.S. Supreme Court in Hosanna-Tabor
Cheryl Perich was a teacher in the Hosanna-Tabor Evangelical Lutheran School. Upon return from a disability leave (she had developed narcolepsy), she found out that the school wanted her resignation. Perich refused to resign and threatened to sue. In the end, the school fired her, arguing that the church required its adherents to resolve their disputes internally. Perich sued, alleging she had been fired in violation of the Americans with Disabilities Act.
The issue before the U.S. Supreme Court was whether the First Amendment of the U.S. Constitution bars employment discrimination action when the employer is a religious group and the employee is one of its ministers. The first question the U.S. Supreme Court addressed was whether there was a “ministerial exception” – as Courts of Appeals have been recognizing over the last 40 years – grounded in the First Amendment. The second question was whether the exception applied in the case. The answer to both questions was “yes.”
In essence, the “ministerial exception,” as developed by U.S. Court of Appeals, precludes the application of civil rights legislation to claims regarding employment relationships between a religious association and its ministers. In Hosanna-Tabor, the U.S. Supreme Court recognizes, for the first time, that there is such an exception. By imposing an unwanted minister upon a church, the Court asserts, the state violates both the Establishment and Free Exercise Clauses of the First Amendment. The former “prevents the government from appointing ministers”; the latter from “interfering with the freedom of religious groups to select their own.” The U.S. Supreme Court makes sure, however, to limit the reach of the ministerial exception to employment discrimination suits: “We express no view on whether the exception bars other types of suits…”
The trickiest part is probably defining the scope of the ministerial exception. As Stanley Fish says in a post commenting on Hosanna-Tabor, “the question quickly becomes one of boundaries: how far does the ministerial exception extend?” To whom, – Fish asks – does the ministerial exception apply? And who – he further asks – draws the line distinguishing between those employees performing religious organizations’ “core activities” from those playing a “supporting role”? Is it the state or the religious associations? The Establishment Clause makes the whole business particularly challenging: is it at all possible for U.S. courts to decide whether an employee qualifies as a minister without getting involved in doctrinal matters? Justice Thomas, concurring in Hosanna-Tabor, believes that the question “is itself religious in nature” and suggests deferring to a “religious organization’s good-faith understanding of who qualifies as its ministers.”
At the same time, if the class of “ministers” is defined in a way that leaves considerable leeway to religious associations, this may risk excluding a wide class of individuals from protection against discrimination in the workplace. Commenting on the U.S. Supreme Court’s ruling, Jack Balkin argues in his blog Balkinization: “The more categorical the rule that exempts employment decisions from legal scrutiny, the narrower the class of “ministers” will have to be to avoid manifest injustices.” What is more, how to define the class of “ministers” in a world with such a wide variety of religious roles in different religions? In his concurring opinion, Justice Thomas warns that fashioning a definition of “minister” through a “bright-line test” risks “disadvantaging those religious groups whose beliefs, practices, and membership are outside of the ‘mainstream’…”
In the end, the U.S. Supreme Court announced it would stay away from adopting a “rigid formula” to determine when someone qualifies as a minister. It was enough to conclude that Perich did, given the circumstances of her employment (factors included: “formal title given … by the Church, substance reflected in that title, her own use of that title, and the important religious functions she performed for the Church”). As it may be clear by now, the whole fuss around who is actually a minister is not at all trivial: if a person qualifies as a minister within the meaning of the exception, the First Amendment requires rejection of the employment discrimination suit against the religious employer. One legal commentator has called the U.S. Supreme Court’s version of the ministerial exception the “absolute” ministerial exception, as it eschews “all attempts at balancing.”
The European Court of Human Rights in Obst, Schüth, and Siebenhaar
The European Court of Human Rights, on the other side, has required domestic courts to balance both parties’ rights, taking into account the specific nature of the post. In a recent Article entitled “Religious Autonomy and Labor Law: A Comparison of the Jurisprudence of the United States and the European Court of Human Rights,” Carolyn Evans and Anna Hood emphasize that the approach the ECtHR appears to be developing is “one in which the courts below must ensure that fair consideration has been given to all of the relevant interests” (p. 26). In Obst, Schüth, and Siebenhaar the Court has indeed made sure that all relevant factors have been considered and that a careful balancing of the interests involved has been carried out (see also Saila’s post here). This explains the different outcomes in the three cases. While the Court did not find a violation in Obst and Siebenhaar, it did so in Schüth. The Court believed the German courts had made a good job at striking a fair balance between the rights of Obst (respect for private life) and Siebenhaar (freedom of religion), on one side, and the rights of their respective churches, on the other. In Schüth, however, the Court thought that the German courts overlooked a series of factors, including the applicant’s de facto family life and his limited opportunities of finding another job. As Evans and Hood explain, in Schüth “the applicant succeeded not because the outcome of the cases was unacceptable, but because of a failure by the German courts to engage with the arguments of the applicant.” This, Evans and Hood note, may make things particularly unpredictable to the parties involved “as much will depend on how courts weigh a range of complex factors.”
In short, the U.S. Supreme Court, on the one hand, seems to have gone for a more categorical approach: “When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us.” The ECtHR, on the other hand, remains attached to “ad hoc balancing”, creating less foreseeability (as Evans and Hood point out), but greater flexibility (it is not because someone is a minister that she can automatically be fired without consequences). In any event, the cases brought before both courts show something probably obvious: the great complexities courts face in doing justice in this sort of cases. The tensions and dilemmas they bring up are hardly new. It seems, though, they will become more and more pressing.