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SUPREME COURT OF THE UNITED STATES
HOSANNA-TABOR EVANGELICAL LUTHERAN
CHURCH AND SCHOOL v. EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 10–553. Argued October 5, 2011—Decided January 11, 2012
Petitioner Hosanna-Tabor Evangelical Lutheran Church and School is
a member congregation of the Lutheran Church–Missouri Synod.
The Synod classifies its school teachers into two categories: “called”
and “lay.” “Called” teachers are regarded as having been called to
their vocation by God. To be eligible to be considered “called,” a
teacher must complete certain academic requirements, including a
course of theological study. Once called, a teacher receives the formal
title “Minister of Religion, Commissioned.” “Lay” teachers, by con-
trast, are not required to be trained by the Synod or even to be Lu-
theran. Although lay and called teachers at Hosanna-Tabor general-
ly performed the same duties, lay teachers were hired only when
called teachers were unavailable.
After respondent Cheryl Perich completed the required training,
Hosanna-Tabor asked her to become a called teacher. Perich accept-
ed the call and was designated a commissioned minister. In addition
to teaching secular subjects, Perich taught a religion class, led her
students in daily prayer and devotional exercises, and took her stu-
dents to a weekly school-wide chapel service. Perich led the chapel
service herself about twice a year.
Perich developed narcolepsy and began the 2004–2005 school year
on disability leave. In January 2005, she notified the school principal
that she would be able to report to work in February. The principal
responded that the school had already contracted with a lay teacher
to fill Perich’s position for the remainder of the school year. The
principal also expressed concern that Perich was not yet ready to re-
turn to the classroom. The congregation subsequently offered to pay
a portion of Perich’s health insurance premiums in exchange for her
resignation as a called teacher. Perich refused to resign. In Febru-
ary, Perich presented herself at the school and refused to leave until
she received written documentation that she had reported to work.
The principal later called Perich and told her that she would likely be
fired. Perich responded that she had spoken with an attorney and in-
tended to assert her legal rights. In a subsequent letter, the chair-
man of the school board advised Perich that the congregation would
consider whether to rescind her call at its next meeting. As grounds
for termination, the letter cited Perich’s “insubordination and disrup-
tive behavior,” as well as the damage she had done to her “working
relationship” with the school by “threatening to take legal action.”
The congregation voted to rescind Perich’s call, and Hosanna-Tabor
sent her a letter of termination.
Perich filed a charge with the Equal Employment Opportunity
Commission, claiming that her employment had been terminated in
violation of the Americans with Disabilities Act. The EEOC brought
suit against Hosanna-Tabor, alleging that Perich had been fired in
retaliation for threatening to file an ADA lawsuit. Perich intervened
in the litigation. Invoking what is known as the “ministerial excep-
tion,” Hosanna-Tabor argued that the suit was barred by the First
Amendment because the claims concerned the employment relation-
ship between a religious institution and one of its ministers. The
District Court agreed and granted summary judgment in Hosanna-
Tabor’s favor. The Sixth Circuit vacated and remanded. It recog-
nized the existence of a ministerial exception rooted in the First
Amendment, but concluded that Perich did not qualify as a “minister”
under the exception.
Held:
1. The Establishment and Free Exercise Clauses of the First
Amendment bar suits brought on behalf of ministers against their
churches, claiming termination in violation of employment discrimi-
nation laws. Pp. 6–15.
(a) The First Amendment provides, in part, that “Congress shall
make no law respecting an establishment of religion, or prohibiting
the free exercise thereof.” Familiar with life under the established
Church of England, the founding generation sought to foreclose the
possibility of a national church. By forbidding the “establishment of
religion” and guaranteeing the “free exercise thereof,” the Religion
Clauses ensured that the new Federal Government—unlike the Eng-
lish Crown—would have no role in filling ecclesiastical offices. Pp. 6–
10.
(b) This Court first considered the issue of government interfer-
ence with a church’s ability to select its own ministers in the context
of disputes over church property. This Court’s decisions in that area
confirm that it is impermissible for the government to contradict a
church’s determination of who can act as its ministers. See Watson v.
Jones, 13 Wall. 679; Kedroff v. Saint Nicholas Cathedral of Russian
Orthodox Church in North America, 344 U. S. 94; Serbian Eastern
Orthodox Diocese for United States and Canada v. Milivojevich, 426
U. S. 696. Pp. 10–12.
(c) Since the passage of Title VII of the Civil Rights Act of 1964
and other employment discrimination laws, the Courts of Appeals
have uniformly recognized the existence of a “ministerial exception,”
grounded in the First Amendment, that precludes application of such
legislation to claims concerning the employment relationship be-
tween a religious institution and its ministers. The Court agrees that
there is such a ministerial exception. Requiring a church to accept or
retain an unwanted minister, or punishing a church for failing to do
so, intrudes upon more than a mere employment decision. Such ac-
tion interferes with the internal governance of the church, depriving
the church of control over the selection of those who will personify its
beliefs. By imposing an unwanted minister, the state infringes the
Free Exercise Clause, which protects a religious group’s right to
shape its own faith and mission through its appointments. According
the state the power to determine which individuals will minister to
the faithful also violates the Establishment Clause, which prohibits
government involvement in such ecclesiastical decisions.
The EEOC and Perich contend that religious organizations can de-
fend against employment discrimination claims by invoking their
First Amendment right to freedom of association. They thus see no
need—and no basis—for a special rule for ministers grounded in the
Religion Clauses themselves. Their position, however, is hard to
square with the text of the First Amendment itself, which gives spe-
cial solicitude to the rights of religious organizations. The Court
cannot accept the remarkable view that the Religion Clauses have
nothing to say about a religious organization’s freedom to select its
own ministers.
The EEOC and Perich also contend that Employment Div., Dept. of
Human Resources of Ore. v. Smith, 494 U. S. 872, precludes recogni-
tion of a ministerial exception. But Smith involved government regu-
lation of only outward physical acts. The present case, in contrast,
concerns government interference with an internal church decision
that affects the faith and mission of the church itself. Pp. 13–15.
2. Because Perich was a minister within the meaning of the minis-
terial exception, the First Amendment requires dismissal of this em-
ployment discrimination suit against her religious employer. Pp. 15–
21.
(a) The ministerial exception is not limited to the head of a reli-
gious congregation. The Court, however, does not adopt a rigid for-
mula for deciding when an employee qualifies as a minister. Here, it
is enough to conclude that the exception covers Perich, given all the
circumstances of her employment. Hosanna-Tabor held her out as a
minister, with a role distinct from that of most of its members. That
title represented a significant degree of religious training followed by
a formal process of commissioning. Perich also held herself out as a
minister by, for example, accepting the formal call to religious ser-
vice. And her job duties reflected a role in conveying the Church’s
message and carrying out its mission: As a source of religious in-
struction, Perich played an important part in transmitting the Lu-
theran faith.
In concluding that Perich was not a minister under the exception,
the Sixth Circuit committed three errors. First, it failed to see any
relevance in the fact that Perich was a commissioned minister. Alt-
hough such a title, by itself, does not automatically ensure coverage,
the fact that an employee has been ordained or commissioned as a
minister is surely relevant, as is the fact that significant religious
training and a recognized religious mission underlie the description
of the employee’s position. Second, the Sixth Circuit gave too much
weight to the fact that lay teachers at the school performed the same
religious duties as Perich. Though relevant, it cannot be dispositive
that others not formally recognized as ministers by the church per-
form the same functions—particularly when, as here, they did so only
because commissioned ministers were unavailable. Third, the Sixth
Circuit placed too much emphasis on Perich’s performance of secular
duties. Although the amount of time an employee spends on particu-
lar activities is relevant in assessing that employee’s status, that fac-
tor cannot be considered in isolation, without regard to the other con-
siderations discussed above. Pp. 15–19.
(b) Because Perich was a minister for purposes of the exception,
this suit must be dismissed. An order reinstating Perich as a called
teacher would have plainly violated the Church’s freedom under the
Religion Clauses to select its own ministers. Though Perich no longer
seeks reinstatement, she continues to seek frontpay, backpay, com-
pensatory and punitive damages, and attorney’s fees. An award of
such relief would operate as a penalty on the Church for terminating
an unwanted minister, and would be no less prohibited by the First
Amendment than an order overturning the termination. Such relief
would depend on a determination that Hosanna-Tabor was wrong to
have relieved Perich of her position, and it is precisely such a ruling
that is barred by the ministerial exception.
Any suggestion that Hosanna-Tabor’s asserted religious reason for
firing Perich was pretextual misses the point of the ministerial ex-
ception. The purpose of the exception is not to safeguard a church’s
decision to fire a minister only when it is made for a religious reason.
The exception instead ensures that the authority to select and control
who will minister to the faithful is the church’s alone. Pp. 19–20.
(c) Today the Court holds only that the ministerial exception bars
an employment discrimination suit brought on behalf of a minister,
challenging her church’s decision to fire her. The Court expresses no
view on whether the exception bars other types of suits. Pp. 20–21.
597 F. 3d 769, reversed.
ROBERTS, C. J., delivered the opinion for a unanimous Court. THOM-
AS, J., filed a concurring opinion. ALITO, J., filed a concurring opinion,
in which KAGAN, J., joined.
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