Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission , 132 S. Ct. 694 ( 2012 )

(Slip Opinion) OCTOBER TERM, 2011 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
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
2 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Syllabus
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
Cite as: 565 U. S. ____ (2012) 3
Syllabus
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.
4 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Syllabus
(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
Cite as: 565 U. S. ____ (2012) 5
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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.
Cite as: 565 U. S. ____ (2012) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–553
_________________
HOSANNA-TABOR EVANGELICAL LUTHERAN
CHURCH AND SCHOOL, PETITIONER v.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[January 11, 2012]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
Certain employment discrimination laws authorize
employees who have been wrongfully terminated to sue
their employers for reinstatement and damages. The
question presented is whether the Establishment and Free
Exercise Clauses of the First Amendment bar such an
action when the employer is a religious group and the
employee is one of the group’s ministers.
I
A
Petitioner Hosanna-Tabor Evangelical Lutheran Church
and School is a member congregation of the Lutheran
Church–Missouri Synod, the second largest Lutheran
denomination in America. Hosanna-Tabor operated a
small school in Redford, Michigan, offering a “Christ-
centered education” to students in kindergarten through
eighth grade. 582 F. Supp. 2d 881, 884 (ED Mich. 2008)
(internal quotation marks omitted).
2 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
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Opinion of the Court
The Synod classifies teachers into two categories:
“called” and “lay.” “Called” teachers are regarded as
having been called to their vocation by God through a
congregation. To be eligible to receive a call from a con-
gregation, a teacher must satisfy certain academic
requirements. One way of doing so is by completing a
“colloquy” program at a Lutheran college or university. The
program requires candidates to take eight courses of
theological study, obtain the endorsement of their local
Synod district, and pass an oral examination by a faculty
committee. A teacher who meets these requirements may
be called by a congregation. Once called, a teacher re-
ceives the formal title “Minister of Religion, Commis-
sioned.” App. 42, 48. A commissioned minister serves for
an open-ended term; at Hosanna-Tabor, a call could be
rescinded only for cause and by a supermajority vote of the
congregation.
“Lay” or “contract” teachers, by contrast, are not re-
quired to be trained by the Synod or even to be Lutheran.
At Hosanna-Tabor, they were appointed by the school
board, without a vote of the congregation, to one-year
renewable terms. Although teachers at the school general-
ly performed the same duties regardless of whether they
were lay or called, lay teachers were hired only when
called teachers were unavailable.
Respondent Cheryl Perich was first employed by
Hosanna-Tabor as a lay teacher in 1999. After Perich com-
pleted her colloquy later that school year, Hosanna-Tabor
asked her to become a called teacher. Perich accepted the
call and received a “diploma of vocation” designating her a
commissioned minister. Id., at 42.
Perich taught kindergarten during her first four years
at Hosanna-Tabor and fourth grade during the 2003–2004
school year. She taught math, language arts, social stud-
ies, science, gym, art, and music. She also taught a reli-
gion class four days a week, led the students in prayer and
Cite as: 565 U. S. ____ (2012) 3
Opinion of the Court
devotional exercises each day, and attended a weekly
school-wide chapel service. Perich led the chapel service
herself about twice a year.
Perich became ill in June 2004 with what was eventual-
ly diagnosed as narcolepsy. Symptoms included sudden
and deep sleeps from which she could not be roused.
Because of her illness, Perich began the 2004–2005 school
year on disability leave. On January 27, 2005, however,
Perich notified the school principal, Stacey Hoeft, that she
would be able to report to work the following month.
Hoeft responded that the school had already contracted
with a lay teacher to fill Perich’s position for the remain-
der of the school year. Hoeft also expressed concern that
Perich was not yet ready to return to the classroom.
On January 30, Hosanna-Tabor held a meeting of its
congregation at which school administrators stated that
Perich was unlikely to be physically capable of returning
to work that school year or the next. The congregation
voted to offer Perich a “peaceful release” from her call,
whereby the congregation would pay a portion of her
health insurance premiums in exchange for her resigna-
tion as a called teacher. Id., at 178, 186. Perich refused to
resign and produced a note from her doctor stating that
she would be able to return to work on February 22. The
school board urged Perich to reconsider, informing her
that the school no longer had a position for her, but Perich
stood by her decision not to resign.
On the morning of February 22—the first day she was
medically cleared to return to work—Perich presented
herself at the school. Hoeft asked her to leave but she
would not do so until she obtained written documentation
that she had reported to work. Later that afternoon, Hoeft
called Perich at home and told her that she would likely be
fired. Perich responded that she had spoken with an
attorney and intended to assert her legal rights.
Following a school board meeting that evening, board
4 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
chairman Scott Salo sent Perich a letter stating that
Hosanna-Tabor was reviewing the process for rescinding
her call in light of her “regrettable” actions. Id., at 229.
Salo subsequently followed up with a letter advising
Perich that the congregation would consider whether to
rescind her call at its next meeting. As grounds for ter-
mination, the letter cited Perich’s “insubordination and
disruptive behavior” on February 22, as well as the dam-
age she had done to her “working relationship” with the
school by “threatening to take legal action.” Id., at 55.
The congregation voted to rescind Perich’s call on April 10,
and Hosanna-Tabor sent her a letter of termination the
next day.
B
Perich filed a charge with the Equal Employment Op-
portunity Commission, alleging that her employment had
been terminated in violation of the Americans with Dis-
abilities Act, 104 Stat. 327, 42 U. S. C. §12101 et seq.
(1990). The ADA prohibits an employer from discriminat-
ing against a qualified individual on the basis of disability.
§12112(a). It also prohibits an employer from retaliating
“against any individual because such individual has op-
posed any act or practice made unlawful by [the ADA] or
because such individual made a charge, testified, assisted,
or participated in any manner in an investigation, pro-
ceeding, or hearing under [the ADA].” §12203(a).1
——————
1 The ADA itself provides religious entities with two defenses to
claims of discrimination that arise under subchapter I of the Act. The
first provides that “[t]his subchapter shall not prohibit a religious
corporation, association, educational institution, or society from giving
preference in employment to individuals of a particular religion to
perform work connected with the carrying on by such [entity] of its
activities.” §12113(d)(1) (2006 ed., Supp. III). The second provides that
“[u]nder this subchapter, a religious organization may require that all
applicants and employees conform to the religious tenets of such
organization.” §12113(d)(2). The ADA’s prohibition against retaliation,
Cite as: 565 U. S. ____ (2012) 5
Opinion of the Court
The EEOC brought suit against Hosanna-Tabor, alleg-
ing that Perich had been fired in retaliation for threat-
ening to file an ADA lawsuit. Perich intervened in the
litigation, claiming unlawful retaliation under both the
ADA and the Michigan Persons with Disabilities Civil Rights
Act, Mich. Comp. Laws §37.1602(a) (1979). The EEOC
and Perich sought Perich’s reinstatement to her former
position (or frontpay in lieu thereof), along with backpay,
compensatory and punitive damages, attorney’s fees, and
other injunctive relief.
Hosanna-Tabor moved for summary judgment. Invok-
ing what is known as the “ministerial exception,” the
Church argued that the suit was barred by the First
Amendment because the claims at issue concerned the
employment relationship between a religious institution
and one of its ministers. According to the Church, Perich
was a minister, and she had been fired for a religious
reason—namely, that her threat to sue the Church vio-
lated the Synod’s belief that Christians should resolve their
disputes internally.
The District Court agreed that the suit was barred by
the ministerial exception and granted summary judgment
in Hosanna-Tabor’s favor. The court explained that
“Hosanna-Tabor treated Perich like a minister and held her
out to the world as such long before this litigation began,”
and that the “facts surrounding Perich’s employment in a
religious school with a sectarian mission” supported the
Church’s characterization. 582 F. Supp. 2d, at 891–892.
In light of that determination, the court concluded that it
could “inquire no further into her claims of retaliation.”
Id., at 892.
The Court of Appeals for the Sixth Circuit vacated and
——————
§12203(a), appears in a different subchapter—subchapter IV. The
EEOC and Perich contend, and Hosanna-Tabor does not dispute, that
these defenses therefore do not apply to retaliation claims.
6 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
remanded, directing the District Court to proceed to the
merits of Perich’s retaliation claims. The Court of Appeals
recognized the existence of a ministerial exception barring
certain employment discrimination claims against reli-
gious institutions—an exception “rooted in the First
Amendment’s guarantees of religious freedom.” 597 F. 3d
769, 777 (2010). The court concluded, however, that
Perich did not qualify as a “minister” under the exception,
noting in particular that her duties as a called teacher
were identical to her duties as a lay teacher. Id., at 778–
781. Judge White concurred. She viewed the question
whether Perich qualified as a minister to be closer than
did the majority, but agreed that the “fact that the duties
of the contract teachers are the same as the duties of the
called teachers is telling.” Id., at 782, 784.
We granted certiorari. 563 U. S. ___ (2011).
II
The First Amendment provides, in part, that “Congress
shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof.” We have said
that these two Clauses “often exert conflicting pressures,”
Cutter v. Wilkinson, 544 U. S. 709, 719 (2005), and that
there can be “internal tension . . . between the Establish-
ment Clause and the Free Exercise Clause,” Tilton v.
Richardson, 403 U. S. 672, 677 (1971) (plurality opinion).
Not so here. Both Religion Clauses bar the government
from interfering with the decision of a religious group to
fire one of its ministers.
A
Controversy between church and state over religious
offices is hardly new. In 1215, the issue was addressed in
the very first clause of Magna Carta. There, King John
agreed that “the English church shall be free, and shall
have its rights undiminished and its liberties unimpaired.”
Cite as: 565 U. S. ____ (2012) 7
Opinion of the Court
The King in particular accepted the “freedom of elections,”
a right “thought to be of the greatest necessity and im-
portance to the English church.” J. Holt, Magna Carta
App. IV, p. 317, cl. 1 (1965).
That freedom in many cases may have been more the-
oretical than real. See, e.g., W. Warren, Henry II 312
(1973) (recounting the writ sent by Henry II to the electors
of a bishopric in Winchester, stating: “I order you to hold a
free election, but forbid you to elect anyone but Richard
my clerk”). In any event, it did not survive the reign of
Henry VIII, even in theory. The Act of Supremacy of 1534,
26 Hen. 8, ch. 1, made the English monarch the supreme
head of the Church, and the Act in Restraint of Annates,
25 Hen. 8, ch. 20, passed that same year, gave him the
authority to appoint the Church’s high officials. See G.
Elton, The Tudor Constitution: Documents and Commen-
tary 331–332 (1960). Various Acts of Uniformity, enacted
subsequently, tightened further the government’s grip on
the exercise of religion. See, e.g., Act of Uniformity, 1559,
1 Eliz., ch. 2; Act of Uniformity, 1549, 2 & 3 Edw. 6, ch. 1.
The Uniformity Act of 1662, for instance, limited service
as a minister to those who formally assented to prescribed
tenets and pledged to follow the mode of worship set forth
in the Book of Common Prayer. Any minister who refused
to make that pledge was “deprived of all his Spiritual
Promotions.” Act of Uniformity, 1662, 14 Car. 2, ch. 4.
Seeking to escape the control of the national church, the
Puritans fled to New England, where they hoped to elect
their own ministers and establish their own modes of
worship. See T. Curry, The First Freedoms: Church and
State in America to the Passage of the First Amendment 3
(1986); McConnell, The Origins and Historical Under-
standing of Free Exercise of Religion, 103 Harv. L. Rev.
1409, 1422 (1990). William Penn, the Quaker proprietor
of what would eventually become Pennsylvania and Dela-
ware, also sought independence from the Church of Eng-
8 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
land. The charter creating the province of Pennsylvania
contained no clause establishing a religion. See S. Cobb,
The Rise of Religious Liberty in America 440–441 (1970).
Colonists in the South, in contrast, brought the Church
of England with them. But even they sometimes chafed at
the control exercised by the Crown and its representatives
over religious offices. In Virginia, for example, the law
vested the governor with the power to induct ministers
presented to him by parish vestries, 2 Hening’s Statutes
at Large 46 (1642), but the vestries often refused to make
such presentations and instead chose ministers on their
own. See H. Eckenrode, Separation of Church and State
in Virginia 13–19 (1910). Controversies over the selection
of ministers also arose in other Colonies with Anglican
establishments, including North Carolina. See C. An-
tieau, A. Downey, & E. Roberts, Freedom from Federal
Establishment: Formation and Early History of the First
Amendment Religion Clauses 10–11 (1964). There, the
royal governor insisted that the right of presentation lay
with the Bishop of London, but the colonial assembly
enacted laws placing that right in the vestries. Authori-
ties in England intervened, repealing those laws as incon-
sistent with the rights of the Crown. See id., at 11;
Weeks, Church and State in North Carolina, Johns Hop-
kins U. Studies in Hist. & Pol. Sci., 11th Ser., Nos. 5–6,
pp. 29–36 (1893).
It was against this background that the First Amend-
ment was adopted. Familiar with life under the estab-
lished Church of England, the founding generation sought
to foreclose the possibility of a national church. See 1
Annals of Cong. 730–731 (1789) (noting that the Estab-
lishment Clause addressed the fear that “one sect might
obtain a pre-eminence, or two combine together, and
establish a religion to which they would compel others to
conform” (remarks of J. Madison)). By forbidding the
“establishment of religion” and guaranteeing the “free
Cite as: 565 U. S. ____ (2012) 9
Opinion of the Court
exercise thereof,” the Religion Clauses ensured that the
new Federal Government—unlike the English Crown—
would have no role in filling ecclesiastical offices. The
Establishment Clause prevents the Government from
appointing ministers, and the Free Exercise Clause pre-
vents it from interfering with the freedom of religious
groups to select their own.
This understanding of the Religion Clauses was reflect-
ed in two events involving James Madison, “ ‘the leading
architect of the religion clauses of the First Amendment.’ ”
Arizona Christian School Tuition Organization v. Winn,
563 U. S. ___, ___ (2011) (slip op., at 13) (quoting Flast v.
Cohen, 392 U. S. 83, 103 (1968)). The first occurred in
1806, when John Carroll, the first Catholic bishop in the
United States, solicited the Executive’s opinion on who
should be appointed to direct the affairs of the Catholic
Church in the territory newly acquired by the Louisiana
Purchase. After consulting with President Jefferson, then-
Secretary of State Madison responded that the selection
of church “functionaries” was an “entirely ecclesiastical”
matter left to the Church’s own judgment. Letter from
James Madison to Bishop Carroll (Nov. 20, 1806), reprint-
ed in 20 Records of the American Catholic Historical Soci-
ety 63 (1909). The “scrupulous policy of the Constitution
in guarding against a political interference with religious
affairs,” Madison explained, prevented the Government
from rendering an opinion on the “selection of ecclesiasti-
cal individuals.” Id., at 63–64.
The second episode occurred in 1811, when Madison was
President. Congress had passed a bill incorporating the
Protestant Episcopal Church in the town of Alexandria in
what was then the District of Columbia. Madison vetoed
the bill, on the ground that it “exceeds the rightful author-
ity to which Governments are limited, by the essential
distinction between civil and religious functions, and
violates, in particular, the article of the Constitution of the
10 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
United States, which declares, that ‘Congress shall make
no law respecting a religious establishment.’ ” 22 Annals
of Cong. 982–983 (1811). Madison explained:
“The bill enacts into, and establishes by law, sundry
rules and proceedings relative purely to the organi-
zation and polity of the church incorporated, and
comprehending even the election and removal of the
Minister of the same; so that no change could be made
therein by the particular society, or by the general
church of which it is a member, and whose authority
it recognises.” Id., at 983 (emphasis added).
B
Given this understanding of the Religion Clauses—and
the absence of government employment regulation gener-
ally—it was some time before questions about government
interference with a church’s ability to select its own minis-
ters came before the courts. This Court touched upon the
issue indirectly, however, in the context of disputes over
church property. Our 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.
In Watson v. Jones, 13 Wall. 679 (1872), the Court con-
sidered a dispute between antislavery and proslavery
factions over who controlled the property of the Walnut
Street Presbyterian Church in Louisville, Kentucky. The
General Assembly of the Presbyterian Church had recog-
nized the antislavery faction, and this Court—applying
not the Constitution but a “broad and sound view of the
relations of church and state under our system of laws”—
declined to question that determination. Id., at 727. We
explained that “whenever the questions of discipline, or of
faith, or ecclesiastical rule, custom, or law have been
decided by the highest of [the] church judicatories to which
the matter has been carried, the legal tribunals must
accept such decisions as final, and as binding on them.”
Cite as: 565 U. S. ____ (2012) 11
Opinion of the Court
Ibid. As we would put it later, our opinion in Watson
“radiates . . . a spirit of freedom for religious organiza-
tions, an independence from secular control or manipula-
tion—in short, power to decide for themselves, free from
state interference, matters of church government as well
as those of faith and doctrine.” Kedroff v. Saint Nicholas
Cathedral of Russian Orthodox Church in North America,
344 U. S. 94, 116 (1952).
Confronting the issue under the Constitution for the
first time in Kedroff, the Court recognized that the
“[f]reedom to select the clergy, where no improper methods
of choice are proven,” is “part of the free exercise of reli-
gion” protected by the First Amendment against govern-
ment interference. Ibid. At issue in Kedroff was the right
to use a Russian Orthodox cathedral in New York City.
The Russian Orthodox churches in North America had
split from the Supreme Church Authority in Moscow, out
of concern that the Authority had become a tool of the
Soviet Government. The North American churches
claimed that the right to use the cathedral belonged to an
archbishop elected by them; the Supreme Church Authori-
ty claimed that it belonged instead to an archbishop ap-
pointed by the patriarch in Moscow. New York’s highest
court ruled in favor of the North American churches,
based on a state law requiring every Russian Orthodox
church in New York to recognize the determination of the
governing body of the North American churches as author-
itative. Id., at 96–97, 99, n. 3, 107, n. 10.
This Court reversed, concluding that the New York law
violated the First Amendment. Id., at 107. We explained
that the controversy over the right to use the cathedral
was “strictly a matter of ecclesiastical government, the
power of the Supreme Church Authority of the Russian
Orthodox Church to appoint the ruling hierarch of the
archdiocese of North America.” Id., at 115. By “pass[ing]
the control of matters strictly ecclesiastical from one
12 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
church authority to another,” the New York law intruded
the “power of the state into the forbidden area of reli-
gious freedom contrary to the principles of the First Amend-
ment.” Id., at 119. Accordingly, we declared the law
unconstitutional because it “directly prohibit[ed] the free
exercise of an ecclesiastical right, the Church’s choice of its
hierarchy.” Ibid.This Court reaffirmed these First Amendment princi-
ples in Serbian Eastern Orthodox Diocese for United States
and Canada v. Milivojevich, 426 U. S. 696 (1976), a case
involving a dispute over control of the American-Canadian
Diocese of the Serbian Orthodox Church, including its
property and assets. The Church had removed Dionisije
Milivojevich as bishop of the American-Canadian Diocese
because of his defiance of the church hierarchy. Following
his removal, Dionisije brought a civil action in state court
challenging the Church’s decision, and the Illinois Su-
preme Court “purported in effect to reinstate Dionisije as
Diocesan Bishop,” on the ground that the proceedings
resulting in his removal failed to comply with church laws
and regulations. Id., at 708.
Reversing that judgment, this Court explained that the
First Amendment “permit[s] hierarchical religious organi-
zations to establish their own rules and regulations for
internal discipline and government, and to create tribu-
nals for adjudicating disputes over these matters.” Id., at
724. When ecclesiastical tribunals decide such disputes,
we further explained, “the Constitution requires that civil
courts accept their decisions as binding upon them.” Id.,
at 725. We thus held that by inquiring into whether the
Church had followed its own procedures, the State Su-
preme Court had “unconstitutionally undertaken the
resolution of quintessentially religious controversies
whose resolution the First Amendment commits exclusive-
ly to the highest ecclesiastical tribunals” of the Church.
Id., at 720.
Cite as: 565 U. S. ____ (2012) 13
Opinion of the Court
C
Until today, we have not had occasion to consider wheth-
er this freedom of a religious organization to select its
ministers is implicated by a suit alleging discrimination in
employment. The Courts of Appeals, in contrast, have had
extensive experience with this issue. Since the passage of
Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e
et seq., and other employment discrimination laws, the
Courts of Appeals have uniformly recognized the existence
of a “ministerial exception,” grounded in the First Amend-
ment, that precludes application of such legislation to
claims concerning the employment relationship between a
religious institution and its ministers.2
We agree that there is such a ministerial exception. The
members of a religious group put their faith in the hands
of their ministers. 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 deci-
sion. Such action interferes with the internal governance
of the church, depriving the church of control over the
selection of those who will personify its beliefs. By impos-
ing 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.
——————
2 See Natal v. Christian and Missionary Alliance, 878 F. 2d 1575,
1578 (CA1 1989); Rweyemamu v. Cote, 520 F. 3d 198, 204–209 (CA2
2008); Petruska v. Gannon Univ., 462 F. 3d 294, 303–307 (CA3 2006);
EEOC v. Roman Catholic Diocese, 213 F. 3d 795, 800–801 (CA4 2000);
Combs v. Central Tex. Annual Conference, 173 F. 3d 343, 345–350 (CA5
1999); Hollins v. Methodist Healthcare, Inc., 474 F. 3d 223, 225–227
(CA6 2007); Schleicher v. Salvation Army, 518 F. 3d 472, 475 (CA7
2008); Scharon v. St. Luke’s Episcopal Presbyterian Hospitals, 929 F. 2d
360, 362–363 (CA8 1991); Werft v. Desert Southwest Annual Conference,
377 F. 3d 1099, 1100–1104 (CA9 2004); Bryce v. Episcopal Church, 289
F. 3d 648, 655–657 (CA10 2002); Gellington v. Christian Methodist
Episcopal Church, Inc., 203 F. 3d 1299, 1301–1304 (CA11 2000); EEOC
v. Catholic Univ., 83 F. 3d 455, 460–463 (CADC 1996).
14 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
According the state the power to determine which individ-
uals will minister to the faithful also violates the Estab-
lishment Clause, which prohibits government involvement
in such ecclesiastical decisions.
The EEOC and Perich acknowledge that employment
discrimination laws would be unconstitutional as applied
to religious groups in certain circumstances. They grant,
for example, that it would violate the First Amendment for
courts to apply such laws to compel the ordination of
women by the Catholic Church or by an Orthodox Jewish
seminary. Brief for Federal Respondent 31; Brief for
Respondent Perich 35–36. According to the EEOC and
Perich, religious organizations could successfully defend
against employment discrimination claims in those circum-
stances by invoking the constitutional right to freedom
of association—a right “implicit” in the First Amendment.
Roberts v. United States Jaycees, 468 U. S. 609, 622
(1984). The EEOC and Perich thus see no need—and no
basis—for a special rule for ministers grounded in the
Religion Clauses themselves.
We find this position untenable. The right to freedom of
association is a right enjoyed by religious and secular
groups alike. It follows under the EEOC’s and Perich’s
view that the First Amendment analysis should be the
same, whether the association in question is the Lutheran
Church, a labor union, or a social club. See Perich Brief
31; Tr. of Oral Arg. 28. That result is hard to square with
the text of the First Amendment itself, which gives spe-
cial solicitude to the rights of religious organizations. We
cannot accept the remarkable view that the Religion
Clauses have nothing to say about a religious organiza-
tion’s freedom to select its own ministers.
The EEOC and Perich also contend that our decision in
Employment Div., Dept. of Human Resources of Ore. v.
Smith, 494 U. S. 872 (1990), precludes recognition of a
ministerial exception. In Smith, two members of the
Cite as: 565 U. S. ____ (2012) 15
Opinion of the Court
Native American Church were denied state unemployment
benefits after it was determined that they had been fired
from their jobs for ingesting peyote, a crime under Oregon
law. We held that this did not violate the Free Exercise
Clause, even though the peyote had been ingested for
sacramental purposes, because the “right of free exercise
does not relieve an individual of the obligation to comply
with a valid and neutral law of general applicability on the
ground that the law proscribes (or prescribes) conduct that
his religion prescribes (or proscribes).” Id., at 879 (inter-
nal quotation marks omitted).
It is true that the ADA’s prohibition on retaliation, like
Oregon’s prohibition on peyote use, is a valid and neutral
law of general applicability. But a church’s selection of its
ministers is unlike an individual’s ingestion of peyote.
Smith involved government regulation 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. See
id., at 877 (distinguishing the government’s regulation of
“physical acts” from its “lend[ing] its power to one or
the other side in controversies over religious authority or
dogma”). The contention that Smith forecloses recognition
of a ministerial exception rooted in the Religion Clauses
has no merit.
III
Having concluded that there is a ministerial exception
grounded in the Religion Clauses of the First Amendment,
we consider whether the exception applies in this case.
We hold that it does.
Every Court of Appeals to have considered the question
has concluded that the ministerial exception is not limited
to the head of a religious congregation, and we agree. We
are reluctant, however, to adopt a rigid formula for decid-
ing when an employee qualifies as a minister. It is enough
16 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
for us to conclude, in this our first case involving the
ministerial exception, that the exception covers Perich,
given all the circumstances of her employment.
To begin with, Hosanna-Tabor held Perich out as a
minister, with a role distinct from that of most of its mem-
bers. When Hosanna-Tabor extended her a call, it issued
her a “diploma of vocation” according her the title “Minis-
ter of Religion, Commissioned.” App. 42. She was tasked
with performing that office “according to the Word of God
and the confessional standards of the Evangelical Luther-
an Church as drawn from the Sacred Scriptures.” Ibid.The congregation prayed that God “bless [her] ministra-
tions to the glory of His holy name, [and] the building of
His church.” Id., at 43. In a supplement to the diploma,
the congregation undertook to periodically review Perich’s
“skills of ministry” and “ministerial responsibilities,” and
to provide for her “continuing education as a professional
person in the ministry of the Gospel.” Id., at 49.
Perich’s title as a minister reflected a significant degree
of religious training followed by a formal process of com-
missioning. To be eligible to become a commissioned
minister, Perich had to complete eight college-level cours-
es in subjects including biblical interpretation, church
doctrine, and the ministry of the Lutheran teacher. She
also had to obtain the endorsement of her local Synod
district by submitting a petition that contained her aca-
demic transcripts, letters of recommendation, personal
statement, and written answers to various ministry-
related questions. Finally, she had to pass an oral exami-
nation by a faculty committee at a Lutheran college. It
took Perich six years to fulfill these requirements. And
when she eventually did, she was commissioned as a
minister only upon election by the congregation, which
recognized God’s call to her to teach. At that point, her
call could be rescinded only upon a supermajority vote of
the congregation—a protection designed to allow her to
Cite as: 565 U. S. ____ (2012) 17
Opinion of the Court
“preach the Word of God boldly.” Brief for Lutheran
Church-Missouri Synod as Amicus Curiae 15.
Perich held herself out as a minister of the Church by
accepting the formal call to religious service, according to
its terms. She did so in other ways as well. For example,
she claimed a special housing allowance on her taxes that
was available only to employees earning their compensa-
tion “ ‘in the exercise of the ministry.’ ” App. 220 (“If you
are not conducting activities ‘in the exercise of the minis-
try,’ you cannot take advantage of the parsonage or
housing allowance exclusion” (quoting Lutheran Church-
Missouri Synod Brochure on Whether the IRS Considers
Employees as a Minister (2007)). In a form she submitted
to the Synod following her termination, Perich again
indicated that she regarded herself as a minister at
Hosanna-Tabor, stating: “I feel that God is leading me to
serve in the teaching ministry . . . . I am anxious to be in
the teaching ministry again soon.” App. 53.
Perich’s job duties reflected a role in conveying the
Church’s message and carrying out its mission. Hosanna-
Tabor expressly charged her with “lead[ing] others toward
Christian maturity” and “teach[ing] faithfully the Word of
God, the Sacred Scriptures, in its truth and purity and as
set forth in all the symbolical books of the Evangelical
Lutheran Church.” Id., at 48. In fulfilling these responsi-
bilities, Perich taught her students religion four days a
week, and led them in prayer three times a day. Once a
week, she took her students to a school-wide chapel ser-
vice, and—about twice a year—she took her turn leading
it, choosing the liturgy, selecting the hymns, and deliver-
ing a short message based on verses from the Bible. Dur-
ing her last year of teaching, Perich also led her fourth
graders in a brief devotional exercise each morning. As a
source of religious instruction, Perich performed an im-
portant role in transmitting the Lutheran faith to the next
generation.
18 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
In light of these considerations—the formal title given
Perich by the Church, the substance reflected in that title,
her own use of that title, and the important religious
functions she performed for the Church—we conclude
that Perich was a minister covered by the ministerial
exception.
In reaching a contrary conclusion, the Court of Appeals
committed three errors. First, the Sixth Circuit failed to
see any relevance in the fact that Perich was a commis-
sioned minister. Although 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. It was wrong for the Court of
Appeals—and Perich, who has adopted the court’s view,
see Perich Brief 45—to say that an employee’s title does
not matter.
Second, the Sixth Circuit gave too much weight to the
fact that lay teachers at the school performed the same
religious duties as Perich. We express no view on whether
someone with Perich’s duties would be covered by the
ministerial exception in the absence of the other consider-
ations we have discussed. But though relevant, it cannot
be dispositive that others not formally recognized as min-
isters by the church perform 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. It is true that her
religious duties consumed only 45 minutes of each work-
day, and that the rest of her day was devoted to teaching
secular subjects. The EEOC regards that as conclusive,
contending that any ministerial exception “should be
limited to those employees who perform exclusively reli-
gious functions.” Brief for Federal Respondent 51. We
Cite as: 565 U. S. ____ (2012) 19
Opinion of the Court
cannot accept that view. Indeed, we are unsure whether
any such employees exist. The heads of congregations
themselves often have a mix of duties, including secular
ones such as helping to manage the congregation’s financ-
es, supervising purely secular personnel, and overseeing
the upkeep of facilities.
Although the Sixth Circuit did not adopt the extreme
position pressed here by the EEOC, it did regard the
relative amount of time Perich spent performing religious
functions as largely determinative. The issue before us,
however, is not one that can be resolved by a stopwatch.
The amount of time an employee spends on particular
activities is relevant in assessing that employee’s status,
but that factor cannot be considered in isolation, without
regard to the nature of the religious functions performed
and the other considerations discussed above.
Because Perich was a minister within the meaning of
the exception, the First Amendment requires dismissal of
this employment discrimination suit against her religious
employer. The EEOC and Perich originally sought an
order reinstating Perich to her former position as a called
teacher. By requiring the Church to accept a minister it
did not want, such an order would have plainly violated
the Church’s freedom under the Religion Clauses to select
its own ministers.
Perich no longer seeks reinstatement, having abandoned
that relief before this Court. See Perich Brief 58. But that
is immaterial. Perich continues to seek frontpay in lieu of
reinstatement, backpay, compensatory and punitive dam-
ages, 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 termina-
tion. 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
20 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
the ministerial exception.3
The EEOC and Perich suggest that Hosanna-Tabor’s
asserted religious reason for firing Perich—that she vio-
lated the Synod’s commitment to internal dispute resolu-
tion—was pretextual. That suggestion misses the point of
the ministerial exception. 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—a matter “strictly eccle-
siastical,” Kedroff, 344 U. S., at 119—is the church’s
alone.4
IV
The EEOC and Perich foresee a parade of horribles that
will follow our recognition of a ministerial exception to
employment discrimination suits. According to the EEOC
and Perich, such an exception could protect religious
organizations from liability for retaliating against employ-
——————
3 Perich does not dispute that if the ministerial exception bars her
retaliation claim under the ADA, it also bars her retaliation claim
under Michigan law.
4 A conflict has arisen in the Courts of Appeals over whether the min-
isterial exception is a jurisdictional bar or a defense on the merits.
Compare Hollins, 474 F. 3d, at 225 (treating the exception as jurisdic-
tional); and Tomic v. Catholic Diocese of Peoria, 442 F. 3d 1036, 1038–
1039 (CA7 2006) (same), with Petruska, 462 F. 3d, at 302 (treating the
exception as an affirmative defense); Bryce, 289 F. 3d, at 654 (same);
Bollard v. California Province of Soc. of Jesus, 196 F. 3d 940, 951 (CA9
1999) (same); and Natal, 878 F. 2d, at 1576 (same). We conclude that
the exception operates as an affirmative defense to an otherwise
cognizable claim, not a jurisdictional bar. That is because the issue
presented by the exception is “whether the allegations the plaintiff
makes entitle him to relief,” not whether the court has “power to hear
[the] case.” Morrison v. National Australia Bank Ltd., 561 U. S. ___,
___ (2010) (slip op., at 4–5) (internal quotation marks omitted). District
courts have power to consider ADA claims in cases of this sort, and to
decide whether the claim can proceed or is instead barred by the
ministerial exception.
Cite as: 565 U. S. ____ (2012) 21
Opinion of the Court
ees for reporting criminal misconduct or for testifying
before a grand jury or in a criminal trial. What is more,
the EEOC contends, the logic of the exception would con-
fer on religious employers “unfettered discretion” to vio-
late employment laws by, for example, hiring children or
aliens not authorized to work in the United States. Brief
for Federal Respondent 29.
Hosanna-Tabor responds that the ministerial exception
would not in any way bar criminal prosecutions for in-
terfering with law enforcement investigations or other
proceedings. Nor, according to the Church, would the
exception bar government enforcement of general laws
restricting eligibility for employment, because the excep-
tion applies only to suits by or on behalf of ministers
themselves. Hosanna-Tabor also notes that the ministe-
rial exception has been around in the lower courts for 40
years, see McClure v. Salvation Army, 460 F. 2d 553, 558
(CA5 1972), and has not given rise to the dire consequenc-
es predicted by the EEOC and Perich.
The case before us is an employment discrimination suit
brought on behalf of a minister, challenging her church’s
decision to fire her. Today we hold only that the ministe-
rial exception bars such a suit. We express no view on
whether the exception bars other types of suits, including
actions by employees alleging breach of contract or tor-
tious conduct by their religious employers. There will be
time enough to address the applicability of the exception
to other circumstances if and when they arise.
* * *
The interest of society in the enforcement of employ-
ment discrimination statutes is undoubtedly important.
But so too is the interest of religious groups in choosing
who will preach their beliefs, teach their faith, and carry
out their mission. When a minister who has been fired
sues her church alleging that her termination was dis-
22 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
Opinion of the Court
criminatory, the First Amendment has struck the balance
for us. The church must be free to choose those who will
guide it on its way.
The judgment of the Court of Appeals for the Sixth
Circuit is reversed.
It is so ordered.
Cite as: 565 U. S. ____ (2012) 1
THOMAS, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–553
_________________
HOSANNA-TABOR EVANGELICAL LUTHERAN
CHURCH AND SCHOOL, PETITIONER v.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[January 11, 2012]
JUSTICE THOMAS, concurring.
I join the Court’s opinion. I write separately to note
that, in my view, the Religion Clauses require civil courts
to apply the ministerial exception and to defer to a reli-
gious organization’s good-faith understanding of who
qualifies as its minister. As the Court explains, the Reli-
gion Clauses guarantee religious organizations autonomy
in matters of internal governance, including the selection
of those who will minister the faith. A religious organi-
zation’s right to choose its ministers would be hollow,
however, if secular courts could second-guess the organiza-
tion’s sincere determination that a given employee is a
“minister” under the organization’s theological tenets.
Our country’s religious landscape includes organizations
with different leadership structures and doctrines that
influence their conceptions of ministerial status. The
question whether an employee is a minister is itself reli-
gious in nature, and the answer will vary widely. Judicial
attempts to fashion a civil definition of “minister” through
a bright-line test or multi-factor analysis risk disad-
vantaging those religious groups whose beliefs, practices,
and membership are outside of the “mainstream” or
unpalatable to some. Moreover, uncertainty about wheth-
2 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
THOMAS, J., concurring
er its ministerial designation will be rejected, and a corre-
sponding fear of liability, may cause a religious group to
conform its beliefs and practices regarding “ministers” to
the prevailing secular understanding. See Corporation of
Presiding Bishop of Church of Jesus Christ of Latter-day
Saints v. Amos, 483 U. S. 327, 336 (1987) (“[I]t is a signifi-
cant burden on a religious organization to require it, on
pain of substantial liability, to predict which of its activi-
ties a secular court will consider religious. The line is
hardly a bright one, and an organization might under-
standably be concerned that a judge would not understand
its religious tenets and sense of mission. Fear of potential
liability might affect the way an organization carried out
what it understood to be its religious mission” (footnote
omitted)). These are certainly dangers that the First
Amendment was designed to guard against.
The Court thoroughly sets forth the facts that lead to its
conclusion that Cheryl Perich was one of Hosanna-Tabor’s
ministers, and I agree that these facts amply demonstrate
Perich’s ministerial role. But the evidence demonstrates
that Hosanna-Tabor sincerely considered Perich a minis-
ter. That would be sufficient for me to conclude that Per-
ich’s suit is properly barred by the ministerial exception.
Cite as: 565 U. S. ____ (2012) 1
ALITO, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–553
_________________
HOSANNA-TABOR EVANGELICAL LUTHERAN
CHURCH AND SCHOOL, PETITIONER v.
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[January 11, 2012]
JUSTICE ALITO, with whom JUSTICE KAGAN joins,
concurring.
I join the Court’s opinion, but I write separately to
clarify my understanding of the significance of formal
ordination and designation as a “minister” in determining
whether an “employee”1 of a religious group falls within
the so-called “ministerial” exception. The term “minister”
is commonly used by many Protestant denominations to
refer to members of their clergy, but the term is rarely if
ever used in this way by Catholics, Jews, Muslims, Hin-
dus, or Buddhists.2 In addition, the concept of ordination
as understood by most Christian churches and by Judaism
——————
1 It is unconventional to refer to many persons who clearly fall with-
in the “ministerial” exception, such as Protestant ministers, Catholic
priests, and Jewish rabbis, as “employees,” but I use the term in the
sense in which it is used in the antidiscrimination laws that are often
implicated in cases involving the exception. See, e.g., 42 U. S. C.
§2000e(f) (Title VII); §12111(4) (ADA); 29 U. S. C. §630(f) (ADEA);
§206(e) (Equal Pay Act and Fair Labor Standards Act).
2 See 9 Oxford English Dictionary 818 (2d ed. 1989) (def. 4(b)) (noting
the term “minister” used in various phrases “applied as general desig-
nations for a person officially charged with spiritual functions in the
Christian Church”); 9 Encyclopedia of Religion 6044–6045 (2d ed.
2005). See also, e.g., 9 New Catholic Encyclopedia 870 (1967).
2 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
ALITO, J., concurring
has no clear counterpart in some Christian denominations
and some other religions. Because virtually every religion
in the world is represented in the population of the United
States, it would be a mistake if the term “minister” or the
concept of ordination were viewed as central to the im-
portant issue of religious autonomy that is presented in
cases like this one. Instead, courts should focus on the
function performed by persons who work for religious
bodies.
The First Amendment protects the freedom of religious
groups to engage in certain key religious activities, includ-
ing the conducting of worship services and other religious
ceremonies and rituals, as well as the critical process of
communicating the faith. Accordingly, religious groups
must be free to choose the personnel who are essential to
the performance of these functions.
The “ministerial” exception should be tailored to this
purpose. It should apply to any “employee” who leads
a religious organization, conducts worship services or im-
portant religious ceremonies or rituals, or serves as a
messenger or teacher of its faith. If a religious group
believes that the ability of such an employee to perform
these key functions has been compromised, then the con-
stitutional guarantee of religious freedom protects the
group’s right to remove the employee from his or her
position.
I
Throughout our Nation’s history, religious bodies have
been the preeminent example of private associations that
have “act[ed] as critical buffers between the individual and
the power of the State.” Roberts v. United States Jaycees,
468 U. S. 609, 619 (1984). In a case like the one now
before us—where the goal of the civil law in question, the
elimination of discrimination against persons with disabil-
ities, is so worthy—it is easy to forget that the autonomy
Cite as: 565 U. S. ____ (2012) 3
ALITO, J., concurring
of religious groups, both here in the United States and
abroad, has often served as a shield against oppressive
civil laws. To safeguard this crucial autonomy, we have
long recognized that the Religion Clauses protect a private
sphere within which religious bodies are free to govern
themselves in accordance with their own beliefs. The
Constitution guarantees religious bodies “independence
from secular control or manipulation—in short, power to
decide for themselves, free from state interference, mat-
ters of church government as well as those of faith and
doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian
Orthodox Church in North America, 344 U. S. 94, 116
(1952).
Religious autonomy means that religious authorities
must be free to determine who is qualified to serve in
positions of substantial religious importance. Different
religions will have different views on exactly what quali-
fies as an important religious position, but it is nonethe-
less possible to identify a general category of “employees”
whose functions are essential to the independence of prac-
tically all religious groups. These include those who serve
in positions of leadership, those who perform important
functions in worship services and in the performance of
religious ceremonies and rituals, and those who are en-
trusted with teaching and conveying the tenets of the faith
to the next generation.
Applying the protection of the First Amendment to roles
of religious leadership, worship, ritual, and expression
focuses on the objective functions that are important for
the autonomy of any religious group, regardless of its
beliefs. As we have recognized in a similar context,
“[f]orcing a group to accept certain members may impair
[its ability] to express those views, and only those views,
that it intends to express.” Boy Scouts of America v. Dale,
530 U. S. 640, 648 (2000). That principle applies with
special force with respect to religious groups, whose very
4 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
ALITO, J., concurring
existence is dedicated to the collective expression and
propagation of shared religious ideals. See Employment
Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S.
872, 882 (1990) (noting that the constitutional interest in
freedom of association may be “reinforced by Free Exercise
Clause concerns”). As the Court notes, the First Amend-
ment “gives special solicitude to the rights of religious
organizations,” ante, at 14, but our expressive-association
cases are nevertheless useful in pointing out what those
essential rights are. Religious groups are the archetype
of associations formed for expressive purposes, and their
fundamental rights surely include the freedom to choose
who is qualified to serve as a voice for their faith.
When it comes to the expression and inculcation of
religious doctrine, there can be no doubt that the messen-
ger matters. Religious teachings cover the gamut from
moral conduct to metaphysical truth, and both the content
and credibility of a religion’s message depend vitally on
the character and conduct of its teachers. A religion can-
not depend on someone to be an effective advocate for its
religious vision if that person’s conduct fails to live up to
the religious precepts that he or she espouses. For this
reason, a religious body’s right to self-governance must
include the ability to select, and to be selective about,
those who will serve as the very “embodiment of its mes-
sage” and “its voice to the faithful.” Petruska v. Gannon
Univ., 462 F. 3d 294, 306 (CA3 2006). A religious body’s
control over such “employees” is an essential component of
its freedom to speak in its own voice, both to its own mem-
bers and to the outside world.
The connection between church governance and the free
dissemination of religious doctrine has deep roots in our
legal tradition:
“The right to organize voluntary religious associations
to assist in the expression and dissemination of any
Cite as: 565 U. S. ____ (2012) 5
ALITO, J., concurring
religious doctrine, and to create tribunals for the deci-
sion of controverted questions of faith within the asso-
ciation, and for the ecclesiastical government of all the
individual members, congregations, and officers with-
in the general association, is unquestioned. All who
unite themselves to such a body do so with an implied
consent to this government, and are bound to submit
to it. But it would be a vain consent and would lead to
the total subversion of such religious bodies, if any
one aggrieved by one of their decisions could appeal to
the secular courts and have them reversed.” Watson
v. Jones, 13 Wall. 679, 728–729 (1872).
The “ministerial” exception gives concrete protection to
the free “expression and dissemination of any religious
doctrine.” The Constitution leaves it to the collective
conscience of each religious group to determine for itself
who is qualified to serve as a teacher or messenger of its
faith.
II
A
The Court’s opinion today holds that the “ministerial”
exception applies to Cheryl Perich (hereinafter respond-
ent), who is regarded by the Lutheran Church—Missouri
Synod as a commissioned minister. But while a ministe-
rial title is undoubtedly relevant in applying the First
Amendment rule at issue, such a title is neither necessary
nor sufficient. As previously noted, most faiths do not
employ the term “minister,” and some eschew the concept
of formal ordination.3 And at the opposite end of the spec-
——————
3 In Islam, for example, “every Muslim can perform the religious rites,
so there is no class or profession of ordained clergy. Yet there are
religious leaders who are recognized for their learning and their ability
to lead communities of Muslims in prayer, study, and living according
to the teaching of the Qur’an and Muslim law.” 10 Encyclopedia of
Religion 6858 (2d ed. 2005).
6 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
ALITO, J., concurring
trum, some faiths consider the ministry to consist of all or
a very large percentage of their members.4 Perhaps this
explains why, although every circuit to consider the issue
has recognized the “ministerial” exception, no circuit has
made ordination status or formal title determinative of the
exception’s applicability.
The Fourth Circuit was the first to use the term “minis-
terial exception,” but in doing so it took pains to clarify
that the label was a mere shorthand. See Rayburn v.
General Conference of Seventh-day Adventists, 772 F. 2d
1164, 1168 (1985) (noting that the exception’s applicability
“does not depend upon ordination but upon the function of
the position”). The Fourth Circuit traced the exception
back to McClure v. Salvation Army, 460 F. 2d 553 (CA5
1972), which invoked the Religion Clauses to bar a Title
VII sex-discrimination suit brought by a woman who was
described by the court as a Salvation Army “minister,” id.,
at 554, although her actual title was “officer.” See
McClure v. Salvation Army, 323 F. Supp. 1100, 1101 (ND
Ga. 1971). A decade after McClure, the Fifth Circuit made
clear that formal ordination was not necessary for the
“ministerial” exception to apply. The court held that the
members of the faculty at a Baptist seminary were covered
by the exception because of their religious function in
conveying church doctrine, even though some of them
were not ordained ministers. See EEOC v. Southwestern
Baptist Theological Seminary, 651 F. 2d 277 (1981).
The functional consensus has held up over time, with
the D. C. Circuit recognizing that “[t]he ministerial excep-
tion has not been limited to members of the clergy.”
EEOC v. Catholic Univ., 83 F. 3d 455, 461 (1996). The
——————
4 For
instance, Jehovah’s Witnesses consider all baptized disciples to
be ministers. See The Watchtower, Who Are God’s Ministers Today?
Nov. 15, 2000, p. 16 (“According to the Bible, all Jehovah’s worshippers—
heavenly and earthly—are ministers”).
Cite as: 565 U. S. ____ (2012) 7
ALITO, J., concurring
court in that case rejected a Title VII suit brought by a
Catholic nun who claimed that the Catholic University of
America had denied her tenure for a canon-law teaching
position because of her gender. The court noted that
“members of the Canon Law Faculty perform the vital
function of instructing those who will in turn interpret,
implement, and teach the law governing the Roman Cath-
olic Church and the administration of its sacraments.
Although Sister McDonough is not a priest, she is a mem-
ber of a religious order who sought a tenured professorship
in a field that is of fundamental importance to the spiritu-
al mission of her Church.” Id., at 464. See also Natal v.
Christian and Missionary Alliance, 878 F. 2d 1575, 1578
(CA1 1989) (stating that “a religious organization’s fate is
inextricably bound up with those whom it entrusts with
the responsibilities of preaching its word and ministering
to its adherents,” and noting “the difficulties inherent in
separating the message from the messenger”).
The Ninth Circuit too has taken a functional approach,
just recently reaffirming that “the ministerial exception
encompasses more than a church’s ordained ministers.”
Alcazar v. Corp. of Catholic Archbishop of Seattle, 627
F. 3d 1288, 1291 (2010) (en banc); see also Elvig v. Calvin
Presbyterian Church, 375 F. 3d 951, 958 (2004). The
Court’s opinion today should not be read to upset this
consensus.
B
The ministerial exception applies to respondent because,
as the Court notes, she played a substantial role in “con-
veying the Church’s message and carrying out its mis-
sion.” Ante, at 17. She taught religion to her students
four days a week and took them to chapel on the fifth day.
She led them in daily devotional exercises, and led them in
prayer three times a day. She also alternated with the
other teachers in planning and leading worship services at
8 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
ALITO, J., concurring
the school chapel, choosing liturgies, hymns, and read-
ings, and composing and delivering a message based on
Scripture.
It makes no difference that respondent also taught
secular subjects. While a purely secular teacher would not
qualify for the “ministerial” exception, the constitutional
protection of religious teachers is not somehow diminished
when they take on secular functions in addition to their
religious ones. What matters is that respondent played an
important role as an instrument of her church’s religious
message and as a leader of its worship activities. Because
of these important religious functions, Hosanna-Tabor had
the right to decide for itself whether respondent was reli-
giously qualified to remain in her office.
Hosanna-Tabor discharged respondent because she
threatened to file suit against the church in a civil court.
This threat contravened the Lutheran doctrine that dis-
putes among Christians should be resolved internally
without resort to the civil court system and all the legal
wrangling it entails.5 In Hosanna-Tabor’s view, respond-
ent’s disregard for this doctrine compromised her religious
function, disqualifying her from serving effectively as a
voice for the church’s faith. Respondent does not dispute
that the Lutheran Church subscribes to a doctrine of
internal dispute resolution, but she argues that this was a
mere pretext for her firing, which was really done for
nonreligious reasons.
For civil courts to engage in the pretext inquiry that
respondent and the Solicitor General urge us to sanction
——————
5 See The Lutheran Church—Missouri Synod, Commission on Theol-
ogy and Church Relations, 1 Corinthians 6:1–11: An Exegetical Study,
p. 10 (Apr. 1991) (stating that instead of suing each other, Christians
should seek “an amicable settlement of differences by means of a
decision by fellow Christians”). See also 1 Corinthians 6:1–7 (“If any of
you has a dispute with another, dare he take it before the ungodly for
judgment instead of before the saints?”).
Cite as: 565 U. S. ____ (2012) 9
ALITO, J., concurring
would dangerously undermine the religious autonomy that
lower court case law has now protected for nearly four
decades. In order to probe the real reason for respondent’s
firing, a civil court—and perhaps a jury—would be re-
quired to make a judgment about church doctrine. The
credibility of Hosanna-Tabor’s asserted reason for termi-
nating respondent’s employment could not be assessed
without taking into account both the importance that the
Lutheran Church attaches to the doctrine of internal
dispute resolution and the degree to which that tenet
compromised respondent’s religious function. If it could be
shown that this belief is an obscure and minor part of
Lutheran doctrine, it would be much more plausible for
respondent to argue that this doctrine was not the real
reason for her firing. If, on the other hand, the doctrine is
a central and universally known tenet of Lutheranism,
then the church’s asserted reason for her discharge would
seem much more likely to be nonpretextual. But whatever
the truth of the matter might be, the mere adjudication of
such questions would pose grave problems for religious
autonomy: It would require calling witnesses to testify
about the importance and priority of the religious doctrine
in question, with a civil factfinder sitting in ultimate
judgment of what the accused church really believes,
and how important that belief is to the church’s overall
mission.
At oral argument, both respondent and the United
States acknowledged that a pretext inquiry would some-
times be prohibited by principles of religious autonomy,
and both conceded that a Roman Catholic priest who is
dismissed for getting married could not sue the church
and claim that his dismissal was actually based on a
ground forbidden by the federal antidiscrimination laws.
See Tr. of Oral Arg. 38–39, 50. But there is no principled
basis for proscribing a pretext inquiry in such a case while
permitting it in a case like the one now before us. The
10 HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH
AND SCHOOL v. EEOC
ALITO, J., concurring
Roman Catholic Church’s insistence on clerical celibacy
may be much better known than the Lutheran Church’s
doctrine of internal dispute resolution, but popular famili-
arity with a religious doctrine cannot be the determinative
factor.
What matters in the present case is that Hosanna-Tabor
believes that the religious function that respondent per-
formed made it essential that she abide by the doctrine of
internal dispute resolution; and the civil courts are in no
position to second-guess that assessment. This conclusion
rests not on respondent’s ordination status or her formal
title, but rather on her functional status as the type of
employee that a church must be free to appoint or dismiss
in order to exercise the religious liberty that the First
Amendment guarantees.