The Center for Law & Religious Freedom

Unanimous Victory in Supreme Court 


January 11, 2012 - The Supreme Court unanimously held that the First Amendment bars employment discrimination suits brought on behalf of ministers against churches, a concept known as the “ministerial exception.”   Christian Legal Society’s Center for Law and Religious Freedom had filed an amici brief in support of churches’ right to decide who their ministers will be and religious schools’ right to decide who their teachers will be.  The Court’s decision in Hosanna-Tabor Evangelical Church and School v. Equal Employment Opportunity Commission is here, and CLS’s amici brief is here.

                The Court held that the “ministerial exception” exists and is anchored in both the Free Exercise and Establishment Clauses.  The Court further held that a teacher at a religious school, who had been commissioned a minister by the church that controlled the school, was a “minister” under the ministerial exception.  Therefore, the teacher’s discrimination lawsuit against the school must be dismissed.  The church and its school were represented by Professor Doug Laycock of the University of Virginia School of Law and the Becket Fund for Religious Liberty.

                Opposing the church and school, the United States government argued that if a ministerial exception existed, it was extremely narrow and applied only to employees who perform exclusively religious functions.  The Supreme Court rejected that argument, noting that it was “unsure whether any such employees exist.”  At oral argument, Chief Justice Roberts asked the government’s attorney whether the Pope would be a minister under its proposed test.  The government also claimed that the Free Exercise Clause provided no protection for a church’s employment decisions.  The government’s brief is here.

                CLS was joined on its amici brief by Professor Eugene Volokh, the National Council of the Churches of Christ in the USA, Baptist Joint Committee for Religious Liberty, Queens Federation of Churches, and National Association of Evangelicals.  The exceptional brief was written by Professor Tom Berg of St. Thomas School of Law (Minneapolis), Professor Carl Esbeck of University of Missouri School of Law, and Professor Richard Garnett, Associate Dean of Notre Dame Law School, with assistance from Melissa Rogers and Holly Hollman on behalf of Baptist Joint Committee. 

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