Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission

(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

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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

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(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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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

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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

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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

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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

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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.