PEACEFUL COEXISTENCE

Panelists’ Written Statements
227
The Supreme Court also declined to embrace a “church autonomy doctrine.” The corollary to
the jurisdictional argument was a theory that churches have “autonomy” from discrimination
law. This theory has been endorsed by numerous church lawyers in a wide variety of settings,
but as I explained in my amicus brief in this case on behalf of BishopAccountability.org, The
Cardozo Advocates for Kids, Child Protection Project, The Foundation to Abolish Child Sex
Abuse, Jewish Board of Advocates for Children, Inc., KidSafe Foundation, The National Black
Church Initiative, The National Center for Victims of Crime, Survivors for Justice, and the
Survivors Network of those Abused by Priests and below, the Supreme Court has never embraced
or identified a “church autonomy doctrine,” 203 and did not do so in this case. In fact, only two
members of the Court, and two who rarely see eye-to-eye on any subject, Justices Alito and
Kagan, endorsed an “autonomy” approach. 204
The Hard Question Largely Left Unanswered: Who is a “Minister”?
Because the Court did not side with the church’s argument in favor of a jurisdictional rule, but
embraced the concept of a ministerial exception required by the First Amendment, it was forced
to decide which employees of religious organizations qualify for the exception. One bright line
would have been to limit it to ordained clergy, but the Court declined to limit the class of those
employees affected to only those who are obviously ordained clergy. The Court also declined to
hold that each and every employee of a religious institution is included. As usual, the hard part
in a constitutional case is the line-drawing.
The lower courts struggled with this same line-drawing, which is why, in the end, the Supreme
Court took up the issue. Essentially the Court held that if an employee is a “minister,” he or she
is excluded from the protections of federal civil rights law. Accordingly, if Perich were not a
“minister,” she would have received the full protection of the ADA, Title VII, and every other
federal, state, and local anti-discrimination law, despite the fact that her employer was religious.
In a Supreme Court case, the most important argument that any litigant can offer is a workable
test. Here, after the Court rejected the jurisdictional theory and a bright-line ordained clergy
category, the test would need to resolve who is, and is not, a minister. Yet, no compelling test
was put forward by either side in Hosanna-Tabor, or, in fact, the Court. For employees who are
not ordained clergy, each case in the future will be based on the facts of that case.
203
Brief of BishopAccountability.org et al. at 17, as Amici Curiae Supporting Petitioner, Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. E.E.O.C, 132 S.Ct. 694 (2012).
204
Hosanna-Tabor, 132 S.Ct. at 711-716 (Alito, J., concurring).