Supreme Court: Discrimination laws do not protect certain employees of religious groups

Perich sometimes taught religious classes as well as secular classes such as math, and she occasionally led chapel services. She estimated that the “religious” part of her school day was about 45 minutes.

But Roberts said there was little doubt that Perish was a member of the church leadership. She “held herself out as a minister of the Church by accepting the formal call to religious service,” and even claimed a special ministerial housing allowance on her taxes. The determination of ministerial duties “is not one that can be resolved by a stopwatch,” he wrote.

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(Andrew Harrer/BLOOMBERG) - The Supreme Court building in Washington, D.C.

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Roberts devoted several pages of his opinion to tracing the development of the Constitution’s religious clauses and their importance to the new nation.

“The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own,” he wrote.

For that reason, he was particularly dismissive of the government’s argument on Perich’s behalf that her case should be analyzed as though the association in question were a labor union or a social club instead of a church.

“We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers,” he wrote.

Roberts noted that the EEOC and Perich “foresee a parade of horribles” that could result from the court recognizing a ministerial exception to discrimination suits.

At oral arguments, some justices wondered whether church employees might face retaliation for testifying about child abuse, for instance. Roberts said those questions could be addressed if they arose.

“We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct,” he wrote.

Justice Clarence Thomas said in a concurring opinion that he would go beyond the majority’s holding and leave up to the church the definition of who is covered by the exception. Civil courts, he said, should “defer to a religious organization’s good-faith understanding of who qualifies as a minister.”

Justices Samuel A. Alito Jr. and Elena Kagan wrote separately to make clear that they do not think the term “minister” is central to courts determining who is covered by the exemption. Catholics, Jews, Muslims, Hindus and Buddhists rarely use the title, they wrote.

The function performed by the employee is key, Alito wrote.

He said it should apply to anyone “who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

The case is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.