Reviewing The Oral Argument in Hosanna-Tabor (Part Two)

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is the first ministerial exception case to make it to the Supreme Court, even though the Fifth Circuit first recognized the exception in 1972. The ministerial exception is a court-created doctrine that requires the dismissal of lawsuits by ministerial employees against religious organizations. At last Wednesday’s oral argument in Hosanna-Tabor, Justice Samuel Alito asked the church’s lawyer, University of Virginia law professor Douglas Laycock, how the exception has worked since its inception.

Justice Alito’s question arose soon after Justice Sonia Sotomayor had asked Laycock whether the ministerial exception should apply to “a teacher who reports sexual abuse to the government and is fired because of that reporting.” Justice Sotomayor’s question was probably based on Weishuhn v. Catholic Diocese of Lansing, which has a cert. petition pending before the Court. Weishuhn, a teacher at a Catholic elementary school, alleged violations of the Michigan Civil Rights Act and Whistleblowers’ Protection Act in being fired because she reported possible sexual abuse of a student’s friend to the authorities without first informing her principal. Justice Alito asked if there have been “a great many cases, a significant number of cases, involving the kinds of things that Justice Sotomayor is certainly rightly concerned about, instances in which ministers have been fired for reporting criminal violations and that sort of thing?”

Laycock gave a confusing answer by suggesting that Weishuhn would lose her case on the facts. He said there is a “cert. petition pending [undoubtedly Weishuhn] in which a teacher with a long series of problems in her school called the police about an allegation of sexual abuse that did not happen at the school, did not involve a student of the school, did not involve a parent at the school, someplace else; and — and called the police and had them come interview a student without any communication with — with her principal. And the Respondents tried to spin that as a case of discharge for reporting sexual abuse. But if you look at the facts it’s really quite different.”

The serious problem with Alito’s question and Laycock’s answer is that we do not know the facts of Weishuhn or most cases dismissed under the ministerial exception. Ministerial exception cases are dismissed without trial; the facts are never developed. In Weishuhn the Michigan Court of Appeals spent the bulk of its opinion reviewing the facts of the workplace that determined whether schoolteacher Weishuhn was a minister. Indeed, the Michigan opinions merely record that Weishuhn was fired “[a]fter a series of employment-related incidents, none of which involved the subject of religion.” To find more facts about the case, you have to search other court documents and Michigan news accounts.

Like any plaintiff, Weishuhn could lose her case on the facts. But the ministerial exception doesn’t allow her a day in court to win or lose her lawsuit. It dismisses her lawsuit before it can be litigated.

What is the answer to Justice Alito’s question? Justice Alito should be “rightly concerned about” the numerous retaliation cases similar to Hosanna-Tabor in which ministers alleged they were fired or demoted for registering employment complaints with the EEOC. Or the hostile work environment, sexual harassment and disabilities lawsuits that did not make it to court. Other cases are factually closer to Alito’s question. State and federal courts have relied on the ministerial exception to dismiss cases in which a Catholic school principal lost her job after complaining to church authorities that her priest-supervisor had assaulted and battered her; a minister reported his bishops’ conversion of church funds and failure to pay income taxes to state authorities; two church staff members consulted with an attorney about their employer’s possible violations of sex discrimination laws; a university chaplain complained about her school’s sexual harassment policy; another university chaplain reported student complaints of faculty sexual harassment to administrators; and a minister told church authorities that her stepfather, a fellow minister, had sexually abused her as a child.

In each case we do not know who would win or lose. What we do know is that the ministerial exception kept the plaintiffs from having their day in court, or as Justice Kennedy said soon after Laycock answered Alito’s question, “you’re asking for an exemption so these issues can’t even be tried.”

That is how the ministerial exception has worked since its inception.


            Leslie Griffin holds the Larry & Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center and is author of Law and Religion: Cases and Materials (Foundation 2d ed. 2010).


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