Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC

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, Washington,
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).

															     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
congregation, 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 receives the
formal title “Minister of Religion, Commissioned.” 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 required 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 generally
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 studies, science, gym, art, and music. She
also taught a religion class four days a week, led the students in
prayer and 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 eventually 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 remainder 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 resignation 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 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 damage 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 Opportunity Commission, alleging that her
employment had been terminated in violation of the Americans with
Dis-abilities Act, 104Stat. 327, 42 U. S. C. §12101
et seq. (1990). The ADA prohibits an employer from
discriminating 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
opposed 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, proceeding, or hearing under
[the ADA].” §12203(a). [ 1 ]

															     The EEOC brought suit
against Hosanna-Tabor, alleging 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. Invoking 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 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
religious 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 Establishment 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.” The
King in particular accepted the “freedom of elections,” a right
“thought to be of the greatest necessity and importance 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 Commentary 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 Understanding of Free
Exercise of Religion, 103 Harv. L. Rev. 1409, 1422 (1990).
William Penn, the Quaker proprietor of what would eventually become
Pennsylvania and Delaware, also sought independence from the Church
of England. 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. Antieau, 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. Authorities in England intervened, repealing those laws
as inconsistent with the rights of the Crown. See id., at 11;
Weeks, Church and State in North Carolina, Johns Hopkins U. Studies
in Hist. & Pol. Sci., 11th Ser., Nos. 5–6, pp. 29–36
(1893).

															     It was against this
background that the First Amendment was adopted. Familiar with life
under the established 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 Establishment
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 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 prevents it from
interfering with the freedom of religious groups to select their
own.

															     This understanding of
the Religion Clauses was reflected 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), reprinted in 20 Records of the American Catholic Historical
Society 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 ecclesiastical 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
authority 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 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 generally—it was some time before questions
about government interference with a church’s ability to select its
own ministers 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 considered 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
recognized 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.” Ibid. As we would put it later, our opinion in Watson
“radiates . . . a spirit of freedom for religious
organizations, an independence from secular control or
manipulation—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 religion” protected by the First Amendment against
government 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 Authority claimed
that it belonged instead to an archbishop appointed 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
authoritative. 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 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 principles 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 Supreme 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 organizations to establish their own rules
and regulations for internal discipline and government, and to
create tribunals 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 Supreme Court had “unconstitutionally
undertaken the resolution of quintessentially religious
controversies whose resolution the First Amendment commits
exclusively to the highest ecclesiastical tribunals” of the Church.
Id., at 720.

															C

															     Until today, we have
not had occasion to consider whether 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 Amendment, 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
decision. 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 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
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
organization’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 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 (internal
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 deciding when an employee qualifies as a minister. It is enough
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 members. When Hosanna-Tabor extended her a
call, it issued her a “diploma of vocation” according her the title
“Minister 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 Lutheran Church as drawn
from the Sacred Scriptures.” Ibid. The congregation prayed that God
“bless [her] ministrations 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 commissioning. To be eligible to
become a commissioned minister, Perich had to complete eight
college-level courses 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 academic
transcripts, letters of recommendation, personal statement, and
written answers to various ministry-related questions. Finally, she
had to pass an oral examination 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 “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
compensation “ ‘in the exercise of the ministry.’ ” App.
220 (“If you are not conducting activities ‘in the exercise of the
ministry,’ 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 responsibilities, 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 service, and—about twice a year—she took her
turn leading it, choosing the liturgy, selecting the hymns, and
delivering a short message based on verses from the Bible. During
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 important role in transmitting the
Lutheran faith to the next generation.

															     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 commissioned 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
considerations we have discussed. But though relevant, it cannot be
dispositive that others not formally recognized as ministers 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 workday, 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 religious functions.” Brief
for Federal Respondent 51. We 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 finances,
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 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. [ 3 ]

															     The EEOC and Perich
suggest that Hosanna-Tabor’s asserted religious reason for firing
Perich—that she violated the Synod’s commitment to internal dispute
resolution—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 ecclesiastical,” 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 employees 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 confer on religious employers “unfettered
discretion” to violate 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 exception 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
consequences 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 ministerial 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 tortious
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 employment 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
discriminatory, 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. Notes 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, §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. 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). 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 ministerial exception is a
jurisdictional bar or a defense on the merits. Compare Hollins, 474
F. 3d, at 225 (treating the exception as jurisdictional); 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. 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, Hindus, or Buddhists. [ 2 ] In addition, the concept of ordination as understood
by most Christian churches and by Judaism 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 important 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, including 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 constitutional 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
disabilities, is so worthy—it is easy to forget that the autonomy
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, 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) .

															     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 qualifies as an important religious position, but it
is nonetheless possible to identify a general category of
“employees” whose functions are essential to the independence of
practically 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 entrusted 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 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 Amendment “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 messenger 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 cannot 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 message” 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 members 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
religious doctrine, and to create tribunals for the decision of
controverted questions of faith within the association, and for the
ecclesiastical government of all the individual members,
congregations, and officers within 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 respondent), 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 spectrum, 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 “ministerial 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 exception has not been limited
to members of the clergy.” EEOC v. Catholic Univ., 83 F. 3d
455, 461 (1996). The 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 Catholic Church and the administration of its sacraments.
Although Sister McDonough is not a priest, she is a member of a
religious order who sought a tenured professorship in a field that
is of fundamental importance to the spiritual 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 “conveying the Church’s message and
carrying out its mission.” 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 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 religiously 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 disputes 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, respondent’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 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
required to make a judgment about church doctrine. The credibility
of Hosanna-Tabor’s asserted reason for terminating 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 sometimes 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 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 familiarity
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 performed 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. Notes 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., (Title
VII); §12111(4) (ADA); (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 designations
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). 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). 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”). 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?”). 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 religious
organization’s good-faith understanding of who qualifies as its
minister. As the Court explains, the Religion 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 religious 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
disadvantaging those religious groups whose beliefs, practices, and
membership are outside of the “mainstream” or unpalatable to some.
Moreover, uncertainty about whether its ministerial designation
will be rejected, and a corresponding 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 significant burden on a religious
organization to require it, on pain of substantial liability, to
predict which of its activities a secular court will consider
religious. The line is hardly a bright one, and an organization
might understandably 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
minister. That would be sufficient for me to conclude that
Per-ich’s suit is properly barred by the ministerial exception.