Tag: ministerial exception


Lawyers have been guilty at times of being mechanistic in responding to the circumstances of a case as if all cases are the same. Fortunately, even though often overwhelmed by numerous cases and with too few staff attorneys to support judicial decisionmaking, judges sometimes are creatively able to reign in a lawsuit.

A good example of this is the preliminary court order in Stabler v Congregation Emanu-El, 2017 WL 3268201 (SD NY 2017). The Plaintiff alleged she was a victim of gender discrimination, age discrimination, and disability discrimination when at age 62, with 17 years of tenure, her job as Librarian ended. She claimed it ended due to unlawful discrimination even though it was characterized, she alleged, by the Defendant as elimination of her position. Unlike many such cases which are nothing more than a claim in search of a factual basis, the Plaintiff alleged sufficient supporting facts causing the Court to deny the Defendants’ Motions to Dismiss. But, rather than simply leave the parties to the usual discovery war, the Court limited discovery solely to the issue of whether the Ministerial Exception applied as pled by the Defendants. The lesson in litigation cost control might be obvious: the Plaintiff’s claim would likely rise or fall on that issue so handle it first and exclusively.

The Plaintiff’s own allegations of her performance “could indicate that she did act as a minister of the Congregation by furthering its mission.” Her claimed accomplishments indicated she had not merely been a custodian of tomes but rather “created a functioning Judaica library” in the impressive and possibly well-known church library. Plaintiff also served on committees with substantial influence. Librarians, so it appeared to have been alleged, of this caliber are not mere custodians but actually define and protect the legacy of the religious scholarship of the church or denomination. A future decision of this Court might become a classic example of when the job title (e.g., “librarian”) does not matter and the substantive nature of the position does in the application of the Ministerial Exception. Best, it might become so by an economically sound litigation limitation.


It would almost seem counterintuitive to suggest that a parochial school is not a religious organization.  The parochial school may be required to teach secular courses to comply with educational or even accreditation standards but unless there is no significant religious component in the curriculum it would seem unreasonable to view it as secular and not parochial.  Nevertheless, the issue seems to be on the table more than it should be.

In Miriam Grussgott v Milwaukee Jewish Day School, Inc., Order, (ED Wisc. 2017), the Plaintiff attempted to persuade the federal court that an Americans with Disabilities Act claim applied to a parochial school.  The Court rejected the claim and entered summary judgment for the parochial school under the Ministerial Exception of the First Amendment.  The Court found that the plaintiff, as a teacher of Hebrew to second and third graders, was a ministerial employee.  While the plaintiff argued the Hebrew language was merely cultural and historical, the parochial school claimed it was religious in nature because of inherent symbolism and other attributes.  Also, the parochial school was able to prove the plaintiff taught Jewish religious rites to the elementary age school children.  The Court refused to put a stopwatch to these duties to determine which predominated in the schedule or the curriculum.  While the plaintiff was not ordained or certified by an ecclesiastical body, plaintiff admitted “teaching a great deal about Judaism and specifically that her role was closely linked to Defendant’s Jewish mission.”  That admission would seem to end the dispute as to whether her role was subject to the Ministerial Exception.

One interesting aside in the opinion was that the plaintiff asserted the school’s employment manual contained an anti-discrimination clause that expressly forbade religious discrimination.  In other words, the plaintiff claimed the Ministerial Exception had been overridden by the contractual nature of the manual.  The Court held:  “This single provision of the Manual cannot stem the tide of other evidence cited above demonstrating Defendant’s religiosity.  Defendant unquestionably qualifies as a Jewish religious organization.”

Lessons for parochial schools may include assuring that their own employment manual does not create an exception to the Ministerial Exception in their region by its wording.  It might also mean that it is good practice to carefully describe in the manual the overriding religious duties of the role of teacher, regardless of educational discipline or expertise, in the religious school so that there is no reasonable dispute about the nature of the position.  Assumptions do not play well as evidence.


Most pastors at some point in their lives begin planning retirement and grooming a successor or teaching leaders how to search for one.  Sometimes, however, someone else wants to impose retirement on the pastor.  In churches that have a high turnover among their pastors, this presents no problem because the revolving door solves the problem.  But, when a pastor has been on station a long time, and is not ready to step aside even though someone wants the pastor to do so, disputes arise.

In Gregorio v Hoover, Memorandum Opinion (DDC 2017), the denominational foundation loaned money to the local church and the denomination co-signed.  The church in a side contract agreed to pay the loan and the denomination agreed to hold legal title until the loan was repaid or refinanced.  Once the loan was retired, the denomination was expected to transfer legal title to the local church corporation.  The payments were timely made by the local church and the loan was retired.  The local church had no turnover in the position of pastor.  The denomination paid a small stipend to the pastor but his income was for the most part earned from the local church.  Two decades passed.  The denomination stopped paying the small stipend to the pastor.  Three years later the denomination advised the pastor of the local church he would retire because the denomination wanted to appoint “younger people” to take his place.  The pastor declined and suggested the denomination had no authority to appoint or terminate the pastor of that particular local church.  The denomination locked the pastor out.

The pastor withdrew the age discrimination claim probably because the pastor had not exhausted administrative remedies by filing a complaint with the federal EEOC and obtaining a right to sue letter.  However, because the pastor was the founding pastor of the local church, the local church’s corporate identity was and had always been owned and controlled by the pastor.  Thus, the pastor was able to keep his claim alive by suing the denomination for failing to transfer legal title after the loan was repaid.  The pastor was able to make a breach of contract claim also because the promised small stipend was two years in arrears after being paid for nearly two decades.  The Ministerial Exception does not override a contract damages claim, even if it might not allow a court to compel reinstatement.  Finally, the pastor asserted a claim against the denomination for unjust enrichment because the legal title was not transferred.

The success or failure of these particular claims lies in the future but there are lessons to learn from this order overruling the denomination’s motions to dismiss.  Denominations that have longstanding engagements with pastors should review the governing documents, including real estate titles, to make certain current denominational retirement policies are reflected and that a retirement strategy has been agreed upon.  A financial incentive to obtain agreement with updated governing documents will almost always be cheaper than litigation.  A contract will often be enforced at least as to money damages.  Contracts are enshrined in Article 1, Section 10 of the United States Constitution, co-equally with the First Amendment, which is why the Ministerial Exception or the Ecclesiastical Abstention Doctrine may not eclipse the contract.


Federal employment laws do not apply to ministers pursuant to the Ministerial Exception Doctrine.  The label “Ministerial Exception Doctrine” refers to a branch of decisions arising under the First Amendment.  It is a subset of the Ecclesiastical Exception Doctrine.  The Ecclesiastical Exception Doctrine is an outgrowth from the Establishment Clause of the First Amendment.  The Ministerial Exception Doctrine generally prohibits a court from exercising jurisdiction over the employment of ministers (which includes, of course, pastors, priests, and many other titles).  The problem remaining is identifying the duties in churches that are equal to or equivalent to ministers in such a way as to trigger the Ministerial Exception Doctrine.

Many religious organizations have tried labeling their employees, all of them, as “ministers” or describing their jobs to include one or more typically ministerial duties.  The scope of the Ministerial Exception Doctrine was confirmed in Hosanna Tabor Evangelical Lutheran Church & Sch. v EEOC, 565 U.S. 171 (2012).  In Hosanna Tabor, the employee was a religious school teacher that had ministerial duties such as teaching religion classes.  But, the outer perimeter of the Ministerial Exception Doctrine remains fuzzy.

In Sterlinski v The Catholic Bishop of Chicago, Memorandum Opinion and Order (ND ILL. ED 2017), the Plaintiff was demoted from the position of Director of Music.  There was no viable claim based solely on the demotion because the position of Director of Music was held to be a ministerial position.  The position was found to be ministerial because the Director of Music was responsible for selecting the liturgical music, holding practice for the church choirs, church management activities and representing the church at denomination level music committee meetings.  Claims for the firing were dismissed.  The holding that a Director of Music was sufficiently ministerial to trigger the Doctrine was to be expected.

But, Plaintiff was demoted from the full time position of Director of Music with the aforementioned duties to a part-time position as organist.  As a part-time organist, Plaintiff did not seem based on the record before the Court to have discretion over worship or other religious activities.  Indeed, the Court mused that if the part-time organist merely played what was assigned by someone else, the position might no longer be sufficiently ministerial to trigger the Doctrine.  Because the record did not appear sufficiently developed to fully describe Plaintiff’s actual duties as part-time organist, the Court refused to dismiss the firing claims and ordered the parties to conduct discovery limited to the duties of the part-time organist.

One lesson to be derived is that in employment decisions, mercy will be punished.  If the Plaintiff had been fired while employed as Director of Music, no claim would have remained due to the Ministerial Exception Doctrine.  Another lesson is that churches should not expect the secular world to understand that public worship musicians and vocalists “set the stage” for preaching and are as important in worship.  That they do not is surprising because there are similar situations such as a professional baseball game that without an organist, at least during the “7th inning stretch” might be disquieting or like a rock concert without drums.  A final lesson is that the employment relationship rarely survives partial measures like a demotion from full time to part-time or a substantial reduction in authority.  A clean break is usually better.


The rise of para-church organizations, no doubt necessary to the support of the church or its ministry are also the inspiration for limitations on the reach of the Ecclesiastical Abstention Doctrine (1st Amendment prohibition of entanglements between secular courts and church doctrine) and the Ministerial Exception (to federal and state employment laws).  Para-church organizations include bible colleges, foundations, and corporations set up to control secular property, and sometimes even church buildings.  Whether positions on the boards that govern the para-church organization are subject to either the Ecclesiastical Abstention Doctrine or the Ministerial Exception can only be determined after careful inquiries.  Secular or ecclesiastic characterization will likely depend on organizational documents of the para-church organization that describe the goals and work as well as the job descriptions of the leadership.  Just because board members must be clergy of the denomination does not automatically trigger either legal doctrine.

Puri v Khalsa, Slip Op. (9th Cir. 2017) is a case in which the 9th Circuit merely reversed a trial court’s decision to dismiss a case on the pleadings based on the 1st Amendment.  Nevertheless, it took 33 pages for the Court to work through the issues, even though all that was before it were the pleadings.  (Because of the high standards that Motions to Dismiss must meet, when a court does this, it usually is not an ultimate statement of the law.  Nevertheless, this well reasoned opinion probably does cast a strong light on this issue.)  Once the case is returned to the trial court, the case may follow a litigation track, may develop a more sophisticated factual record, may be tried to the bench or to a jury, and may return again to the appellate court.

The 9th Circuit was not moved by the fact that the board members had to be ministers of the denomination or religion served by the work of the para-church organization.  The Court ordered Neutral Principles of Law applied by the trial court to determine the eligible board members for the para-church organizations (which all appear to have been corporations).  One of the para-church organizations owned secular businesses.

There was an idea that surfaced many years ago that churches could set up a para-church corporation, transfer their property to it, and that would effectively make their property judgment proof.  States with strong fraudulent transfer policies or laws might neutralize such arrangements.  Also, such arrangements typically divorced the revenue stream from property ownership making the property unavailable as a credit source.  Some encountered tax problems because the argument was made that the property was no longer owned by a church and therefore no longer exempt.

Para-church organizations that want to limit their work and property ownership to ecclesiastically recognizable activities, rather than risk that they are, indeed, secular and governed by civil law, need to carefully design their foundational documents and possibly amend them with the assistance of competent counsel.  Many corporations set up using a form book, or worse a homemade document, are secular in design and not ecclesiastic in design, much to their surprise.


In employment cases arising from religious schools, it often seems reasonable to ask if any background inquiry was made on prospective hiring candidates, especially teaching candidates?  At a religious school, unlike a private commercial employer, hiring without knowing whether the past conduct of a new hire has been consistent with the religious school’s moral imperatives would seem counterproductive.

In Richardson v Northwest Christian University, Slip Op. (D. Oregon, Eugene Div., 2017), the federal trial court wrote a very interesting opinion concluding on the record before it that the church school fired a teacher based on “marital status discrimination” and allowed a disparate treatment / pretext basis for a sex / pregnancy discrimination claim.  The teacher it was learned by the school was cohabitating with the other parent of an unborn child but the couple was not married.  The school gave the teacher the choice to marry, or stop cohabitating, or be terminated.  The teacher more or less rejected the first two choices and was terminated.

However, the court held that the case outcome was not determined by the ministerial exception or the ecclesiastical exception doctrine.  Based on the record before the court, while the religious school’s employment manual seemed to refer generally to religious principles, the manual did not appear to spell them out (at least not sufficiently for a court in the federal 9th Circuit).  That may explain the court’s conclusion.  The teacher in question was an instructor of “exercise science.”  The court found the teacher’s duties did not include “teaching scripture or praying with students.”

Prior to knowledge of the living arrangement or expected child, the school thought the teacher was unmarried.  But, the school knew the teacher had two children.  The school did not, insofar as it would seem from the court opinion, inquire as to whether the teacher was married or divorced.  The lesson might be that while the inquiry might not have been made directly to the teacher at the application stage, a competent pre-hiring background investigation conducted under the appropriate written release would likely have revealed either a marriage or divorce, or both.  Demanding personal references from others inside the religion of the church school regarding good moral character might provide notice of a variant life style.  A religious school that can abide divorce, or children without marriage, may have a hard time at a later date trying to enforce its moral position as a religious school as to cohabitation of unmarried persons.  (Even many churches have decided to tolerate divorce even in leadership because of its prevalence, so tolerating cohabitation may not be as big a leap as some would think.)

Also, a religious school that does not explicitly require, through employee manuals and contracts, its teachers to participate in religious education, prayer, or other on campus worship leadership may have created what an Oregonian court might consider a secular position inside the religious school.