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

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No. 10–553

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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 A commissioned minister serves for an open-ended term; at Hosanna-Tabor, a call could be rescinded only for cause and by a supermajority vote of the congregation.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 religious 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.

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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

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No. 10–553

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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.

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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., 42 U. S. C. §2000e(f) (Title VII); §12111(4) (ADA); 29 U. S. C. §630(f) (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?”).

Print this transcript Transcript: 

ORAL ARGUMENT OF DOUGLAS LAYCOCK ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-553, Hosanna-Tabor Evangelical Lutheran Church and School v. The Equal Employment Opportunity Commission.

Mr. Laycock.

Mr. Laycock: Mr. Chief Justice and play it please the Court:

The churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church.

That's a bedrock principle and these Respondents would repudiate it.

They no longer seriously argue that Cheryl Perich was not a minister.

Instead they argue that even people who are indisputably ministers can sue their churches on claims that turn on their qualifications, their job performance and the rules of ministry.

Justice Ruth Bader Ginsburg: Mr. Laycock, could you clarify one point?

You say the church decides who's qualified to be a minister, but, as I understand the facts here, she was never decommissioned as a minister and, beyond that, she was even recommended by the officials to other parishes to be a commissioned minister.

So it's -- it's odd to say there is any interferences with who is qualified to be a minister, because the church was holding her out as being qualified.

Mr. Laycock: Well, she was removed from her ministry at Hosanna-Tabor.

They do not have to indulge in a vendetta against her and file charges with the synod.

And if you look at that recommendation -- it's in the joint appendix -- it is not much of a recommendation.

There is excellent, commendable, proficient, and in ministry qualities she gets proficient.

We all know if there is a 5, a 4 and a 3, a 3 isn't very good.

So they were not recommending her; they simply weren't pursuing formal charges against her before the -- before the Missouri Synod.

And -- and -- and the problems they had were most severe at Hosanna-Tabor.

In another congregation that didn't know this history, she might have been able to be effective again.

That was for them to decide.

They make their own calls.

But she was removed at Hosanna-Tabor, which is where the problem was.

Justice Sonia Sotomayor: Counsel, most of the circuits have recognized a ministerial exception.

But they've in one form or another created a pretext exception.

The reason for that is the situation that troubles me.

How about a teacher who reports sexual abuse to the government and is fired because of that reporting?

Now, we know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and I believe children.

Regardless of whether it's a religious belief or not, doesn't society have a right at some point to say certain conduct is unacceptable, even if religious -- smoking peyote?

And once we say that's unacceptable, can and why shouldn't we protect the people who are doing what the law requires, i.e. reporting it?

So how do we deal with that situation under your theory?

Under your theory, nothing survives if the individual is a minister, no claim, private claim.

Mr. Laycock: I think if you look at the court of appeals cases, they have not indulged in pretext inquiries for ministers.

The case you present is obviously a difficult case, and I would say two things.

We think the appropriate rule should be the government can do many things to force reporting, to penalize people who don't report, but a discharge claim by a minister presents the question why she was discharged and the court should stay out of that.

Justice Sonia Sotomayor: The problem with that is that it doesn't take account of the societal interest in encouraging the reporting.

And in fact, if we -- if we define the ministerial exception in the way you want, we take away the incentive for reporting; we actually do the opposite of what society needs.

Mr. Laycock: I understand that concern, and that was my second point, that if you want to carve out an exception for cases like child abuse where the government's interest is in protecting the child, not an interest in protecting the minister, when you get such a case, we think you could carve out that exception.

Justice Sonia Sotomayor: How?

Give me a theoretical framework for this?

Mr. Laycock: The -- first you have to identify the government's interest in regulation.

If the government's interest is in protecting ministers from discrimination, we are squarely within the heart of the ministerial exception.

If the government's interest is something quite different from that, like protecting the children, then you can assess whether that government interest is sufficiently compelling to justify interfering with the relationship between the church and its ministers.

But the government's interest is at its nadir when the claim is we want to protect these ministers as such, we want to tell the churches what criteria they should apply for -- for selecting and removing ministers.

Justice Samuel Alito: Mr. Laycock, the ministerial exception is not something new.

It has been widely recognized, as Justice Sotomayor mentioned, by the courts of appeals going back 40 years.

So we can see how the recognition of this exception within -- with certain contours, has worked out, and how has it worked out over those past 40 years?

Have there 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?

Mr. Laycock: The only -- I'm not aware of any such case.

The -- the one case I am aware of cuts the other way.

A minister, a priest accused of sexually abusing children who was fired, sued to get his job back, and the church invoked the ministerial exception and that case ended.

They were able to get rid of him.

There is a cert petition pending 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.

And those are the only two cases I'm aware of that even approach touching on this problem.

Justice Anthony Kennedy: But here what we have is a claim of retaliation, so that she can't even get a hearing.

So we can look at the various tests that are proposed here, and I think it's difficult to formulate the tests, but this can't even be -- be litigated because she is discharged.

The allegation is that there is a retaliation for even asking for a hearing where these tests could -- could be applied.

Mr. Laycock: Well, she can't get a hearing in civil court.

She could have had a hearing in the synod before decisionmakers who would have been independent of the local church.

This Court has repeatedly said churches can create tribunals for the governance of their officers.

The churches--

Justice Anthony Kennedy: Again, that -- that could be an argument you could make in the -- in the pretext hearing.

Mr. Laycock: --Well it's an argument we make in the hearing on whether the ministerial exception applies.

Justice Anthony Kennedy: But you're asking for an exemption so these issues can't even be tried.

Mr. Laycock: Well, we are asking to apply the exemption--

Justice Anthony Kennedy: It's almost like a summary -- like a summary judgment argument.

Mr. Laycock: --It was precisely a motion for--

Justice Anthony Kennedy: That's the analogy, I think.

Mr. Laycock: --It was a motion for summary judgment.

Justice Anthony Kennedy: No, no, no.

What she is saying is that you basically gave me summary judgment; you didn't allow me to go to the agency to have a proper test applied.

The summary judgment was just an analogy.

Forget that.

Mr. Laycock: I'm not entirely sure I understand the question.

We agree she couldn't go to civil court if she's a minister.

She could have gone to the synod.

She wasn't cut off from that.

She decided not to.

Justice Anthony Kennedy: I'm saying if there are some substantial issues the church has that can be litigated in EEOC hearing.

She was fired simply for asking for a hearing.

Mr. Laycock: I understand that.

But once you start to litigate these cases--

Justice Antonin Scalia: I think your point is that it's -- it's none of the business of the government to decide what the substantial interest of the church is.

Mr. Laycock: --That's one of my points, maybe the most important of my points.

These -- these decisions are committed to churches by separation of church and state, but -- but beyond that, once the -- this process of trying to identify, we can decide some issues in this case and we won't get to other issues in this case, doesn't work.

As Justice Breyer said in a First Circuit opinion, that requires more and more finely spun distinctions that create entanglement rather than avoid it.

Universe of Dodd.

Chief Justice John G. Roberts: Counsel, you referred to the ministerial exception, but of course your position extends beyond ministers.

How do we, how do we decide who's covered by the ministerial exception and who is not?

Mr. Laycock: Right.

Here I think it's very easy.

She's a commissioned minister in the church.

She holds ecclesiastical office.

She teaches the religion class.

Chief Justice John G. Roberts: Well, let's say it's a teacher who teaches only purely secular subjects, but leads the class in grace before lunch.

Is that somebody who would be covered by the ministerial exception?

Mr. Laycock: The lower courts have said that person is not covered and we are not challenging that rule.

Obviously, there has to be some kind of quantitative threshold.

There will be line-drawing problems.

But--

Justice Ruth Bader Ginsburg: But I thought your position would be if she's a commissioned minister, as distinguished from a teacher who conducts grace or takes the class to chapel.

I'm -- I'm taking -- the Chief is asking for somebody in this, you categorize as a minister, although mostly she's a math teacher.

You would say the extent of her religious duties don't matter; what counts is that she is commissioned as a minister.

Mr. Laycock: --If she's commissioned as a minister and if that is not a sham, then we think that makes her a minister.

If you have a Jesuit teaching physics, we think he is still a priest and he is still controlled by the ministerial exception.

Justice Antonin Scalia: Can we try whether it's a sham?

I thought you said we couldn't try whether it's a sham.

Mr. Laycock: Well--

Justice Antonin Scalia: Is a sham different from a pretext?

Mr. Laycock: --Well, I -- I certainly meant something different from a pretext.

A sham is more extreme, and it goes to a different point in the analysis.

You can decide whether she is really a minister.

That's a threshold question the courts must decide.

And if we have a person with a ministerial title who is doing nothing at all religious or ministerial, if we have a church who tries to say everyone who ever worked for us or ever may is a minister, the courts can deal with those cases if they--

Justice Antonin Scalia: So you would allow the, the government courts to probe behind the church's assertion that this person is a minister?

You would allow that, right?

But once it is determined that the person is a minister, you would not allow the government to decide whether the firing was a pretext?

Mr. Laycock: --That's right.

Chief Justice John G. Roberts: Well, different churches have different ideas about who's a minister.

There are some churches who think all of our adherents are ministers of our faith.

Now, does that mean that everybody who is a member of that church qualifies as a minister because that is part of the church's belief?

Mr. Laycock: I don't -- I don't think it means that.

And again, I -- I, you know, I think courts have some capacity to look at what this employee is actually doing, and if he is not performing any of the functions of a religious leader, if he is not teaching the faith, then--

Chief Justice John G. Roberts: Every one of our adherents stands as a witness to our beliefs.

And that -- you know, not every church is hierarchical in terms of different offices.

Mr. Laycock: --I understand that.

And lay people in many churches are expected to be witnesses, so--

Justice Anthony Kennedy: Lay people in many--

Mr. Laycock: --Lay people have to be witnesses.

The fact that you're expected to witness to the faith when the occasion arises doesn't make you, doesn't make you a minister.

Justice Anthony Kennedy: --But the answer you gave to the Chief Justice seem to me to be this case.

I was interested.

I didn't know about this, this minister capacity in this particular church.

And as the Chief Justice indicates, many churches don't have -- some churches don't have what we think of as professional or full-time ministers at all.

They're all ministers.

And you said, well, that -- that, that can be litigated, that can be investigated.

And I suppose when we do that we say, how many secular functions do you perform?

And that's what this case is.

But you don't -- you don't even want that issue to be tried.

You say that issue can't even be explored.

Mr. Laycock: How -- how many religious functions you perform can be explored.

The issue that can be explored is whether she's a minister.

We think she clearly is.

The issue--

Justice Antonin Scalia: And that term is a legal term.

What constitutes a minister is -- is decided by the law, not by the church, right?

Mr. Laycock: --That is correct.

Justice Antonin Scalia: Okay.

Mr. Laycock: That is correct.

Justice Elena Kagan: Is that correct?

Justice Samuel Alito: But I thought with a lot of deference to the church's understanding of whether someone is a minister.

Mr. Laycock: We think there should be deference to good faith understandings.

But we are not arguing for a rule that would enable an organization to fraudulently declare that everyone is a minister when it's not true.

You decided the Tony Alamo case 20 years ago.

We're not defending that.

Justice Antonin Scalia: What makes it not true?

What is the legal definition of "minister"?

What is it?

That you have to lead the congregation in their religious services or what?

What is it?

Mr. Laycock: We think -- we think if you teach the doctrines of faith, if that is per your job responsibilities to teach the doctrines of the faith, we think you're a minister.

Justice Elena Kagan: Would it mean that any religious teacher is a minister under your theory?

So, you know, there may be teachers in religious schools who teach religious subjects, not mathematics, but are not ordained or commissioned in any way as ministers.

Are they ministers?

Mr. Laycock: If you're ordained or commissioned, that makes it very easy.

If you teach the religion class, you teach an entire class on religion, we think you ought to be within this rule.

Justice Ruth Bader Ginsburg: I thought that it was part of -- it was agreed that there was no fact dispute that what she did, her duties at the school, did not change from when she's a contract teacher, and therefore not a minister, and then she takes courses and is qualified to become a minister, but what she's doing at the school is the very same thing.

And I thought that was the basis for the, the decision that we are reviewing, that there was no difference at all in what she did before she was commissioned and after she was commissioned.

Mr. Laycock: That -- that's what the Sixth Circuit said.

What they -- what -- you know, I don't think that changes the nature of the functions that were being performed.

But what's relevant to that, that they neglected was these noncommissioned -- these teachers who were not commissioned ministers, the lay and contract teachers, were fill-ins only when no called teacher was available, and Perich identifies only 1 person for 1 year.

Justice Ruth Bader Ginsburg: But you're isolating one parish, but there was something in one of these briefs that said the majority of the teachers in the Lutheran schools -- let's see where it was.

I think it was--

Justice Anthony Kennedy: While Justice Ginsburg is looking, I had -- I had the same impression, that whether you're commissioned or not commissioned doesn't necessarily mean you can't teach a religious class.

Mr. Laycock: Well, it doesn't--

Justice Anthony Kennedy: And again, that's something that, that can be heard.

you don't even want to hear it.

Mr. Laycock: --It's not uncommon, even with ordained ministers, it's not uncommon among Protestants, to recognize an ordination from a different denomination that has similar teachings.

So when -- when they can't find a called minister to cover a class and they hire another Christian from another conservative Protestant denomination, they say: While you teach here, you're required to teach Lutheran doctrine.

Justice Sonia Sotomayor: I'm sorry.

Going back to the question Justice Kagan asked you, if one of these Protestant teachers that's not Lutheran led the cafeteria prayer, as they are required to, you're now saying that the law must recognize that lay teacher as a minister and apply the ministerial exception, even though the religion doesn't consider her a minister?

Mr. Laycock: I didn't say that.

Justice Sonia Sotomayor: Well, but that was the answer you gave.

If she taught a religious class--

Mr. Laycock: If she teaches a religion class, not if she merely leads a prayer.

Justice Sonia Sotomayor: --What is your definition of minister?

Maybe we need to find out.

So it's not a title.

It's really -- the only function, you're saying anyone who teaches religion?

Mr. Laycock: I think if you teach the religion class, you're clearly a minister.

But if you are -- if you hold an ecclesiastical office, that makes this a very easy--

Justice Antonin Scalia: Okay, but this is -- you're saying a fortiori, but basically you'd be here anyway even if she hadn't been ordained; right?

Mr. Laycock: --That's correct.

Justice Stephen G. Breyer: What is your -- take, what is your reaction to a less dramatic kind of holding?

Suppose we were to say the truth is that the particular individual here does have some religious obligations in teaching and quite a lot that aren't.

So she is sort of on the edge.

At the same time, there is a statute which, whether it applies or not, you could take the principle, and it says a religious organization like your client may require that she conform to the religious tenets of the organization.

So Congress focused on this.

And the district court looks at it -- and suppose it were to decide: That's true, but there is no evidence here at all that religious tenets had anything to do with her being dismissed.

No one mentioned them.

She didn't know about them.

I didn't until I read the very excellent brief filed by the Lutherans that explained the nature of taking civil suits.

No one said that to her, whether it was in someone's mind or not.

She found out on motion for summary judgment.

So therefore this wasn't an effort by the religious organization to express its tenets.

She was dismissed.

She could have -- they could have had a defense, but it doesn't apply, and therefore, even though she's sort of like a minister, she loses.

What are your objections to that?

Mr. Laycock: Well, my first objection is I don't think those are remotely the facts here.

You know, this teaching is clearly stated, embodied in an elaborate dispute resolution process.

You don't ask for--

Justice Stephen G. Breyer: Did anyone mention that to her?

Mr. Laycock: --Indeed.

Justice Stephen G. Breyer: Really?

My law clerk couldn't find it.

Can you tell me where, where someone did say the reason we are dismissing you is because of our religious doctrine that you cannot bring civil suits?

Mr. Laycock: Page 55 of the joint appendix, which is the letter that -- where they tell her that they are going to recommend recission of her call, they say because -- because of insubordination, and because you threatened to sue us.

Justice Stephen G. Breyer: I mean, does anyone explain to her, which she might not have known, that this is a religious doctrine that you are supposed to go to the synod or whatever, and you're not supposed to go to court?

Of course they wanted to fire her because she threatened to sue them.

But what I'm wondering is, is there anywhere before the motion for summary judgment where someone explains to her, our motivation here is due to our religious tenet?

Mr. Laycock: You don't assess the importance of a doctrine by asking the person--

Justice Stephen G. Breyer: No, no.

I understand that.

But I would argue a different piece of matter, that the people who were involved in this were doing it for religious rather than civil reasons.

I'm just wondering what the evidence is that they knew there was such a doctrine, that they were motivated by the religious doctrine, and that they expressed that to her.

I just -- I'll look at page 55.

Is there anything else I should look at?

Justice Ruth Bader Ginsburg: --Is it -- is it in the handbook?

I mean, one of the objections -- if this -- if this is a rule that's going to bind a teacher, then you would expect to find it in the handbook.

But the handbook doesn't tell her, if you complain to the EEOC about discrimination then you will be fired.

Mr. Laycock: --Well, I don't know if it does or it doesn't, because the handbook is not in the record except for a short excerpt.

But she knew about this rule.

Justice Stephen G. Breyer: Well, Mr. Laycock, we're looking for a citation in the record.

I just wonder, is there anything you want me to read other than page 55?

Mr. Laycock: Yes.

The principal in her deposition says: The minute she said she might sue, I said: You can't do that; you're a called teacher.

The testimony is the board talked about it at their meeting on February 22nd.

I think that's also in the principal's deposition.

The president of the congregation, who did not deal directly with Perich, said -- said it was one of the first things that he thought about.

Perich was a lifelong Lutheran.

She worked years in Lutheran schools.

She had these eight theology courses.

Simply not credible that she didn't know about this doctrine.

Justice Samuel Alito: Mr. Laycock, didn't this inquiry illustrate the problems that will necessarily occur if you get into a pretext analysis -- the question of was she told that she had violated the church's teaching about suing in a civil tribunal.

Well, that depends.

The significance of -- let's assume she wasn't told.

The significance of that depends on how central a teaching of Lutheranism this is.

It's like, suppose a Catholic priest got married and the bishop said: I'm removing you from your parish because of your conduct.

Now, there wouldn't be much question about why that was done.

So you'd have to get in -- what did Martin Luther actually say about, 2 about suing the church where other Christians in a civil tribunal.

Is this really a central tenet of Lutheranism?

Isn't that the problem with going into this pretext analysis.

Mr. Laycock: That's just part of the problem.

You've got to figure, how does this doctrine work?

How important is it?

How does it apply to the facts of this case?

How does it interact with other doctrines?

Justice Ruth Bader Ginsburg: Mr. Laycock, you, in order, I think, to dispel the notion that nothing is permitted, in your reply brief you say that there are many suits that could be brought that would not be inappropriate.

And I think it's on page 20 of your reply brief.

But I don't understand how those would work if the policy is you're a minister, if you have quarrels with the church or a co-worker, we have our own dispute resolution and you don't go outside.

But you say torts arising from unsafe working conditions.

Suppose one of these commissioned workers said: I think that there are unsafe working conditions and I'm going to complain to the Occupational Health and Safety Agency.

And wouldn't she get the same answer: This has to be solved in-house.

You don't go to an agency of the State.

Why -- I don't follow why the tort claim based on unsafe working conditions would not fall under the same ban on keeping disputes in-house?

Mr. Laycock: Well, it may or it may not.

The -- the rule on internal dispute resolution is most emphatically and clearly stated as applying to disputes over fitness for ministry, and a tort claim may not be a dispute over fitness for ministry.

Justice Ruth Bader Ginsburg: But I thought the reason that she was unfit for the ministry was that she went outside the house.

Mr. Laycock: That's right.

Justice Ruth Bader Ginsburg: So in all of these cases, you go outside the church, you go to the government, then you have a--

Mr. Laycock: What we say in the passages in the reply brief that you're looking at is the legal doctrine, the ministerial exception as a matter of law, does not apply unless the dispute is over whether I get the job back, job qualifications, job performance or rules of ministry.

The church's rule--

Justice Ruth Bader Ginsburg: --But she could be, for any of these things, she could be disciplined, fired because she complained outside the house?

Mr. Laycock: --She could be.

And her tort, the tort claim would proceed.

We think the retaliation claim should not proceed.

Justice Ruth Bader Ginsburg: The tort claim could proceed, and then she would get damages and that would be all right?

Mr. Laycock: She would get damages for the tort.

She would not get damages for the loss of her position.

Justice Ruth Bader Ginsburg: Did you say -- did I understand you before, in response to Justice Sotomayor and Justice Scalia, that even if she were merely a contract teacher, the fact that she teaches religion classes would be enough for her to qualify for the ministerial exception?

Mr. Laycock: Yes.

And the fact that she's a commissioned minister is the clincher in this case.

Teaching--

Justice Ruth Bader Ginsburg: Is the clincher in this case, but even -- I think you answered if she were not a commissioned minister, she's teaching the faith, therefore she can be fired, and it doesn't matter whether she's commissioned, so the commission is irrelevant.

It's -- it's her job duties that count?

Mr. Laycock: --Job duties are enough.

Commission is not irrelevant.

It is the clincher.

Justice Ruth Bader Ginsburg: Well, it was certainly for some purposes, I mean, if every teacher who teaches religion and math and a lot of other things said, I'm a minister and I'm entitled to the parsonage allowance on my income tax return, certainly that's something that a government agent would review.

Mr. Laycock: Well, they do review it there.

I think they -- I don't think the Lutherans have any problems with the IRS on that.

But yes, that is a context where they review these questions.

If I could reserve a few minutes for rebuttal, I would be grateful.

Chief Justice John G. Roberts: You may.

Ms. Kruger.

ORAL ARGUMENT OF LEONDRA R. KRUGER ON BEHALF OF THE FEDERAL RESPONDENT

Ms Kruger: Mr. Chief Justice and play it please the Court:

The freedom of religious communities to come together to express and share religious belief is a fundamental constitutional right.

But it's a right that must also accommodate important governmental interests in securing the public welfare.

Congress has not unconstitutionally infringed Petitioner's freedom in this case by making it illegal for it to fire a fourth grade teacher in retaliation for asserting her statutory rights.

Chief Justice John G. Roberts: Is the position of the United States that there is a ministerial exception or that there is not a ministerial exception?

Ms Kruger: Mr. Chief Justice, if the ministerial exception is understood as a First Amendment doctrine that governs the adjudication of disputes between certain employees and their employers, we agree that that First Amendment doctrine exists.

Chief Justice John G. Roberts: Nothing to do with respect to the ministers.

In other words, is there a ministerial exception distinct from the right of association under the First Amendment?

Ms Kruger: We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses.

Chief Justice John G. Roberts: Is there anything special about the fact that the people involved in this case are part of a religious organization?

Ms Kruger: We think that the -- the analysis is one that the Court has -- has elaborated in other cases involving similar claims to autonomy, noninterference.

Chief Justice John G. Roberts: Is that a no?

You say it's similar to other cases.

Expressive associations, a group of people who are interested in labor rights have expressive associations.

Is the issue we are talking about here in the view of the United States any different than any other group of people who get together for an expressive right?

Ms Kruger: We think the basic contours of the inquiry are not different.

We think how the inquiry plays out in particular cases may be.

Justice Antonin Scalia: That's extraordinary.

That is extraordinary.

We are talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application?

Ms Kruger: The contours -- the inquiry that the Court has set out as to expressive associations we think translate quite well to analyzing the claim that Petitioner has made here.

And for this reason, we don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry.

Justice Antonin Scalia: There is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization.

Now, yes, you -- you can by an extension of First Amendment rights derive such a -- but there, black on white in the text of the Constitution are special protections for religion.

And you say that makes no difference?

Ms Kruger: Well, Justice Scalia, if I may, I don't understand Petitioner from the first half of his argument to have disputed this basic point, which is that the contours of the First Amendment doctrine at issue here will depend on a balancing of interests.

That is the only way, I think, that Petitioner can differentiate a generally neutrally applicable application of antidiscrimination law with respect to a church's choice of those who would govern it and a church's retaliation against a teacher who would report child abuse to the authorities.

Justice Antonin Scalia: I think that the balancing of interests is different, according to the Petitioner, when one of the interests is religion.

And you're just denying that.

You're saying: We balance religion the way we balance labor organizations.

Ms Kruger: Well, Justice Scalia--

Justice Antonin Scalia: That's certainly not what the Petitioner is saying.

Ms Kruger: --Here is where I think was the core of the insight of the ministerial exception as it was originally conceived is, which is that there are certain relationships within a religious community that are so fundamental, so private and ecclesiastical in nature, that it will take an extraordinarily compelling governmental interest to just interference.

Concerns with health or safety, for example.

But the government's general interest in eradicating discrimination in the workplace will not be sufficient to justify the burden--

Justice Samuel Alito: Well, do you accept the proposition that one of the central concerns of the Establishment Clause was preventing the government from choosing ministers?

When there was an established church, the government chose the ministers or had a say in choosing the ministers.

And the Establishment Clause many argue was centrally focused on eliminating that governmental power.

Now, do you dispute that?

Ms Kruger: --No, Justice Alito, we don't dispute it.

What we do dispute is that what is happening when the government applies generally applicable anti-retaliation law to a religious employer is that it is choosing a minister on behalf of the church.

What it is instead doing is preventing religious employers, like any other employers, from punishing their employees for threatening to bring illegal conduct to the attention of--

Justice Stephen G. Breyer: Well, suppose that that's a central tenet.

Suppose you have a religion and the central tenet is: You have a problem with what we do, go to the synod; don't go to court.

And that applies to civil actions of all kinds.

All right?

So would that not be protected by the First Amendment?

Ms Kruger: --Justice Breyer--

Justice Stephen G. Breyer: Your view is it's not protected?

Ms Kruger: --It's not protected.

I'd like to -- I think there are two responses that are relevant to how this Court would resolve that question in this case.

First of all, if the Court were to accept the rule that Petitioner would ask it to adopt, we would never ask the question whether or not the church has a reason for firing an employee that's rooted in religious doctrine.

Their submission is that the hiring and firing decisions with respect to parochial school teachers and with respect to priests is categorically off limits.

And we think that that is a rule that is insufficiently attentive to the relative public and private interests at stake, interests that this Court has repeatedly recognized are important in determining freedom of association claims.

Justice Stephen G. Breyer: So the fact if they want to choose to the priest, you could go to the Catholic Church and say they have to be women.

I mean, you couldn't say that.

That's obvious.

So how are you distinguishing this?

Ms Kruger: Right.

We think that the -- both the private and public interests are very different in the two scenarios.

The government's general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.

But the interests in this case are quite different.

The government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.

Justice Samuel Alito: When you say that, are you not implicitly making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?

I don't see any distinction between -- I can't reconcile your position on those two issues without coming to the conclusion that you think that the Catholic doctrine is older, stronger and entitled to more respect than the Lutheran doctrine.

Ms Kruger: No, we are not -- We are not drawing distinctions between the importance of a particular religious tenet in a system of religious belief.

But the difference is that the government has a indeed foundational interest in ensuring, as a matter of preserving the integrity of the rule of law, that individuals are not punished for coming--

Justice Stephen G. Breyer: You are saying that going to church -- sorry -- that going to court is a more fundamental interest than a woman obtaining the job that she wants, which happens in this case to be a Catholic priest.

But that's the distinction you're making.

Ms Kruger: --I am drawing a distinction between--

Justice Stephen G. Breyer: Well, I don't know why that doesn't -- I mean, you may be right, but it isn't obvious to me that the one is the more important than the other.

Ms Kruger: --The government's interest in preventing retaliation against those who would go to civil authorities with civil wrongs is foundational to the rule of law.

Justice Elena Kagan: Miss Kruger, if I could just clarify for a second there, because you're now sounding as though you want to draw a sharp line between retaliation claims and substantive discrimination claims, and I didn't get that from your brief.

So is that, in fact, what you're saying?

Ms Kruger: I think that there is an important distinction to be made between the government's general interest in eradicating discrimination from the workplace and the government's interest in ensuring that individuals are not chilled from coming to civil authorities with reports about civil wrongs.

But if I could continue, I think that the--

Justice Elena Kagan: So are you willing to accept the ministerial exception for substantive discrimination claims, just not for retaliation claims?

Ms Kruger: --I don't think that those are the only two sets of inquiries that are important in the balancing.

And if I could continue, I think the government--

Chief Justice John G. Roberts: I think that question can be answered yes or no.

Ms Kruger: --I think that that doesn't -- I think the answer is no, in part because that doesn't fully account for all of the public and private interests at stake.

The government's interest extends in this case beyond the fact that this is a retaliation to the fact that this is not a church operating internally to promulgate and express religious belief internally.

It is a church that has decided to open its doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws.

And this Court has recognized in cases like Bob Jones that church-operated schools sit in a different position with respect to the -- the permissible scope of governmental regulations, the churches themselves do.

Justice Antonin Scalia: Even with respect to their religion classes and their theology classes?

It's extraordinary.

Ms Kruger: Well, the government--

Justice Antonin Scalia: Just because -- just because you have to comply with State education requirements on secular subjects, your -- who you pick to -- to teach theology or to teach religion has to be -- has to be subject to State control?

Ms Kruger: --Justice Scalia, to be clear, the government's interest in this case is not in dictating to the church-operated school who it may choose to teach religion classes and who it may not.

It is one thing and one thing only, which is to tell the school that it may not punish its employees for threatening to report civil wrongs to civil authorities.

That is an interest that we think overrides the burden on the association's religious message about the virtues of internal dispute resolution as opposed to court resolution.

Chief Justice John G. Roberts: You're making -- you're making a judgment about how important a particular religious belief is to a church.

You're saying -- this may just be the same question Justice Alito asked -- but you're saying: We don't believe the Lutheran Church when it says that this is an important and central tenet of our faith.

Ms Kruger: No, absolutely not, Mr. Chief Justice.

We do not dispute -- when they assert that it's an important tenet, we assume its validity, we assume that they are sincere in that religious belief.

But just as in United States v. Lee a sincere religious belief was not sufficient to warrant an exemption from generally applicable tax laws, as in Bob Jones, or--

Chief Justice John G. Roberts: On the other hand, the -- the belief of the Catholic Church that priests should be male only, you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic.

Ms Kruger: --Yes.

But that's because the balance of relative public and private interests is different in each case.

Justice Elena Kagan: Do you believe, Miss Kruger, that a church has a right that's grounded in the Free Exercise Clause and-or the Establishment Clause to institutional autonomy with respect to its employees?

Ms Kruger: We don't see that line of church autonomy principles in the religion clause jurisprudence as such.

We see it as a question of freedom of association.

We think that this case is perhaps one of the cases--

Justice Elena Kagan: So this is to go back to Justice Scalia's question, because I too find that amazing, that you think that the Free -- neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church's relationship with its own employees.

Ms Kruger: --We think that this is one of the cases that Employment Division v. Smith may have been referring to when it referred to free association claims that are reinforced by free exercise concerns.

It's certainly true that the association's claim to autonomy in this case is one that is deeply rooted; and concerns about how it exercises its religion, those two things merge in some ways in that respect.

But--

Justice Antonin Scalia: I don't think they -- they merge at all.

Smith didn't involve employment by a church.

It had nothing to do with who -- who the church could employ.

I don't -- I don't see how that has any relevance to this.

I would -- I didn't understand your answer to the Chief Justice's question.

You -- you say that there were different institutional values or government values involved with respect to a -- to a Catholic priest than there is with respect to this Lutheran minister.

Let's assume that a Catholic priest is -- is removed from his duties because he married, okay?

And, and he claims: No, that's not the real reason; the real reason is because I threatened to sue the church.

Okay?

So that reason is just pretextual.

Would you -- would you allow the government to go -- go into the -- into the dismissal of the Catholic priest to see whether indeed it -- it was pretextual?

Ms Kruger: --I think the answer is no, Justice Scalia--

Justice Antonin Scalia: Why?

Ms Kruger: --but that is--

Justice Antonin Scalia: Why is that any different from the Lutheran minister?

Ms Kruger: --I would begin with looking at the burdens on association under the balancing test.

I think that the core of the understanding of the ministerial exception as it was elaborated in the lower courts is that there is a fundamental difference between governmental regulation that operates to interfere with the relationship between a church and those who would govern it, those who would preach the word to the congregation, those who would administer its sacraments, on the one hand, and the more public relationship between a church and a school teacher and others that provide services to the public at large.

Justice Antonin Scalia: I think that's saying nothing different than what the Chief Justice suggests, that you think the one is more -- is more important to -- to Catholics than the other is to Lutherans.

Ms Kruger: I don't think it's a question of the importance of either function to the -- the religious association.

It's a question of the realm of permissible governmental regulation.

Justice Stephen G. Breyer: Yes, but then you have to say that it's more important to let people go to court to sue about sex discrimination than it is for a woman to get a job.

I can't say that one way or the other, so -- so I'm stuck.

And since -- since I'm really -- this is tough and I'm stuck on this, I don't see how you can avoid going into religion to some degree.

You have to decide if this is really a minister, for example, and what kind of minister.

That gets you right involved.

Or if you're not going to do that, you're going to go look to see what are their religious tenets?

And that gets you right involved.

I just can't see a way of getting out of something -- of getting out of the whole thing.

I don't see how to do it.

So suppose you said in case of doubt like that, we'll try what Congress suggested.

And now we have here a borderline case of ministry, not the heartland case.

So you say, all right, where you have a borderline case the constitutional issue goes away and what Congress said is okay, so now what you have to prove is you have to prove that the church has to show that the applicant was disciplined or whatever because she didn't conform to the religious tenets.

All right?

That's what they have to show.

And I'm sorry; they maybe only make a prima facie case, but they got to show it, and if they don't show that there was at least some evidence to that effect and that somebody knew about the religious tenet and there was something like that -- maybe it's in the air, as is obvious with Justice Alito's question.

But where it isn't in the air, you'd have to make a showing.

Now I -- I see that's an interference, but -- but I don't see how you avoid an interference someplace or the other.

Otherwise you're going to get into who is a minister.

So what's the answer to this dilemma?

At the moment I'm making an argument for following what Congress said, go back and try it that way, and if they can show in this case and she shows in this case nobody ever thought of this religious tenet, nobody told me, they didn't read it, then she's going to win.

And if they come in and show that they really did this because of their religious tenet, they will win.

What about that?

Ms Kruger: Justice Breyer, I think that that is a perfectly appropriate way to come at this case, although it skips over sort of the initial inquiry, which is into whether or not the application of the regulations to the particular employment relationship results in an unwarranted interference.

Justice Stephen G. Breyer: Well, it does have the virtue of deciding a statutory question before a tough constitutional question.

And I agree, with what we sometimes do, that seems bizarre, but I thought that was the basic rule.

Ms Kruger: I think that that's absolutely right, Justice Breyer.

And I think the next question becomes, with respect to adjudicating a particular case, whether deciding the case would require the court to decide disputed matters of religious doctrine or to second-guess essentially subjective--

Justice Samuel Alito: Well, if -- if the plaintiff proceeded that way, would she be entitled to -- I assume she would -- introduce testimony by experts on Lutheranism, theologians, professors of religion about how the -- about this -- this tenet, and it isn't really -- they might say, well, it's really not that strong and it once was, but it's faded, and it's not -- it's not widely enforced.

And then you'd have experts on the other side, and you'd have a court and a lay jury deciding how important this really is to Lutherans.

Is that how that would play out?

Ms Kruger: --No, it's not how it would play out.

Justice Samuel Alito: How are we going to avoid that?

I just don't see it.

Ms Kruger: Any inquiry into the validity of a particular religious doctrine is simply irrelevant to the adjudication of the dispute, which is designed to find out just one thing, which is whether the--

Justice Samuel Alito: No.

It's not just irrelevant.

I've dozens and dozens and dozens of pretext cases, and in practically every pretext case that I've seen one of the central issues is whether the reason that was proffered by the employer is the real reason, is an important reason for that, for that employer, and whether they really think it's important and whether they apply it across the board.

That's almost always a big part of the case.

And once you get into that, you're going to get into questions of -- of religious doctrine.

I just don't see it.

Let me give you an example of a real case.

A nun wanted to be -- wanted a tenured position teaching canon law at Catholic University and she claimed that she was denied tenure because of her -- because of her gender.

Now, there the university might argue, no, she's -- and did argue -- she's denied tenure because of the quality of her, of her scholarship.

And okay, now, if you just try that pretext issue, the issue is going to be what is the real quality of her canon law scholarship?

And you're going to have the judge and the jury decide whether this particular writings on canon law are -- make a contribution to canon law scholarship.

How can something like that be tried, without getting into religious issues?

Ms Kruger: --If the only way that the Plaintiff has to show that that may not have been the employer's real reason was a subjective judgment about the quality of canon law scholarship, then judgment has to be entered for the employer, because the plaintiff has no viable way, consistent with the Establishment Cause, of demonstrating that wasn't the employer's real reason.

If on the other hand the plaintiff has evidence that no one ever raised any objections to the quality of her scholarship, but they raised objections to women serving in certain roles in the school, and those roles were not ones that were required to be filled by persons of a particular gender, consistent with religious beliefs, then that's a case in which a judge can instruct a jury that it's job is not to inquire as to the validity of the subjective judgment, just as juries are often instructed that their job is not to determine whether an employer's business judgment was fair or correct, but only whether the employer was motivated by discrimination or retaliation.

Chief Justice John G. Roberts: Thank you, Ms. Kruger.

ORAL ARGUMENT OF WALTER DELLINGER ON BEHALF OF THE PRIVATE RESPONDENT

Mr. Dellinger: Mr. Chief Justice, and may it please the Court--

Justice Elena Kagan: Mr. Dellinger -- could you assume -- could you assume for me that -- is it--

Chief Justice John G. Roberts: Mr. -- Justice Kagan--

[Laughter]

Justice Elena Kagan: --I feel like I missed something.

Mr. Dellinger, could you assume for me that there is a ministerial exception that's founded in the religion clauses, and tell me who counts as a minister, and why this commissioned minister does not count as a minister?

Mr. Dellinger: --I believe that there is an exemption grounded in the religion clauses.

It means that religious organizations will win, will prevail in many cases in which a comparable civil organization would not prevail.

I don't think that it makes sense to approach it in a categorical way of asking--

Justice Elena Kagan: I'm just asking you to assume with me for a moment that there is a categorical exception, and to tell me who you think counts as a minister, and why the woman in this case does not.

Mr. Dellinger: --Well, in our view, if that was the test, then we would say that the court of appeals was correct in holding that she was not a minister, and the reason -- the principal reason is she carries out such important secular functions in addition to her religious duties--

Chief Justice John G. Roberts: I'm sorry to interrupt you, but that can't be the test.

The Pope is a head of state carrying out secular functions; right.

Those are important.

So he is not a minister?

Mr. Dellinger: --Chief Justice Roberts, I do not want to suggest that it's a very good approach to try to decide who is a minister and who's not a minister.

That's what's wrong with Professor Laycock's categorical approach, because it's -- it's both over and under-inclusive.

It sweeps in cases where there is in fact no religious reason offered--

Justice Antonin Scalia: Which if we adopt your test -- why isn't it a perfectly reasonable test whether the person -- although the person may have a lot of secular duties -- whether the person has substantial religious responsibilities?

Mr. Dellinger: --And the reason that is not a satisfactory test is that it fails to take account of the important governmental interests -- for example in this case, in having everyone have access to the -- to the courts--

Justice Stephen G. Breyer: That isn't -- that isn't the problem.

The problem, it seems to me, is I don't know how substantial these interests are religiously.

I don't know how substantial the religion itself considers what they do from a religious perspective.

So let's go back to Justice Alito's problem.

And now on the ministerial issue, we call the synods, we call the how certain was it -- how central is it to the heart of the religion what they're actually doing, and we replicate exactly what he said -- in respect to the problem of religious tenet -- now in respect to the problem of religious minister.

And maybe you can tell me we don't have to go into the one or the other, but I've had enough of these cases in the lower court to know they are really hard.

People believe really different things, and I see no way to avoid going into one or the other, and therefore, I think, rather than try this constitutional matter, let's go to the one Congress suggested.

Mr. Dellinger: --Well--

Justice Stephen G. Breyer: Now, what do you, that's -- that's the state of the argument that you're walking into, I think.

Mr. Dellinger: --If we go to Congress, Congress made it quite clear how this case should be resolved, because Congress expressly did not apply the religious exemptions of the ADA to retaliation.

Justice Stephen G. Breyer: No.

I don't agree with that.

I think -- I think what it says is a religious organization may require that all applicants and employees conform to the religious tenets.

It put that in the section defining defenses.

The defenses are part of the right, and when it forbids retaliation, it says retaliation against an individual for the exercise of any right granted.

And therefore, I don't believe that a person who has failed to violate the substantive section could be held up normally.

I mean, I don't--

Mr. Dellinger: Well, we differ on that, but--

Justice Stephen G. Breyer: --I can think it's pretty easy to read that exception, even though it's in a different subchapter, into the retaliation exception.

Assume for me that that's so.

Mr. Dellinger: --It is still the case it is a constitutional matter -- the State's interest in allowing citizens to have access to its courts and to its agencies is paramount -- in cases like child abuse, reporting of school safety problems and others.

In this case, it's -- we are mindful--

Justice Antonin Scalia: It's not paramount.

Would you -- would you -- take the firing of the Catholic priest example.

Does that get into the courts?

Mr. Dellinger: --No, it doesn't, and the reason--

Justice Antonin Scalia: Why not?

Mr. Dellinger: --The reason is -- and that points out, Justice Scalia, that there are ample doctrines to protect church autonomy.

One is that under the Establishment Clause, there can be no reinstatement ordered by a court of someone into an ecclesiastical position.

Another mentioned by General Kruger is that--

Justice Antonin Scalia: But he can sue for money; right?

Mr. Dellinger: --I -- I do not believe that he can be reinstated or to get damages for removal from the -- from the priesthood.

Justice Antonin Scalia: He can sue for money.

He can sue for, you know, the loss of--

Mr. Dellinger: I think in that case that that is very likely to fail because you're going to run into a -- issues of religious doctrine, or evaluations of distinctly religious matters like EEOC v. Catholic University.

Those doctrines still stand.

The problem with the -- this categorical exception is it sweeps in cases like this one, where the well-pleaded complainant in this case simply says I was dismissed from my employment because I said I was going to make a report to the EEOC, and she's not seeking reinstatement.

She just wants the economic loss -- there's no need--

Justice Samuel Alito: Let me just come back to the example of the canon law, Professor, because I still don't see how the -- the approach that the Solicitor General is recognizing is recommending could -- can eliminate the problems involved in pretext.

So the -- the -- as I understood her -- her answer, it was that you couldn't look into the question of whether the professor's canon law scholarship was really good canon law scholarship, but you could try the issue of sex discrimination based on other evidence.

So maybe there is some stray remarks here and there about a woman teaching canon law.

Now, a response to that might be that wasn't the real reason -- and if you just look at the scholarship and you see how miserable it is and how inconsistent it is with church doctrine, you could see that that's the real reason for it.

So you just cannot get away from evaluating religious issues.

Mr. Dellinger: --This is not a problem that is unique to ministerial employees, which is why this is both over and under-inclusive.

When you -- this is a circumstance in which an organization is going into the public arena providing a public service, and in that situation, it ought to be governed by the same rules -- Justice Scalia, you said this case is not like Employment Division v. Smith, but under Employment Division v. Smith, we know that the State could forbid a school from -- a religious school from using peyote in its ceremonies, but under Petitioner's submission, they could fire any employee who reported that use of peyote to civil authorities, and that employee would have no recourse.

We know that under U.S. v. Lee, an Amish employer has to comply with the Social Security laws, but under their submission, the employer could fire without recourse any employee who called noncompliance to the attention of the EEOC.

We believe that you can trust Congress on these hard areas where there needs to be additional accommodations; Congress could make them, just as Justice Scalia suggested.

The ministerial exception has a long history, Justice Alito, but in almost every circuit, it did not apply to teachers, so, I mean--

Justice Samuel Alito: It's antedated.

Did it not antedate the enactment of the Americans with Disabilities Act?

Mr. Dellinger: --That is correct.

When that was enacted--

Justice Samuel Alito: Then shouldn't we assume that Congress -- that Congress -- assumed that it would continue to apply to the ADA, just as it applied to Title VII.

Mr. Dellinger: --In the lower courts, it did not apply as sweepingly as to teachers.

And I think we had this debate with Justice Breyer about whether you can say that Congress specifically excluded retaliation cases.

But remember that that doctrine emerged at a time when this Court had a position that religious organizations could not participate in getting public funding, even when they are provided with menial services to low income students.

We repudiated that doctrine in Agostini v. Felton and where the Court said that you're entitled to participate in providing public services on the same basis as all other organizations.

That means that you should comply, in some instances, with the same rules.

When you leave the cloister and go into the public arena and provide public services.

Justice Antonin Scalia: --Do Lutheran schools and Catholic parochial schools share public funds the same way public schools do?

Mr. Dellinger: No, they don't--

Justice Stephen G. Breyer: You bet they don't.

Mr. Dellinger: --But they are entitled to.

Justice Antonin Scalia: What is this argument you're making?

I don't understand.

Mr. Dellinger: Because we are no longer -- We are no longer of the of the Agostini v. Felton era, the Employment Division v. Smith where we believe that no governmental rules or involvement can be had with these public institutions.

Justice Antonin Scalia: Don't tell me that fair is fair, that now, you know--

Mr. Dellinger: No--

Justice Antonin Scalia: --Just like everybody else.

That's not true.

Mr. Dellinger: --It's that we have recognized in your opinion in Smith and in Justice Kennedy's opinion in Rosenberger the value of neutrality where you have doctrines -- If we recognize -- You do not second-guess religious doctrine.

You do not under the Establishment Clause introduce someone into an ecclesiastical office, and you do a balancing test to make sure that there is a sufficient governmental interest, if you're going to undercut an organization's ability to convey its views.

Thank you.

Chief Justice John G. Roberts: Thank you, Mr. Dellinger.

Mr. Laycock, two minutes.

REBUTTAL ARGUMENT OF DOUGLAS LAYCOCK ON BEHALF OF THE PETITIONER

Mr. Laycock: Two or three points very briefly.

The many distinctions and balancing tests in their argument showed the mess you will be in if you try to decide these cases.

And we MAY have a line-drawing problem with the margin, but many, many are easy: The priest, the rabbi, the bishop, the pastor of the congregation cannot sue.

Under their rule, they can sue--

Justice Sonia Sotomayor: Mr. Laycock, I'm not sure why the status of the individual matters under your theory.

It seems to me what you're saying is, so long as a religious organization gives a religious reason of any kind, genuine or not, for firing someone that's associated with it, whether minister or not, that that invokes the exception.

Am I hearing your argument right?

Mr. Laycock: --No.

Justice Sonia Sotomayor: All right.

So why is there a difference?

Mr. Laycock: The position of minister is categorically special because that has committed the church in the system of separation of church and state.

You may have religious questions when they dismiss the janitor, but the level of sensitivity is not remotely the same.

And--

Justice Sonia Sotomayor: So you would say with janitors, you can get into the pretext question.

Mr. Laycock: --Janitor can litigate his pretext question.

Yes.

Justice Sonia Sotomayor: So you're limiting your test to whether that person is minister.

So define minister for me again.

Mr. Laycock: A minister is a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously, including teaching of the faith.

Justice Elena Kagan: Mr. Laycock, Mr. Dellinger has some points here about the way in which the ministerial exception relates or doesn't relate to Employment Division v. Smith.

And it seems to me that in order to make an argument of the ministerial exception, you in some sense have to say that institutional autonomy is different from individual conscience; that we have said in Smith that state interests can trump individual conscience.

And you want us to say that they can't trump institutional autonomy.

So why is that?

Mr. Laycock: It's not that institutions are different from individuals.

It is that the institutional governance of the church is at a prior step.

Smith is about whether people can act on their religious teachings after they are formulated.

The selection of ministers is about the process by which those religious teachings will be formulated.

Smith distinguishes those--

Justice Antonin Scalia: Might not the Establishment Clause have something to do with that question--

Mr. Laycock: --The Establishment Clause--

Justice Antonin Scalia: --which applies to institutions?

Mr. Laycock: --That's the second answer--

Justice Antonin Scalia: Where the Free Exercise Clause applies to individuals.

Mr. Laycock: --This score has relied on both Free Exercise and Establishment.

Serbian, Kedreff, Kreshik, Gonzalez.

There's a long line of cases all the way back to Watson distinguishing this problem from the problem that culminates in Smith.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.

Print this transcript Transcript: 

Chief Justice John G. Roberts: I have our opinion this morning in Case Number 10-553, Hosanna-Tabor Evangelical Lutheran Church and School versus the Equal Employment Opportunity Commission.

Hosanna-Tabor Evangelical Lutheran Church operated a small school in Michigan for students in kindergarten through 8th grade.

The school had two types of teachers, Called teachers and Lay teachers.

Called teachers were regarded by the Church as having been called to their vocation by God.

To become a Called teacher, a candidate had to complete certain academic requirements, including a course of theological study.

Once Called, a teacher received the formal title "Minister of Religion, Commissioned."

Lay teachers, by contrast, were not required to have theological training or even to be Lutheran.

Cheryl Perich was a Called teacher at Hosanna-Tabor.

In addition to teaching secular subjects like math and social studies, Perich taught a religion class, led her students in daily prayer and devotional exercises and took her students to a weekly school-wide chapel service.

Lay teachers did all this too when Called teachers were not available.

Now, in 2004, Perich was diagnosed with narcolepsy and went on disability leave.

When she thought she'd gotten better, she -- she sought to return to teaching, but the Church said it no longer had a position for her and asked her to resign.

After Perich refused and showed up at the school anyway, she was told she would likely be fired.

Perich responded by threatening to take legal action.

A few weeks later, the Church did fire her, citing what it called here disruptive behavior and at that point, Perich did take legal action.

She filed a charge with the Equal Employment Opportunity Commission or EEOC, alleging that by firing her, the Church had violated a federal law, the Americans with Disabilities Act or ADA.

The EEOC sued the Church under the ADA, claiming that the Church had unlawfully retaliated against Perich for threatening legal action, and Perich joined that suit.

Invoking what is known as the ministerial exception, the Church argues that the employment discrimination suit cannot proceed.

It contends that enforcing the ADA here is barred by the First Amendment to the Constitution because such a suit would allow the Government to intrude into the employment relationship between a religious group and one of its ministers.

The question in this case is whether such a ministerial exception exists.

Now, controversy between church and State over religious offices is nothing new.

In fact, the issue was addressed in the very first clause of Magna Carta.

There, King John agreed and this, "The English church shall be free" and he accepted the Church's "freedom of elections," a right thought to be of the greatest necessity and importance.

That freedom, of course, did not survive the reign of Henry VIII and in 1534 the English monarch was made the head of the established church with authority to appoint its high officials.

Many in England later left for America precisely so that they could choose their own ministers here.

Even colonists, who continued to follow the Church of England after they arrived, often objected to the control exercise by the Crown over religious offices.

To cite just one example, in Virginia, there was a law that vested with the royal governor, the power to appoint ministers, but local groups often defied him by choosing ministers on their own.

It was against this background that our Nation adopted the First Amendment providing that Congress shall make no laws respecting an establishment of religion or prohibiting the free exercise thereof.

Familiar with life under the established Church of England, the founding generations sought to foreclose the possibility of a national church by forbidding the establishment of religion and guaranteeing the free exercise thereof.

The Amendment's Religion Clauses ensured that the new Federal Government, unlike the English Crown, would have no role in filling religious offices.

Now, until today, we have not had occasion to consider whether this core principle is implicated by a suit that alleges discrimination in employment and seeks the help of the Government in resolving that employment dispute.

We conclude that the ministerial exception is implicated in such a situation.

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 through an employment discrimination suit, the State infringes the Free Exercise Clause which protects a religious group's right to shape its own faith and mission through its appointments.

Giving the State the power to determine which individuals will -- will minister to the faithful, also violates the Establishment Clause which prohibits Government involvement in such ecclesiastical decisions.

Now, having concluded that there is a ministerial exception grounded in the Religion Clauses, the next question is whether Perich was a minister.

Given all the circumstances of her employment, we hold that she was.

To begin with, Hosanna-Tabor held Perich out as a minister.

The Church issued her a "diploma of vocation" formally designating her a "Minister of Religion".

That title represented a significant degree of religious training followed by a formal process of commissioning.

Perich also held herself out as a minister by accepting the formal call to religious services -- religious service and even claiming a special housing allowance for those in the ministry.

Finally, Perich's job duties reflected a role in convening the Church's message and carrying out its mission.

As mentioned earlier, Perich taught a religion class, led her students in prayer and devotional exercises, and took her students to a weekly school-wide chapel services.

About twice a year, she led the chapel service herself, choosing the liturgies, selecting the hymns and delivering a short message based on verses from the Bible.

Now, it is true that these duties occupied only 45 minutes of her time in a typical school day, but the issue before us is not one that can be resolved by a stopwatch.

As a source of religious instruction, Perich played an important part in transmitting the Lutheran faith to the next generation.

None of the factors I've discussed is determinative, but together, they lead us to conclude that Perich was a minister.

This suit, therefore, must be dismissed.

An order reinstating Perich at the school would plainly violate the Church's freedom under the Religion Clauses to select its own ministers, so too would an award of pay, damages or attorney's fees which would operate as a penalty on the Church for terminating an unwanted minister.

Granting Perich the relief she seeks would entail a determination that Hosanna-Tabor was wrong to have fired here and it is precisely such a ruling that is barred by the ministerial exception.

The interest of society in enforcing employment discrimination laws is plainly important, but so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carryout 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.

Our opinion is unanimous.

The judgment of the Court of Appeals for the Sixth Circuit is reversed.

Justice Thomas has filed a concurring opinion.

Justice Alito has also filed a concurring opinion, in which Justice Kagan joins.