United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation
One value that both of the Constitution’s religion clauses serve is to enforce governmental neutrality in deciding controversies arising out of religious disputes. Schisms sometimes develop within churches or between a local church and the general church, resulting in secession or expulsion of one faction or of the local church. A dispute over which body is to control the property of the church will then often be taken into the courts. It is now established that both religion clauses prevent governmental inquiry into religious doctrine in settling such disputes, and instead require courts simply to look to the decision-making body or process in the church and to give effect to whatever decision is officially and properly made.
The first such case was Watson v. Jones1 in 1871, which was decided on common-law grounds in a diversity action without explicit reliance on the First Amendment. A constitutionalization of the rule was made in Kedroff v. St. Nicholas Cathedral,2 in which the Court held unconstitutional a state statute that recognized the autonomy and authority of those North American branches of the Russian Orthodox Church that had declared their independence from the general church.
Recognizing that Watson v. Jones had been decided on unconstitutional grounds, the Court thought nonetheless that the opinion radiates a spirit of freedom for religious organizations, and 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.3 The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize First Amendment values. What a court must do, it held, is to look at the church rules: if the church is a hierarchical one that reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, whereas if the church is a congregational one that prescribes action by a majority vote, that determination will prevail.4 On the other hand, a court confronted with a church property dispute could apply neutral principles of law, developed for use in all property disputes, when to do so would not require resolution of doctrinal issues.5
In a 1976 case, the Court elaborated on the limits of proper inquiry, holding that an argument over a matter of internal church government—the power to reorganize the dioceses of a hierarchical church in this country—was at the core of ecclesiastical affairs and a court could not interpret the church constitution to make an independent determination of the power but must defer to the interpretation of the church body authorized to decide.6
In Jones v. Wolf,7 the Supreme Court expanded on this neutral principles approach. A schism had developed in a local church that was a member of a hierarchical church, and the majority voted to withdraw from the general church. The proper authority of the general church determined that the minority constituted the true congregation of the local church and awarded them authority over it.
But rather than requiring deference to the decision of the church body, the Court approved the approach of the state court in applying neutral principles by examining the deeds to the church property, state statutes, and provisions of the general church’s constitution concerning ownership and control of church property in order to determine that no language of trust in favor of the general church was contained in any of them and that the property thus belonged to the local congregational majority.8
Further, the Court held, the First Amendment did not prevent the state court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter.9 The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted it to ignore the fact that the dispute was over ecclesiastical matters and that the general church had decided which faction of the congregation was the local church.10
Stemming from these general principles of religious autonomy11 or ecclesiastical abstention12 is the ministerial exception doctrine.13 In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court extended prior cases prohibiting judicial involvement in matters of church governance to limit the scope of certain employment discrimination laws.14 A teacher at a Lutheran school claimed that she had been fired in violation of the federal Americans with Disabilities Act of 1990.15 The school sought to dismiss her claim, arguing that the suit was barred under the ministerial exception, a doctrine recognized by the lower courts precluding the application of federal antidiscrimination law to certain employment disputes.16 The Court agreed, recognizing the existence of the ministerial exception and ruling that requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so impermissibly interferes with the internal governance of the church, violating both the Free Exercise and Establishment Clauses.17
The Court further held that this ministerial exception applied to the teacher's claim in Hosanna-Tabor even though she was not the head of a religious congregation.18 The Court identified four factors leading to the conclusion that the teacher qualified as a minister.19 First, the Court observed that the church labeled her as a minister, with a role distinct from that of most of its members.20 Second, the Court stressed that the church gave her this title only after significant religious training and a formal process of commissioning.21 Third, the teacher held herself out as a minister of the church, in part by claiming a federal tax exemption available only to ministers.22 And fourth, the Court said that her job duties, including her responsibilities in leading religious activities, reflected a role in conveying the church's message and carrying out its mission.23 The Court declined, however, to say whether any of these factors, standing alone, could be sufficient to qualify a teacher as a minister.24
In Our Lady of Guadalupe School v. Morrissey-Berru, the Court suggested that the last factor from Hosanna-Tabor—the individual's job functions—was the most important for determining whether a particular employee falls within the ministerial exception.25 Our Lady of Guadalupe consolidated two cases involving employment discrimination claims brought by teachers fired by religious schools.26 The Court ruled that the two teachers fell within the doctrine27 even though, relative to the teacher in Hosanna-Tabor, they did not have the title of minister, had less religious training, and were not practicing members of their employer's religion.28 Instead, the Court said that [w]hat matters, at bottom, is what an employee does.29 Specifically, the Court recognized that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.30
The Court further understood that the two teachers in the combined cases performed vital religious duties, emphasizing that they provided religious instruction, prayed with their students, and were expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith.31 Consequently, judicial intervention in either dispute would, in the Court's view, threaten the school's independence in a way that the First Amendment does not allow.32
1. 80 U.S. (13 Wall.) 679 (1872).
2. 344 U.S. 94 (1952). Kedroff was grounded on the Free Exercise Clause. Id. at 116. But the subsequent cases used a collective First Amendment designation.
3. 344 U.S. at 116. On remand, the state court adopted the same ruling on the merits but relied on a common-law rule rather than the statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960).
4. Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 447, 450–51 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For a similar rule of neutrality in another context, see United States v. Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud through dissemination of purported religious literature the right to present to the jury evidence of the truthfulness of the religious views he urged).
5. Presbyterian Church v. Hull Memorial Presbyterian Church, 393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 (1970). See also id. at 368–70 (Justice Brennan concurring).
6. The Serbian Eastern Orthodox Diocese v. Dionisije Milivojevich, 426 U.S. 697, 720–25 (1976). In Gonzalez v. Archbishop, 280 U.S. 1 (1929), the Court had permitted limited inquiry into the legality of the actions taken under church rules. In Serbian Eastern the Court disapproved of this inquiry with respect to concepts of arbitrariness, although it reserved decision on the fraud and collusion exceptions. 426 U.S. at 708–20.
7. 443 U.S. 595 (1979). In the majority were Justices Blackmun, Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices Powell, Stewart, White, and Chief Justice Burger.
8. 443 U.S. at 602–06.
9. 443 U.S. at 606–10. Because it was unclear whether the state court had applied such a rule and applied it properly, the Court remanded.
10. 443 U.S. at 610.
11. See, e.g., Roman Catholic Archdiocese of San Juan v. Feliciano, 140 S. Ct. 696, 699 (2020) (per curiam).
12. See, e.g., Puri v. Khalsa, 844 F.3d 1152, 1162 (9th Cir. 2017); Winkler v. Marist Fathers of Detroit, Inc., 901 N.W.2d 566, 573 (Mich. 2017); St. Joseph Catholic Orphan Soc'y v. Edwards, 449 S.W.3d 727, 738 (Ky. 2014).
14. Id. at 185; see also, e.g., Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 710 (1976) (This principle [limiting the role of civil courts in resolving religious controversies] applies with equal force to church disputes over church polity and church administration.)
15. Hosanna-Tabor, 565 U.S. at 179.
16. Id. at 180.
17. Id. at 188–89 (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.).
18. Id. at 190.
20. Id. at 191.
22. Id. at 191–92.
23. Id. at 192.
24. See id.
25. Our Lady of Guadalupe Sch. v. Morrissey-Berru, 140 S. Ct. 2049, 2059 (2020). However, the Court emphasized that a variety of factors may be important in any given case. Id. at 2063.
26. Id. at 2055–56.
27. The majority opinion seemed to move away from using the term ministerial exception, referring instead to the Hosanna-Tabor exception, id. at 2062, or the exemption we recognized in Hosanna-Tabor, id. at 2066. This nomenclature choice could be related to the substance of the decision: elsewhere, the Court emphasized that not all religions use the title of minister, cautioning against attaching too much significance to titles. Id. at 2064.
28. Id. at 2056, 2068.
29. Id. at 2064.
31. Id. at 2066.
32. Id. at 2069.