The “ministerial exception” is under attack again.
And this time on two fronts.
The U.S. Circuit Court of Appeals for the 10th District ruled in June 2022 that a religion teacher at a Colorado Christian high school — a “chaplain” at the school, no less — could not be fired by the school for transgressing the school’s religious tenets, and, what’s more, that the matter of who is or is not a minister should be decided not by the affected religious institution, nor by the courts, but by a jury in a civil trial.
That school, Faith Christian Academy of Arvada, Colorado, a suburb of Denver, applied last week to the U.S. Supreme Court for a hearing.
The background: In 2000, Gregory Tucker joined the faculty — primarily as a science teacher — at Faith Christian Academy, the church school of Faith Bible Chapel, which offers K–12 education. He left in 2006 to do mission work in the Dominican Republic. Returning in 2010, Tucker signed on to teach Bible courses on a part-time basis, then in 2014 returned to full-time service as the school’s chaplain, which required 20 to 25 hours of service per week, in addition to his teaching load.
In 2017, he took over chapel duties, planning the school’s weekly chapel services. In January 2018, Tucker led a “Race and Faith Chapel” service. “His message,” according to court documents, “accused Faith Christian students and parents of racism, which the message defined in terms of white privilege and systemic bias.”
The possibility that religious entities must relinquish the right to determine who is or is not a minister to a civil jury is even more troubling.
Parents and students complained that the message was more political than biblical; school officials decided the message “included interpretations and applications of Bible passages that departed from the church’s understanding of Scripture”; meetings between Tucker and school personnel ensued; and Tucker was stripped of his chapel duties and, after further back-and-forth, was “terminated for his role in the chapel service and how his insubordinate conduct contributed to the divisive aftermath.”
Tucker promptly complained to the Equal Employment Opportunity Commission (EEOC), claiming racial discrimination. In 2019, citing Title VII, Tucker filed suit in federal district court, “claiming he was a victim of ‘racially discriminatory termination.’”
As Tucker is white, this claim may require a word. He said he was fired as a “direct response” to the chapel service and its message that “told Faith Christian’s students and parents that ‘they were guilty of racism.’” He said that “his termination and experiences at the school, including racial slurs he allegedly received or heard about,” indicated he was up against a “racially hostile environment.”
The district court “conclud[ed] that a jury must decide whether Tucker was a ‘minister.’” Faith Bible appealed to the 10th Circuit for summary judgment, but a panel of that court upheld the district court’s decision, and the full body denied an appeal to hear the case en banc.
The school, represented by the Becket Fund, is hoping the Supreme Court takes the case and reverses the circuit court’s ruling on the basis of the “ministerial exception,” a doctrine that prevents courts from inserting themselves into employment decisions by religious employers about their ministers.
The ministerial exception was codified in 2012 in the benchmark Supreme Court case Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC. In this case, a “called” schoolteacher at a Lutheran school in Michigan who taught religion, in addition to other subjects, was fired for insubordination, disruptive conduct, and threatening to sue the school — all acts contrary to church teachings. The Supreme Court said that churches, and church schools that promulgate their teachings, have the right to choose their own leaders without government interference. Chief Justice John Roberts wrote, “The church must be free to choose who will guide it on its way.”
The ministerial exception was enhanced in 2020 in a similar case out of California, Our Lady of Guadalupe School v. Morrissey-Berru. The court in that case upheld the dismissal of two teachers at two Catholic schools who, although not bearing the title “minister,” were “entrusted with the responsibility of instructing their students in the faith.” One teacher claimed age discrimination; the other said that she was sacked because she had requested a leave of absence for medical treatment. In conclusion, the court said:
When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.
Tucker signed on to all the normal stances a strict Christian school requires of its teachers: He was “expect[ed]” to “endorse Christianity” and “‘integrate’ a Christian worldview into [his] teaching,” which should be “Bible-oriented.” He felt called to serve as a chaplain at the school — indeed, he “affirmed that ‘the hand of the Lord’ was on him” — providing spiritual guidance to students and fellow teachers. He taught courses titled “Christian Leadership” and “Worldviews and Apologetics.” He planned chapel services, which were, according to the school, “a time for staff and students alike to hear from the Lord and to draw together spiritually.”
However, as is becoming common in ministerial exception cases, the progressive side, more secular now than ever, seeks to diminish the religious elements in the fired employee’s job. In the case, Faith Bible Chapel International v. Gregory Tucker, the appeals court panel called the school’s hiring documents — the “teacher handbook,” Tucker’s “job description,” and “his contract” — all of which spell out the school’s religious standards and expectation of behavior, “self-serving documents.”
As for Tucker himself, according to the Becket Fund, his attorneys called his chapel services “pep rallies”; his Bible courses became mere “comparative religion” courses. Tucker “claimed that he was primarily a science teacher, when 51 of the 53 courses he taught in his final eight years at Faith Christian were in the Bible department.”
As troubling as this ruling by the U.S. appeals court is, the possibility that churches, religious schools, and other religious entities must relinquish the right to determine who is or is not a minister to a civil jury is even more troubling.
Think about it: The next time an employee defined as a minister by his or her employer, a church or religious school, is let go, that church or school, if a U.S. court determines so, could be subjected to all the legal encumbrances — depositions and discovery, cross-examinations, lawyers’ arguments, jury deliberations — not to mention the onerous expense, of a jury trial.
Fear of such litigation could prompt a church to make ministerial choices with an eye on possible legal ramifications; it could force religious schools to retain teachers who are instructing contrary to their theological tenets or, by firing such a teacher, face a jury trial that could break them financially. The First Amendment was written to preclude government getting in the middle of intra-church disputes.
The 10th Circuit decided that jury trials for churches were the “cost of living” in a “highly regulated society.” This ruling is a glaring outlier among the high courts of America. The counsel for the Becket Fund writes in the petition for cert:
At the time of the decision [of the 10th Circuit], every other federal court of appeals and state supreme court to address this issue—thirteen in all—had gone the other way. Those courts treat church autonomy defenses such as the “ministerial exception” as a shield against the intrusions of merits litigation—not just the possible imposition of damages or reinstatement.
Indications are that the Supreme Court may be looking for a case in which to further define the ministerial exception. In 2021, a professor at a religious college in Massachusetts who “did not teach religion or religious texts” but “was still expected to ‘integrate her Christian faith into her teaching and scholarship’” was not considered a minister by the state supreme court. The case has since been settled, but, in denying a petition to take up the case due to pending litigation, Justice Samuel Alito, joined by three other justices, described “the state court’s understanding of religious education” as “troubling” and wrote that “in an appropriate future case, this Court may be required to resolve this important question of religious liberty.”
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