This term, the Supreme Court is scheduled to hear and consider Kristin Biel’s case. Biel was a teacher at St. James Catholic School in Torrance, California. She taught fifth graders in all subjects, including the Catholic faith, and supervised students in their religious worship. Some time after she was diagnosed with breast cancer, St. James informed her that she would not be brought back for the upcoming year. Biel sued the school alleging discrimination on the basis of her disability in violation of the Americans with Disabilities Act of 1990 (ADA). St. James, in turn, claimed that because Biel was a “minister” and St. James is a religious group, the ADA did not apply to their employment relationship. While her case was pending in the Ninth Circuit, nearly five years after she was fired, Biel passed away, and her estate is continuing the litigation. The Supreme Court granted St. James’s petition for writ of certiorari. Even if the Supreme Court rules in Biel’s favor, she will have prevailed only on the threshold question: whether the ADA applied to her employment.
The First Amendment’s Religion Clauses requires an exemption to certain anti-discrimination laws, like the ADA, for certain employees of religious employers. But lower courts disagree about which employees qualify for the so-called “ministerial exception.” This discontinuity among circuit and state courts has created uncertainty regarding which employees are “ministers” and thus not protected by anti-discrimination statutes. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Supreme Court formally recognized the existence of the exception and discussed some relevant facts to consider. In concurrence, Justice Clarence Thomas expressed concern that uncertainty may cause religious groups to conform to mainstream conceptions of religion and “ministerial” roles to receive equal treatment on this issue. Similarly, employees of religious groups may not assert their rights ex post or fully capture available gains ex ante (such as higher salaries) due to lack of information. Like Biel, even employees that do assert their rights may wait years.
The current circuit split centers on whether performance of religious tasks—one of four enumerated considerations in Hosanna-Tabor—is sufficient, standing alone, to consider such an employee a “minister.” Even those who believe such religious tasks to be sufficient seem to agree that religious duties can make one a “minister.” However, a close examination of the Establishment Clause, Hosanna-Tabor, and the purposes of the ministerial exception reveals that courts are asking the wrong question. The use of the word “minister” obfuscates who is exempted, and, despite the Court’s efforts, the Hosanna-Tabor considerations have turned into “factors.” Instead, the exception should apply to any employee of a religious group who fills a religious role. The Court should take the opportunity to clarify that the enumerated considerations in Hosanna-Tabor are guideposts of varying predictive value in ascertaining an employee’s “religious role.”
Clarifying and Reframing the “Ministerial Exception” by Tyler B. Lindley
A. Origin and Function
B. Hosanna-Tabor: The Supreme Court Breaks Its Silence
C. Post-Hosanna-Tabor: First Impressions
D. The Ninth Circuit’s Deviation
A. The “Ministerial” Misnomer
B. Factors Are Problematic
1. Factors do not work in this context.
2. The problem with factors and the Religion Clauses.
C. Reframing the Test and Solving the Split
A. Origin and Function
The ministerial exception is fundamentally rooted in the Religion Clauses of the First Amendment. Yet, its current application arose only in the latter half of the last century, as Congress passed nationwide anti-discrimination statutes applicable to private employers. In McClure v. Salvation Army, the Fifth Circuit addressed whether Title VII of the Civil Rights Act of 1964 covered Billie McClure, an official minister of the Salvation Army. The Fifth Circuit acknowledged that textually Title VII could cover McClure’s employment, yet noted that such a construction would likely be unconstitutional. Using the doctrine of constitutional avoidance, the McClure court concluded that “Congress did not intend, through the non-specific wording of the applicable provisions of Title VII, to regulate the employment relationship between church and minister.”
Thus, as a formal matter, the ministerial exception—at least at its inception—did not exempt certain employment relationships from anti-discrimination laws, but rather read such statutes as inapplicable to ministers and their religious employers. As the issue percolated among lower courts, there began to be at least some movement toward focusing on the function of the employee at issue. In EEOC v. Catholic University, the D.C. Circuit explained that the focus should not be on whether the employee is ordained, but instead on whether the area in which the employee works “is of fundamental importance to the spiritual mission of her church.”
B. Hosanna-Tabor: The Supreme Court Breaks Its Silence
The Supreme Court first addressed the existence and contours of the ministerial exception in Hosanna-Tabor in 2012. Cheryl Perich was hired by Hosanna-Tabor as a “called” teacher and received a “diploma of vocation,” which designated Perich as a minister. Her duties—which were largely similar to those of the “lay” teachers—included teaching religion class four days a week, leading students in daily prayer and devotional exercise, and attending weekly school-wide chapel service (which she led about twice a year). Perich was diagnosed with narcolepsy and, after a prolonged dispute, was fired for insubordination and disruptive behavior after she returned to work and refused to leave. Perich filed a claim with the EEOC, who subsequently filed suit against Hosanna-Tabor.
In recognizing and upholding the ministerial exception, the Court found that it was rooted in both the Free Exercise and Establishment Clause. Noting the frequent tension between the two, the Court explained that here, the Religion Clauses worked together: “The Free Exercise Clause [ ] protects a religious group’s right to shape its own faith and mission through its appointments,” and “the Establishment Clause prohibits government involvement in such ecclesiastical decisions.” Thus, even if a religious group attempts to waive the exception, the Establishment Clause would still prohibit courts from adjudicating the dispute. The Establishment Clause limits the court’s authority to inquire into a religious group’s justifications for termination:
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”—is the church’s alone.
After noting that the history behind the Religion Clauses justifies the exception, the Court turned to the question of whether Perich was a “minister.” Under the Court’s framework, Perich was clearly covered by the exception. Without the benefit of a marginal case, the Court was “reluctant[ ]”—the first time to have addressed the issue—“to adopt a rigid formula.” Instead, the Court worked backward, first concluding that Perich was a minister “given all the circumstances of her employment” and then reporting four of the “considerations” supporting that conclusion:
- Formal Title. “Formal title” focuses on the post-hiring circumstances of the employment: to what extent—if any—the employee is different from other employees or religious adherents.
- Substance Reflected in Her Title. The Court next detailed the requirements to become a called teacher and concluded that her title “reflected a significant degree of religious training followed by a formal process of commissioning.”
- Whether the Employee Held Herself Out as a Minister. For the Court, Perich’s own belief was indicative that she was a minister. It is unclear how often plaintiffs will admit to having held themselves out as ministers, particularly after Hosanna-Tabor.
- Job Duties. After detailing her responsibilities, the Court concluded that Perich’s duties reflected a role in conveying the Church’s message and carrying out its mission. This consideration’s primary purpose is to give weight to the performance of religious tasks. In explaining this consideration, the Court used the terms “duties” and “responsibilities,” but later in the opinion referred to the consideration as “important religious functions [ ] performed.” The use of the word function has caused confusion, as detailed below.
While the decision was unanimous, the two concurring opinions—one by Justice Thomas and one by Justice Samuel Alito, joined by Justice Elena Kagan—have been influential. Justice Thomas argued that the Establishment Clause requires courts to accept a religious group’s good-faith assertion that an employee is ministerial. At the heart of Justice Thomas’s analysis is concern that any “objective” test would cause religious groups to change their beliefs or practices to get equal constitutional protection. A malleable test with excessive uncertainty might cause certain religious groups to “conform its beliefs and practices” to the courts’ understanding, but a somewhat more predictable “multifactor analysis” would disadvantage those groups whose beliefs are not mainstream or popular. These effects, Justice Thomas argues, are constitutionally problematic and unavoidable without deference to a good-faith assertion.
Justices Alito and Kagan argued that Hosanna-Tabor should not change how circuit courts had been applying the exception. Justice Alito emphasized that focus on the term “minister” can be deceiving and problematic if courts fail to focus on the “function performed by persons who work for religious bodies.” The most relevant functions involve “engag[ing] in certain key religious activities,” such as “conducting of worship services and other religious ceremonies and rituals, as well as the critical process of communicating the faith.” After detailing the lower courts’ focus on “function,” Justice Alito warned that Hosanna-Tabor “should not be read to upset this consensus.” However, Justice Alito’s use of the word “function,” like that of the majority, oscillates between “tasks” and “role.” He speaks of Perich performing “key functions” but also of Perich’s “religious function” and “functional status” as a minister.
C. Post-Hosanna-Tabor: First Impressions
Just months after Hosanna-Tabor, the Fifth Circuit decided a similar case in Cannata v. Catholic Diocese of Austin. After being fired from his position as the church’s Music Director, Philip Cannata sued alleging discrimination in violation of the Age Discrimination in Employment Act (AEDA) and ADA.
The Fifth Circuit panel first confronted how to apply Hosanna-Tabor in light of its previous precedent, a three-factor test, with particular focus on “whether [the employee] engaged in activities traditionally considered ecclesiastical or religious, including whether the plaintiff attend to the religious needs of the faithful.” It concluded that Hosanna-Tabor requires “courts [to] not emphasize any one factor at the expense of other factors.” This conclusion is puzzling for at least two reasons. First, the opinion of Hosanna-Tabor does not command it. Perhaps the Cannata court equated eschewing a rigid formula and considering all considerations with a formal equalization of considerations. Of course, the Fifth Circuit’s conclusion is not incompatible with the holistic inquiry performed by the Court, but it certainly is not required. In fact, Justices Alito and Kagan read Hosanna-Tabor to confirm, not refute, a function-focused approach. Second, given the four considerations Hosanna-Tabor used, weighing each equally presents serious constitutional issues. For example, equating formal title with performing religious duties favors religions who apply titles to its religious leaders that courts are prepared to recognize as religious.
Without adopting a specific test, the court concluded that “Cannata falls within the ministerial exception.” It focused on the fact that, because the church had “established the importance of music to the celebration of mass,” Cannata “played a role in furthering the mission of the church and conveying its message to its congregants.” Thus, it is unclear whether the Fifth Circuit treated the Hosanna-Tabor considerations equally or focused on religious role.
In Conlon v. InterVaristy Christian Fellowship, the Sixth Circuit addressed whether the exception applied to a spiritual director who was fired after her marriage was breaking apart. After acknowledging that the Supreme Court refused to articulate a test, it summarily decided to “examine [the four factors from Hosanna-Tabor] here.” The court concluded that two of the four Hosanna-Tabor “factors”—the first (formal title) and fourth (duties)—were present. To decide whether only two considerations might be sufficient, the Sixth Circuit turned to the concurring opinions in Hosanna-Tabor. They concluded that since Justice Alito’s concurrence focused on the fourth consideration, and Justice Thomas’s on the first, “where both factors . . . are present, the ministerial exception clearly applies.” In discussing the fourth consideration, the Second Circuit used “duties” and “functions” interchangeably.
The Second Circuit addressed the question next in Fratello v. Archdocese of New York. Joanne Fratello, a principal at a Roman Catholic school, alleged that she was terminated because of her gender. The court acknowledged that Hosanna-Tabor required “assess[ing] the specific circumstances of employment” on a case-by-case basis. However, it noted that examining only Hosanna-Tabor’s enumerated considerations was appropriate when “they are adequate to resolve the particular circumstances of [the] case.” The court did not address which cases might require examination of other considerations or in which cases one or more of the considerations would be irrelevant. However, the fundamental idea is sound: when a limited number of considerations is sufficient to conclude that an employee is a minister, any other considerations become irrelevant.
Then, having concluded that three of the four considerations were present—including religious employment duties—the Second Circuit concluded that function should be the focus, but only where “the four considerations are relevant to a particular case”: “It is the relationship between the activities the employee performs for her employer, and the religious activities that the employer espouses and practices, that determines whether” the exception applies.
The Seventh Circuit tackled the issue for the first time post-Hosanna-Tabor in Grussgott v Milwaukee Jewish Day School, Inc. Miriam Grussgott, a teacher at a Jewish school, suffered from a brain tumor and was subsequently fired. In arguing that she should not be covered by the exception, Grussgott focused on distinguishing herself from Hosanna-Tabor’s Perich. The court concluded that giving credence to such an argument would in effect adopt a rigid formula that Hosanna-Tabor had specifically prohibited. Although recognizing “that the same four considerations need not be present in every case,” it examined those “factors” because “they provide a useful framework.”
An amicus requested the court adopt a “purely functional approach,” which would focus primarily on whether the employee performed religious functions. The court rejected this argument for two reasons: First, such a test would be more rigid than applying the considerations mechanically. Second, focus on the fourth consideration—employment duties—at the expense of the other three would potentially render them wholly unnecessary. Because Grussgott treated duties and functions as synonymous, it did not address the possibility that the performance of certain tasks—the fourth consdieration—and religious role were fundamentally different.
D. The Ninth Circuit’s Deviation
In Biel v. St. James School, the Ninth Circuit was the first to address whether the ministerial exception applied when—at least according to the panel majority—only one Hosanna-Tabor consideration applied. The facts of the case are discussed in greater detail in the introduction. Biel was a Catholic adherent (St. James preferred to hire Catholics) but had no pedagogical training when hired. She was trained briefly at St. James in both secular and religious matters. She taught religion for thirty minutes per day, four days a week. She joined, but did not lead, her students in twice-daily prayer and attended the monthly, schoolwide mass. Her job description required her to work within the Catholic framework and mission of the school, which was to raise good Catholic adherents and educate students in the Catholic faith.
The panel majority asserted that the Supreme Court in Hosanna-Tabor analyzed the four considerations before concluding that the ministerial exception applied to Perich, when in fact, the Court twice concluded that the ministerial exception applied before working through the considerations. This conceptual error led the Biel panel majority to treat the four considerations as factors to be counted rather than some circumstances to be weighed. In fact, the panel majority warned against “collaps[ing the] considerations” into each other, something that would only be pertinent if the considerations were factors; the presence of one could offset the absence of another.
Not only did the panel apply the considerations mechanically, it did so by analyzing whether, with respect to the particular consideration, “Biel and Perich ha[d] anything in common.” After concluding that only the fourth consdieration weighed in favor of applying the ministerial exception, the panel majority refused to apply the exception because, otherwise, most of the analysis in Hosanna-Tabor “would be irrelevant dicta.” Yet, Hosanna-Tabor explicitly declined to decide whether one consideration would be sufficient, and it is easy to see why the Court might want to describe all potentially relevant considerations in its first case on the exception.
Then, perhaps unnecessarily, the court opined that Biel’s employment did not require her to be involved enough “in her students’ spiritual lives” to even be considered a strong fourth consideration because the ministerial exception is limited to those who “serve in a leadership role in the faith.” However, in Morrisey-Berru v. Our Lady of Guadalupe School, a subsequent, unpublished decision also before the Supreme Court, a Ninth Circuit panel concluded that regardless of how strong the fourth consideration weighs in favor of applying the exception, it can never be sufficient alone.
Biel reveals at least two key insights into circuit courts’ treatment of the ministerial exception. First, the four considerations are fully engrained in the analysis and are difficult to apply as they currently stand. The panel, not unlike other circuits, clearly counted factors: “At most, only one of the four Hosanna-Tabor considerations weighs in St. James’s favor. No federal court of appeals has applied the ministerial exception in a case that bears so little resemblance to Hosanna-Tabor.” In dissent, Judge Raymond Fisher also used the four-consideration approach—at least as a framework to critique the majority—and concluded that two of the four considerations were present and that the ministerial exception should apply. The majority responded by claiming that the dissent had collapsed the distinction between formal title and substance reflected in that title. The majority did not explain how to decide which facts go into which bucket or why the facts set out by Judge Fisher, even if properly in the formal title bucket, does not mean that Biel’s formal title is religious. This disagreement shows that the add-up-the-considerations approach is unwieldy; in particular, there is no guidance about which facts belong to which consideration or how many facts are sufficient.
Second, Biel shows that the undercurrent of Cannata’s “equal consideration” conclusion still has teeth. The panel in Biel agreed with Cannata, at least partially, that any single consideration cannot be sufficient. It is unclear if Grussgott is consistent with the Ninth Circuit’s approach, something Biel explicitly acknowledged.
But Judge Ryan Nelson’s dissent from the order denying rehearing en banc, joined by eight other judges, argued that the Biel majority had wrongly applied Hosanna-Tabor and explicitly departed from other circuits and states. Because no other circuit has addressed the issue when only one consideration was present, Judge Nelson must have been referring to the courts’ growing consensus toward weighing the fourth consideration heavily. For instance, the Massachusetts Supreme Court adopted the position for which Judge Nelson argues in Temple Emanuel of Newton v. Massachusetts Commission Against Discrimination.
Judge Nelson first criticized the Biel majority for using a “resemblance-to-Perich test.” Such a standard, according to Judge Nelson, creates a “function-plus” test, wherein an employee’s religious functions need something else for the exception to be applicable. In addition to the fact that no circuit has applied such a test, at least three circuits have expressly rejected that approach. While Judge Nelson’s dissent largely used “function” as role, emphasizing Biel’s “religious function,” he also referred once to the “function performed” by Biel.
Next, the nine dissenting judges cited to Justice Alito’s concurring opinion in Hosanna-Tabor to argue that the other three considerations are less important because of their context-specific nature and application. Judge Nelson asserted that the panel majority missed the import of Hosanna-Tabor:
Ignoring the warning of Justices Alito and Kagan (and Justice Thomas), the panel majority found that because three of the considerations—all of which related to Biel’s title—were not present, the exception did not apply. The only factor in which it did find Biel and Perich similar was in the religious function each performed. Yet this similarity is particularly significant to religious groups whose beliefs and practices may render the other three considerations less relevant or not relevant at all. Such is the case here.
Lastly, Judge Nelson concluded that the panel majority’s approach to the Hosanna-Tabor considerations faces Establishment Clause problems. Because a religious group cannot force an employee to hold herself out as a minister and because the substance reflected in an employee’s title is often defined by preexisting religious beliefs, the function-plus test demands religious groups to give religious titles that courts are prepared to accept as religious. “[S]uch a demand for ecclesiastical titles inherently violates the Establishment Clause. Requiring religious titles is particularly problematic when religious organizations do not bestow such titles on some (or any) of their ministers yet clearly understand the employee’s role to carry religious significance.”
In fact, any determination as to a title’s inherent religiousness is problematic unless courts accept a religious group’s assertion that a title is religious. But this creates further problems for the factor analysis. For example, if a religious group asserts that an employee’s title and duties are religious, and a court accepts this assertion, that would suffice to apply the ministerial exception in most circuits. Given the difficulties employees face in obtaining evidence of subterfuge and the limited scope of a pretext inquiry, this approach comes practically very close to Justice Thomas’s. And, on the other hand, if a religion does not give court-recognized religious titles, treating equally formal title and religious duties means that religious groups whose titles are not judicially favored “have less control over employing” its religious employees than other groups.
Yet, a close look at Judge Nelson’s dissent shows that the factor analysis itself—not its application—is pulling courts away from the purposes of the exception. First, there is still confusion as to whether the function upon which courts should focus is whether an employee performs religious employment duties or, more broadly, whether the employment has a “ministerial” function. Second, because the opinion in Hosanna-Tabor refused to put forth a concrete test, any test based on the four considerations tends to incorporate Justice Alito’s and Justice Thomas’s concurring opinions. But, as discussed above, Justice Thomas accepts no consideration beyond the religious group’s good-faith assertion. Regardless of a judge’s own opinion as to the practicality of that approach, Justice Thomas’s opinion cannot be construed as supporting a mechanical four-factor approach.
Since Biel and Morrissey-Berru were decided, the Seventh Circuit and the Eastern District of Tennessee have acknowledged the circuit split and disagreed with the Ninth Circuit’s application. In Sterlinski v. Catholic Bishop of Chicago, Judge Frank Easterbrook argued that courts should look at a variety of factors, “not to determine what judges think as an original matter, but to determine whether the employee . . . was serving a religious function.” Thus, the panel majority in Biel erred by examining the four considerations but “then [going] on to make an independent assessment.”
The ministerial exception thus far has undergone the typical standard-rule pendulum swing. Hosanna-Tabor told lower courts that employees are exempted when they fill a ministerial role and gave some indicia of such a role. Lower courts have rejected this standard-like test and have instead mechanically applied an n-factor test, even when claiming not to do so. To varying degrees, lower courts took the standard and made it into a rule: when a certain number or type of factors apply, the ministerial exception applies. Foreseeing the possibility of “wrong” outcomes using this approach, some have put a thumb on the scale (focusing on function), about which circuits are currently split. The Supreme Court should take this opportunity in deciding Biel to reiterate that the ministerial exception must be broad enough to encompass all religions equally, something the Ninth Circuit’s (and others) approach fails to do.
A. The “Ministerial” Misnomer
Asking whether an employee is a minister for the purposes of the ministerial exception is deeply problematic. First, framing the question in ministerial terms is a red herring and leads courts think about the question incorrectly. The Second Circuit, in Rweyemamu v. Cote in 2008, acknowledged that the term is merely “judicial shorthand,” but its continued use has created unnecessary difficulty. For example, early courts wrestled with whether the ministerial exception required the employee to be officially ordained. Such a question seems trivial when considering the purposes of the exception, but is more difficult when implicitly or explicitly labelling an employee a minister.
The Biel panel majority’s discussion of religious duties is another example. Because “minister” carries an exclusionary connotation, constrained to “leader[s] of a congregation,” Biel concluded that an employee must be a leader of the faith. Yet that does not square with the Perich’s role in Hosanna-Tabor or the fundamental purpose of the exception: to give religious group’s autonomy over employees who shape and communicate their religious message. This surely extends to more than just the leader of the congregation. For example, in the Church of Jesus Christ of Latter-day Saints, the hierarchal structure of the church is such that many positions are clearly religious, but have no “stewardship,” or authority, over any particular member or congregation. In fact, because the Church primarily operates on a system of lay clergy, employees—in their employment capacity—are specifically placed outside the hierarchal structure. Despite the lack of “leadership,” these employees play a particularly important religious role for the church.
Second, the question is circular. “Minister,” for the purposes of the exception, is a wholly invented concept. Defining “minister” by asking whether an employee is a minister is circular. This circularity perhaps explains why some courts have mistakenly used the Hosanna-Tabor considerations as factors, the presence of which makes an employee a minister. Lacking familiarity with the religious group, the particular role an employee fills within that religious group, or the definition of “minister,” judges rely heavily on the considerations enumerated in Hosanna-Tabor. From this viewpoint, it is entirely unsurprising that no court since Hosanna-Tabor, despite paying lip service to the possibility, has found a circumstance of employment that does not fit into one of the four Hosanna-Tabor considerations.
The proper question can be derived from purpose of the exception. In Hosanna-Tabor, Chief Justice John Roberts explained that the ministerial exception is required by the Religion Clauses to protect a religious group’s absolute authority to shape, define, and convey its message to its adherents and the world, and to prevent the government from becoming involved with such decisions, even if such involvement would be harmless in any particular case. In short, the ministerial exception covers employees who fill a religious role for religious employers. The religious-role test incorporates the vital tasks of conveying the religion to the next generation, shaping the religious message, and leading adherents in their religious worship. At the same time, the test is not so broad as to include those who perform religiously significant but secular tasks, such as a janitor in a house of worship. By focusing on factors, the Biel majority missed the proverbial forest for the trees.
Focusing on “religious role” is also more consistent with Hosanna-Tabor. The emphasis the Court placed on “considerations” as opposed to “factors” reveals a deeper focus on Perich’s role. Consider the Court’s refusal to consider the absence of a consideration as evidence against application of the exception, its insistence that other facts may be relevant, and its rejection of the lower court’s mechanical considerations. That treatment shows that the ministerial exception is not something that can be divined by counting factors and does not require a traditionally understood “ministerial” role.
One aspect of Hosanna-Tabor that obscures the religious-role focus—reflected in the circuit courts’ treatment of the issue—is the interchangeable use of duty, as in employment duties, and function. As detailed above, in discussing the fourth consideration, Hosanna-Tabor referred to fulfilling religious duties. But when summarizing the considerations, it used the phrase “performing religious functions.” In this sense, duty and function are synonymous. Performing functions and fulfilling duties both mean performing religious tasks as part of one’s employment. However, “function” can also be used as synonymous with “role,” such as the phrase “serving a religious function.” Sterlinski used it as role, Fratello as task performed, and other courts used them almost interchangeably. Thus, one might respond to the Biel panel majority—who was concerned that focus on “function” would render the Hosanna-Tabor opinion dicta—that focusing on “function” was all the Court did. “Function,” as in tasks, alone can be sufficient for an employee to fill a religious function, as in role. This is just one way in which Biel’s focus on whether Biel was a “minister” detracts from the question of whether she filled a religious role.
Additionally, defining function as tasks with respect to the fourth consideration makes the inquiry more coherent. Performing religious tasks does not necessarily mean the employee fills a religious role. But if the fourth consideration asks “whether the employee serves a religious function,” it is clearly sufficient and, frankly, the only thing that really matters. This becomes clear when courts attempt to compare religious function (as in role) to considerations like “formal title.” A lack of formal title cannot, and should not, overcome the fact that an employee fills a religious role because protecting such roles from government interference is the fundamental purpose of the ministerial exception.
B. Factors Are Problematic
Notwithstanding the Court’s repeated pleas to not focus only on the four enumerated considerations and its emphasis on “considerations” as opposed to factors, lower courts are fully embedded in the factor analysis. Even if courts were asking the right question and defining the fourth consideration as religious tasks, the treatment of the considerations as factors would not be consistent with the purposes of the ministerial exception. Moreover, such treatment threatens to violate the Religion Clauses.
1. Factors do not work in this context.
Despite courts’ persistent efforts to find a set of factors that function as a rule, factors are particularly unwieldy in this context. First, these factors do not necessarily show that an employee is a minister. And their absence certainly does not mean that one is not a minister. Take, for example, the case of a hypothetical employee who believes she served a religious role and her degree in theology was an important factor in her hiring. But she performed no religious tasks, and the employer did not recognize her employment as fulfilling a religious role. Or, consider a modification, where her employer gives her a nominal religious title, but she doesn’t consider herself to have a religious role. A factor analysis suggests that these should at least be close cases. Yet using the religious-role test, both claims can be easily dismissed.
Second, treating the Hosanna-Tabor considerations as factors assumes that the four considerations are comprehensive and well-defined. If counting factors is how one determines whether an employee fills a religious role, then those factors should encompass all potentially relevant facts, otherwise the presence of two factors would mean nothing, as an infinite number of factors on the other side might be relevant. The Hosanna-Tabor considerations are not so flexible as to include additional facts, as shown by consistent acknowledgement among courts that other considerations may be relevant.
Additionally, if the precise number of factors is important in the final determination, then those factors should be well-defined and the lines drawn without arbitrariness. The argument between the panel majority and dissent in Biel shows that Hosanna-Tabor chose not to specify which facts should fall into which bucket. Plus, the Court’s express refusal to determine whether a single consideration might be sufficient, together with Justice Alito’s and Kagan’s opinion that function should be the focus, show that current delineations do not reflect an effort to balance the importance of the considerations.
Finally, as Judge Easterbrook noted, applying the Hosanna-Tabor considerations as a strict factor analysis can result in an attempt to divine an objectively right answer. Not only is it unclear that this question can be answered objectively, it is even less clear courts should care about any objective answer. What matters is whether the claim by religious employers that an employee filled a religious role is “sincere.”
2. The problem with factors and the Religion Clauses.
A strict factor-based analysis, which must rely on a finite number of factors (as described above), means that any single factor could be dispositive, regardless of the weight placed on each factor. For example, imagine a situation in which the only difference between an employee covered by the exception and one who is not is the court-perceived religiousness of the formal title. Normally, there is no particular problem in having any one factor decide the marginal case. However, here, the presence of finite factors practically means that religions that grant court-approved religious titles are favored before the law. Of course, non-orthodox religions are often practically disadvantaged. But accepting a test that favors orthodoxy goes beyond any natural proclivity of judges. Justices Alito and Kagan, and the nine dissenting Ninth Circuit judges, recognized the conflict with the Establishment Clause’s mandate to treat religious group’s equally. More practically problematic, an employee’s belief as to the circumstances of her employment—something over which her employer has little control and is difficult to disprove—could impinge on a religious group’s freedom with respect to its religious employees.
C. Reframing the Test and Solving the Split
As shown above, in light of Hosanna-Tabor and the underlying purposes of the exception, the best approach is to ask whether the employee fills a religious role. In answering that question, courts should turn to considerations only as guideposts in answering the larger question. When thus framed, the dispute about whether performing religious tasks can be sufficient to indicate that an employee fills a religious role is easily resolved in the affirmative. The Biel panel majority decided to the contrary because solely performing religious tasks could not make an employee a “minister” and because the absence of the three other factors. The religious-role test makes both concerns irrelevant. Courts should neither ask what makes an employee a “minister,” whatever that might mean, nor count factors. Of course, not all employees who perform religious tasks fill a religious role. Certain tasks are more central than others. But, as Justices Alito and Kagan noted, some tasks are so central to a religious group’s autonomy that their performance strongly indicates a religious role.
This test tracks that proposed by Professors Ira Lupu and Robert Tuttle, although it takes a different legal route. While I disagree with Professors Lupu and Tuttle about grounding the exception solely on the Establishment Clause, I agree that, defined too broadly or without hard edges, the ministerial exception may become “without limit.” However, constraining the type of relevant functions on which we agree—“religious governance, worship, [and] transmission of the faith”—is possible, and desirable, even under the dual Religion Clause logic of Hosanna Tabor.
Because the Ninth Circuit’s rigid approach is inconsistent with Hosanna-Tabor and other circuits, the Court is likely to reverse the Ninth Circuit, but the main fight will be over how broad the holding should be. Establishing the religious-role test and remanding the case, pushing future factual conflicts to the lower courts, could garner more votes. However, it is possible that the new conservative majority could set a per se rule for teachers at religious schools. In either case, we should expect religious groups of all kinds to continue to seek ways to ensure coverage of the ministerial exception, such as changing job titles, explicitly delegating religious tasks, and designating employees as religious in employment contracts.
Given the disagreement and confusion about which test is appropriate in determining whether an employee is covered by the ministerial exception, any clarification by the Court will be helpful. The Court should adopt the religious-role test, which simply asks whether the employee serves a religious role. In answering the question, courts can use various guideposts. But these guideposts are not mechanical factors, the absence of which imply that the employment is not religious. And neither do they fit neatly into certain categories. If courts will apply the religious-role test, they can ensure religious employers are treated equally despite theological differences.
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Featured Image: Credit to duncan c (Flickr).
 B.S. 2018, Brigham Young University; J.D. Candidate 2021, The University of Chicago Law School. For helpful feedback and discussion, I thank Geoffrey Stone, Douglas Baird, Rob Barthelmess, Jonathan Acevedo, Addison Bennett, Parag Dharmavarapu, and The University of Chicago Law Review. I would also like to thank my wife, Katrina Lindley, for her indispensable discussion and support.