Monday, 23 January 2012

Supreme Court backs ministerial exception

Churches are exempt from employment law requirements regarding their ministers, says the U.S. Supreme Court, in a case that has implications for former Scientologists suing the movement. But key issues still need to be tested.

The U.S. Supreme Court this week backed a church that sacked its minister, confirming that the principle of ministerial exception exempted them from a lawsuit claiming employment discrimination.

The Supreme Court delivered its unanimous opinion in the Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission et al on Janary 11, overturning an appeal court ruling against the church.

But the ruling, written by Chief Justice John Roberts Jr., did not offer a fixed definition of what it is to be a minister.

And it is still not clear – whatever the judgment says – just how far the First Amendment rights protecting religious freedom will be allowed to trump other rights.

The opinion does however appear to leave the door open for future cases involving former church employees.

But even if ministerial exception only applies to employees considered ministers, one crucial question remains unanswered: who qualifies as a minister?

The Court ruled that Hosanna-Tabor Evangelical Lutheran Church and School could legitimately invoke the principle of ministerial exception to get a case brought against it by a former teacher-minister dismissed.

Ministerial exception derives from the First Amendment of the U.S. Constitution, which prevents the state meddling in Church affairs: this ruling means that churches are not subject to the strictures of employment law in dealing with their ministers.

In this case Cheryl Perich, a teacher with the church, tried to come back to work after a period off for medical reasons. When she was told the post was no longer available, she threatened legal action. She was sacked and so she sued.

The church argued that her threat of legal action had violated a Church tenet that disputes should be settled internally.

By the time the case got to the Supreme Court, the issue turned to a large extent on whether or not Perich could be considered a minister.

While the Court decided that she was, it added:

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.[i]

The Equal Employment Opportunity Commission (EEOC), who backed Perich in her lawsuit, had tried to argue that the church had cited religious grounds simply as a pretext for dismissing her.

But that missed the point of ministerial exception, the court ruled.

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.[ii]

A “parade of horribles”

The Supreme Court also rejected the argument from the EEOC and Perich that recognition of ministerial exception in this case would mean churches could get away with all kind of offences – or as the court put it, rather patronisingly, “a parade of horribles”.

It did not accept the EEOC’s argument that:

…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.[iii]

It appeared more persuaded by Hosanna-Tabor’s argument that ministerial exception would in no way

…bar criminal prosecutions for interfering 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.[iv]

Concluding, the judgment said:

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.[v]

It is this part of the judgment that appears to leave the door open to further cases against churches.

If you want to take a glass-half-full approach, you can take comfort from that last passage – that, and the court’s view that ministerial exception cannot be allowed to act as a shield for church abuses.

That’s what the Tabor church argued at least: and the court seemed persuaded.

The court seemed equally impressed by the church’s reassurance that ministerial exception only applied to – well, ministers.

But that begs the question: who gets to say who qualifies as a minister?

Explicitly declining to offer a one-size-fits-all formula to settle the issue, the Supreme Court’s ruling nevertheless offers some clues.

Being called a minister certainly helps – though it did not consider this in itself conclusive.[vi] Perhaps more important,  the court did not believe an employee’s duties had to be exclusively religious for ministerial exception to be applicable.

For although Perich’s specifically religious duties only took up 45 minutes of each day, the court argued:

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… The issue before us … is not one that can be resolved by a stopwatch.[vii]

Scientology’s line

With this opinion, the court has spread the net wider than many, more secular-minded commentators are comfortable with.

But they argued that once they had established that they were indeed dealing with a minister, then the First Amendment effectively decided the case for them: The church must be free to choose those who will guide it on its way,” the opinion concluded.

It does not hard to see how Scientology’s lawyers will spin it: leaked internal documents make it clear the movement likes to stretch its definition of minister pretty wide.

A request for relevant documentation at Why We Protest – hive mind of the Anonymous conspiracy – brought a flurry of interesting candidates.

A 1994 Scientology document listed those posts that qualified for ministerial exception included not just chaplains but case supervisors and auditors – those involved in the “therapy” side of the Scientology process: No surprise there.[ix]

But another contributor pointed out that Scientology attorney Jeanne Reynolds had pitched the idea that members of the movement’s Sea Org cadre should be treated as religious workers for immigration requirements – and that included translators, musicians and booksellers.

Describing the Sea Org as a religious order in a letter to June 2007 U.S. Citizenship and Immigration Services she wrote:

It is unacceptable that the USCIS be given carte blanche to determine what is a “rational relationship” for a Scientology minister to do or not do as part of his ministerial duties since that would require excessive entanglement.”[x]

And it rather looks as if at least one Supreme Court judge might agree. For Justice Clarence Thomas, while he went along with the main opinion, said he would go further.

Setting out his position in a separate opinion, he said that in his view:

…the Religion Clauses require civil courts to apply the ministerial exception and to defer to a reli­gious organization’s good-faith understanding of who qualifies as its minister.[xi]

And if he is really that accommodating, it is difficult to imagine him quibbling over what constitutes good faith.

Of course the whole basis of Scientology’s well-documented “religious cloaking” exercise was precisely to win the tax breaks and legal protection afforded to churches, as documents dating back to the era of the movement’s founder, L. Ron Hubbard, make clear.

Hubbard spelt it out as early as 1962 in a policy letter:

Scientology 1970 is being planned on a religious organization basis throughout the world.

This will not upset in any way the usual activities of any organization. It is entirely a matter for accountants and solicitors. [xii]

In another policy letter from 1969 he wrote: “Visual evidences that Scientology is a religion are mandatory…,” which rather suggests that presentation was more important than the substance.[xiii]

The testimony of former members who have said that the wearing of dog collars and the staging of services was strictly for the benefit of fooling outsiders – such as gullible academics – tends to bear this out.

This objective has been pursued ever since, with the current leader David Miscavige overseeing a campaign that won the movement recognition from the U.S. Internal Revenue Service as a church in 1993.[xiv]

But it would take a brave lawyer to try to challenge the whole basis of Scientology’s claims to religious status in an employment law case.

Unfettered discretion

Critics of the principle of ministerial exception say it risks becoming a carte blanche for churches to commit and cover up all kinds of abuse: this is the “unfettered discretion” argument brushed aside by the Supreme Court.

In its dismissal of that issue, the Court referred in passing – without actually quoting it – to a submission from the American Bar Association (ABA), which supported the EEOC’s position.

One passage in particular from that submission deserves attention.

… the logic of petitioner’s position [the Hosanna-Tabor Church] threatens to impair both court proceedings and government investigations of unlawful conduct in a variety of circumstances involving religious organizations.

Petitioner justifies terminating Perich on the ground that she violated its tenet that “fellow believers generally should not sue one another in secular courts.” …

A different religious entity might similarly invoke its teachings to forbid its employees from testifying in a civil lawsuit between other church members, or from reporting other members’ criminal misconduct to civil authorities, or from testifying against other members before a grand jury or in a criminal trial.

If petitioner’s religious reason for retaliating against Perich suffices to excuse petitioner from complying with the ADA’s [Americans with Disabilities Act] anti-retaliation provision, it is not clear why other religious organizations could not similarly justify their non-compliance with laws forbidding retaliation against witnesses in criminal investigations and other proceedings…

No provision of the Constitution demands that result.[xv]

It is not hard to see how this argument would apply to a lawsuit against Scientology.

It is a high crime for Scientologists to publicly disavow the movement. It is also forbidden to make any public statements against Scientology or Scientologists or bring any civil suit against any Scientology organization or Scientologist.[xvi]

But as the ABA argued, it does not seem reasonable – or even constitutional – to let such extreme restrictions trump a citizen's other rights.

The Supreme Court, however, did not see a problem.

Hosanna-Tabor argued – and the Court seemed to accept – that ministerial exception had been around in the lower courts for 40 years without giving rise to the dire consequenc­es – the “parade of horribles” – predicted by the EEOC and Perich.

But could it not be that this is because ministerial exception has had such a chilling effect?

Could it not be that such cases are not emerging from the lower courts precisely because the stifling effect of ministerial exception prevents them from getting off the ground in the first place?

Consider what happened, for example, to the cases brought by Claire and Marc Headley – and if it’s a “parade of horribles” you want, look no further.[xvii]

The Headleys filed their cases in the California courts in 2009. Both were dismissed in summary judgments issued by Judge Dale S. Fischer on August 5, 2010.

Marc Headley alleged he was forced to work long hours below the minimum wage at Scientology’s California centre, known as the Int. Base.[xviii] He described seeing colleagues assaulted and detailed the physical abuse that he himself suffered.

He also alleged that the Sea Org illegally used child labour, a claim that has appeared in other lawsuits filed by former members.[xix]

Claire Headley had argued her claim was valid under human trafficking laws because:

1.      Defendants coerced her into having two abortions;
2.    Defendants placed restrictions on Sea Org members’ ability to leave;
3.     Defendants pursue Sea Org members who leave without routing out and attempt to dissuade them from their decision;
4.    Defendants discipline Sea Org members who even express a desire to leave;
5.     Defendants censor Sea Org members’ communications;
6.    Defendants’ discipline of Sea Org members includes sleep and eating deprivation and heavy manual labour
7.     Defendants attempted to force Plaintiff to divorce her husband.[xx]

But in her rulings, Judge Fischer took the view that the Headleys knew what they were signing up for when they joined the Sea Org.

In both cases she accepted Scientology’s argument that employment conditions and practices in the Sea Org were covered by ministerial exception.[xxi]

And having considered all the points advanced by Claire Headley, the judge took the view that the principle of ministerial exception trumped all the issues raised.

“…Defendants here represent that the challenged conduct was doctrinally motivated,” she noted in her ruling against Claire Headley.

“…Therefore, inquiry into these allegations would entangle the Court in the religious doctrine of Scientology and the doctrinally-motivated practices of the Sea Org.”[xxii]

In both rulings, she rejected as “circular” the Headleys’ arguments that Scientology doctrine did not sanction such abuses.

“Determining whether Scientology’s practices of routing out, censorship, or heavy manual labor as a form of discipline, for example, constitute involuntary servitude within the meaning of the TVPA [Trafficking Victims Protection Act] is precisely the type of entanglement that the Religion Clauses prohibit.”[xxiii]

I have argued previously that this judgment ignored issues such as the fact that both Claire and Marc Headley were recruited when they were minors, which surely raises issues of informed consent.

Both these cases are on appeal and oral arguments start on February 9.[xxiv]

Last week’s Supreme Court ruling, while providing no clear definition of who qualifies as a minister and how far ministerial exception trumps other legal considerations, at least leaves the door open for these cases to be heard.

It will be for future judgments then to set the limits to what churches can get away with in their treatment of employees.

If any such case reaches the Supreme Court, one can only hope the judges will be a little less complacent about the dangers of “unfettered discretion”.[xxv]

[i] Pages 15-16 of the judgment. The full January 11 U.S. Supreme Court ruling in Hosanna-Tabor Evangelical Lutheran Church and School v; Equal Employment Opportunity Commission et al is here. You will also find a useful summary – or “syllabus” of the case preceding the actual judgment. And while the judgment was adopted unanimously, you will also find two opinions from three of the Court’s judges, nuancing their positions. I set out a slightly more detailed summary of the Perich case in a previous posting: Legal Update II: the Headleys.
[ii] Page 20 of the judgment.
Similarly, although Perich was no longer seeking reinstatement but compensation and damages for wrongful dismissal – and so was not asking the court to force upon a church an employee it did not want – the court said it could not rule in her favour on this matter either. Any such decision would still mean finding that the church had unfairly dismissed her –just what the ministerial exception prevents.
[iii] Page 21 of the judgment.
[iv] The court’s treatment of the EEOC’s argument and the church’s rebuttal appear on pages 20-21 of the judgment.
[v] Pages 21-22 of the judgment.
[vi] Page 18 of the judgment. Overturning a ruling by the Sixth Circuit Court in Perich’s favour, the Supreme Court argued that the lower court should have given more weight to the fact that as a “called” teacher, Perich was a commissioned minister. The Hosanna–Tabor church employed two types of school teachers: “lay” teachers and “called” teachers. Perich came into the second category. “Called” teachers are those called by God to teaching as a vocation – and a “called” teacher receives the formal title “Minister of Religion”.
[vii] Page 19 of the judgment.
[ix] Scientology Policy Directive, April 9, 1994, among a batch of documents produced following the movement’s controversial settlement with the Internal Revenue Service originally posted by WikiLeaks and subsequently picked up at Why We Protest.
[x] From page 17 of her June 25, 2007 letter to the U.S. Citizenship and Immigration Services (USCIS). The references to translators, musicians and booksellers are on pages 13 and 14 of the letter.
[xi] Justice Clarence Thomas’ separate opinion is attached to the main one here.
[xii] Hubbard Communications Office Policy Letter, October 29, 1962: “Religion”: for a fair use copy see Caroline Letkeman’s website here.
[xiii] “Religion”: Hubbard Communications Policy Letter, February 12, 1969. Widely reproduced on the Internet.
[xiv] For chapter and verse on how Miscavige developed the fiction of Scientology as a religious organisation, look no further than former executive Larry Brennan’s: “The Miscavige Legal Statements: a Study in Perjury and Lies” The title gives you a rough idea.
Here is not the place to hash out the debate as to whether or not Scientology is a religion: but it seems reasonable to say that this aspect of its existence is at best an ancillary part of its operations.
[xv] The ABA is the Federal Respondent 29 referred to in the Supreme Court judgment and the quoted passage is on pages 46-7 of their submission.
[xvi] All these offences and more are listed in “The Ethics Codes”, Chapter Seven of An Introduction to Scientology Ethics, pages 206 to 223 of my 1989 edition.
[xvii] If this passage seems familiar to regular readers it is based on a précis of an earlier summary in a posting from last year, Legal Update II: the Headleys, in which I previewed the Supreme Court hearings on Tabor (no sense in reinventing the wheel).
For my initial write up of Marc Headley’s lawsuit, see here. He described his experiences in more detail at a conference in Hamburg, Germany in 2008, which I covered here. For coverage of the speech he gave at a Los Angeles press conference in 2010 together with other former Sea Org members to publicise abuses inside this part of Scientology’s operations, see here. And he has written up his story in a book, BlownforGood, available here. You can find my initial write-up of Claire Headley’s case here.
[xviii] You can find a copy of Headley’s original complaint here.
[xix] This forms part of Laura DeCrescenzo’s lawsuit. It also features in one of two lawsuits filed in March 2011, by Daniel Montalvo, but they were settled in October, 2011. The November 2009 lawsuit filed by John Lindstein contains similar, striking allegations: but it was settled in December 2010.
[xx] Op. cit.: page seven of the judgment.
[xxi] Claire Headley v. Church of Scientology International et al, judgment issued August 5, 2010: page seven of the judgment.
[xxii] Op. cit.: page seven of the judgment.
[xxiii] Op. cit.: page eight of the judgment.
[xxiv] The Headleys might also be encouraged that even before the Supreme Court ruling an appeal court reinstated another lawsuit by a former Sea Org member, Laura DeCrescenzo (though ministerial exception was not the central issue there). See my earlier posting, Lawsuits Update I: Laura DeCrescenzo, and attorney Scott Pilutik’s analysis at his blog, Reality-based Community. See also Pilutik’s critique of Judge Fischer’s dismissal of Claire Headley’s case in a posting to the Why We Protest message board.
[xxv] In the complaints he filed for Marc and Claire Headley, lawyer Barry Van Sickle attacked the notion that all members of Scientology’s Sea Organization perform religious functions. In Claire Headley’s complaint, he argued: “She was not a minister and Golden Era [her Scientology employer] was not a church.” Her duties were mainly “clerical, commercial or secular” in nature, he wrote. In Marc Headley’s complaint, he made the same point: “Plaintiff’s duties were secular and commercial in nature. Golden Era Productions is a business enterprise.” Marc Headley had worked mainly on film and promotional material that were sold commercially.
One cannot help wondering however, if the Hosanna Tabor case has limited his room for manoeuvre here.


  1. Thanks for this nice explanation of a complicated situation.

    Looks like many of the documents you reference in your footnotes are located on your computer hard drive, and not on the internet.

  2. Thanks for the feedback: I never did work out how to get the numbered links to take readers down to the relevant notes. But I tried a few of the links in the notes at random and they seemed to work. I'll do a more thorough check when I have time and fix any problems I find (which may be down to the fact that my laptop gave up the ghost half-way through this article.Can't say I blame it: it was pretty dry stuff).