Hosanna-Tabor: Why Damages Did Not Avoid the Ministerial Exception

Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, 565 U.S. 171 (2012), recognized a ministerial exception under the First Amendment’s Religion Clauses and applied it to a commissioned schoolteacher’s termination-based discrimination suit. The decision is significant both for its contextual treatment of the employee’s role and for its conclusion that damages could interfere with ministerial selection just as reinstatement would.

The teacher’s appointment and disputed dismissal

Cheryl Perich initially joined the Lutheran school as a lay teacher, completed religious training, and accepted a call as a commissioned minister. Her classroom responsibilities included secular subjects, religious instruction, prayer, devotional exercises, and chapel participation. After disability leave related to narcolepsy, she sought to return with medical clearance. The school had engaged a replacement, and the relationship deteriorated. The congregation ultimately rescinded her call. The opinion recounts these events at 177–79.

The EEOC alleged retaliation for threatening an ADA action. Perich intervened with federal and Michigan retaliation claims. The requested relief included reinstatement or frontpay, backpay, damages, and fees. The district court granted summary judgment under the ministerial exception; the Sixth Circuit vacated that judgment because it concluded Perich was not a minister. The Supreme Court reversed. These procedural details matter: The Court addressed a constitutional defense, not a verdict deciding whether the employer’s factual explanation was true.

The constitutional interest was ministerial selection

The unanimous opinion explained that government interference with selecting or retaining a minister affects a religious group’s internal governance, faith, and mission. The Free Exercise Clause protects that selection, and the Establishment Clause prevents government involvement in ecclesiastical appointments. The reasoning at 188–90 distinguished interference with internal ministerial decisions from regulation of outward conduct.

The Court rejected the government’s position that ordinary freedom of association supplied the complete framework. It also rejected the contention that the neutral-law principle in Employment Division v. Smith foreclosed the exception. The holding depended on the ministerial relationship and challenged decision, rather than a general exemption for religious organizations from civil regulation.

The role inquiry did not use a rigid formula

At 190–94, the Court examined Perich’s formal title, the training and commissioning behind it, her own use of the title, and important religious functions. It faulted the Sixth Circuit for disregarding the title, treating equivalent duties of lay teachers as dispositive, and giving excessive weight to secular teaching time. The Court did not require exclusively religious work.

Those circumstances cannot be converted into four mandatory requirements for every later case. In the 2020 Our Lady of Guadalupe decision, the Court emphasized what the employee actually does and the role of religious education in the institution’s mission. A current analysis therefore should connect the record to entrusted religious functions rather than mechanically counting titles or courses.

Money relief still challenged the removal

Perich abandoned reinstatement before the Supreme Court, but damages and frontpay remained. The Court held at 194–95 that such relief would penalize the church for terminating an unwanted minister and would rest on an impermissible determination that the removal was wrongful. The argument that the asserted religious reason was pretextual did not avoid the exception; its purpose was to preserve control over who ministers to the faithful.

Footnote 4, at 195, classifies the exception as an affirmative defense, not a jurisdictional bar. Courts retain authority to hear the claim and determine whether the defense applies. This distinction prevents confusion between a merits defense and the court’s power to consider the case.

The opinion’s express boundary

At 195–96, the Court limited its holding to the employment-discrimination suit challenging the church’s firing of a minister. It expressed no view on other suits, including contract or tort actions. Justice Thomas wrote separately on deference to a religious organization’s understanding; Justice Alito, joined by Justice Kagan, stressed religious functions. Those concurrences should be identified as separate opinions.

For a present dispute, use the official opinion to distinguish role, claim, remedy, and procedural posture. Our role-review Insight translates those distinctions into documents to preserve before consultation.

The firm’s Employment practice page explains the scope of representation and how to request a review.

Practical implications for employees

The practical implication is to investigate the actual entrusted religious functions before debating only the employer’s termination explanation. A claim seeking damages may still require judicial review of ministerial removal. Keep potential contract or tort claims analytically separate: The Court’s reservation of those issues supplies no affirmative ruling that a particular alternative claim will succeed.

When comparing a current position, explain which religious functions were entrusted to the employee and how the institution relied on those functions. A time sheet may describe frequency without showing the significance of teaching the faith. Preserve the assigned duties and the institutional context together.

Frequently Asked Questions

What was the disposition?

The Supreme Court reversed the Sixth Circuit and held that the termination-based discrimination suit had to be dismissed.

Is the exception jurisdictional?

No. The Court described it as an affirmative defense in footnote 4.

Did the Court decide every contract or tort claim?

No. It expressly reserved those questions.