Founded in 1906, Liberty magazine continues to be the preeminent resource for matters of religious freedom.

About Us & Contact

Articles, Blog, Discussions, Audio & Video

Facebook, Twitter & Email Newsletter

Support Liberty

Your help will allow us to continue in our pursuit to maintain the religious freedoms we enjoy.

Donations »

Magazine Subscription »

Liberty Campaign Resources »

Response from Jason Hines

Discussion Question: How Should the Supreme Court Rule on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC?

The Supreme Court recently granted certiorari for Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Should the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, apply to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship? And if so, where should that line defining ministerial exception be drawn?

The Supreme Court has recently decided to hear the case of Hosanna-Tabor v. EEOC, a case in which a Lutheran school is attempting to use the ministerial exception to justify the firing of a teacher who was afflicted with narcolepsy. The ministerial exception is an exception within the Americans with Disabilities Act of 1990, which allows churches to give preference in hiring to members of the faith, and enables religious organizations to ensure that employees live up to the rules and tenants of the religion.

I fully support the ministerial exception. Churches must have the ability to ensure that they can hire and fire when their employees no longer live up to the standards of the faith. At the same time, churches should not be allowed to use the ministerial exception to flagrantly violate the rights of its employees. In the broadest sense, every case has two elements –the law and the facts. Courts cannot in discriminately uphold principles because the court believes it is the right thing to do. I do not believe that the 6th Cir. Court of Appeals is against the ministerial exception. However, the court is against the use of the exception in this particular case, based on the facts. I agree with the court in this instance. While I will not take time in this forum to relay all the facts (anyone can go here to read them-,I think the court makes clear that it does not believe that this is a ministerial exception case at all. Instead, this is a case of a church school seeking to use the ministerial exception to cover the fact that they have no justifiable reason to fire this particular employee. The school at one point attempts to argue that it was a violation of church doctrine for the employee to not engage in internal dispute resolution. The facts do not support this argument. Rather, the facts support the narrative that the teacher at issue did engage ininternal dispute resolution, and when it became clear that the school was dismissing her because of unfounded concerns related to her disability, she asserted her rights under the employee manual of the church and the law. She was then fired. It is not clear to me where the faith issue is, unless it is somehow against the tenants of the faith to not accept the school board's discrimination and go quietly into that good night. Furthermore, the employee was promised that she would not lose her job because of her illness, and it was the employer that went back on its word and violated the ADA. The ministerial exception does not cover this type of activity.

There will be a cry from some that this decision goes too far in defining a minister under the ministerial exception. That may be true. However, it was not the court that presented this argument to themselves. Rather, Hosanna-Tabor placed the ministerial exception in jeopardy by their misuse of the exception in this case. Having a protection such as the ministerial exception is a good thing, and every church should stand for its proper use in our complicated system of church-state relations. To stand up in support of its misuse and abuse in cases such as this is to threaten the fabric of separation of church and state in a way that will only harm churches. The state should not have to intrude in order to define justice, fairness, and right behavior to churches. Churches, especially Christian ones, should be able to do that on their own. In this case, we have an example of a church that was not able to do that. The state then had no other choice but to step in and protect the rights of its citizens. Any criticism we have should not be given to the courts, but to Hosanna-Tabor for not doing the right thing and rehiring their "minister."

Finally, I would go so far as to argue that, based on these particular facts, the church's decision would not be allowed even if this employee is deemed a minister under the exception. The exception only allows for church institutions to ask that employees conform to the tenets of the faith. This is not a case where the employee's religious commitment is in question. Instead, the church is masquerading her objection to her employment status as a violation of the tenets of its faith. The Supreme Court has three options here. The first is to deem her a minister and grant the church's request for summary judgment. The second is to say she is not a minister and remand the case for trial consistent with that opinion. The third option is to deem the employee a minister, but find a significant issue of fact that would preclude summary judgment and allow the arguments of fact to be made at trial. I think that the Supreme Court should remand the case for trial simply because, as the 6th Cir. Court of Appeals ruled, this is not a case of the ministerial exception. The facts prove this case to be an example of a church that made a wrong decision that was in violation of the law, and now must face the consequences of that act.

Photo of Jason Hines

Author: Jason Hines

Jason Hines is Associate Editor for ReligiousLiberty.TV an independent religious liberty website. A Harvard Law graduate, Jason practiced commercial litigation in Philadelphia for five years and conducted seminars on religious liberty in his spare time. This gave him the opportunity to discuss issues of religious freedom with Adventists in churches all over the United States. In 2008, Jason decided to devote his life to work in religious liberty. To that end, he enrolled at the Seminary at Andrews University, where he is pursuing a Master’s Degree in Religion. He is also a PhD candidate in the Religion, Politics, and Society at the J.M. Dawson Institute for Church-State Studies at Baylor University. Jason blogs about religious liberty and other religious issues at

Back to Top