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Response from Kevin James

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 recent movement of the case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission to the U.S. Supreme Court to be argued in October of this year has some people worried and others relieved. For the former there is the feeling that this case could deal a huge blow to religious liberty, particularly in a religious institutions autonomy to hire and fire employees over internal belief systems. They feel this case could find government intruding into the spiritual matters of faith institutions muddying or destroying the first amendment principle of separation of church and state.

For those happy about the current developments they see a real move in the right direction. From their perspective the Court’s decision should be a huge boost to religious liberty and the ability of a church to tend to their internal affairs ly. So is the glass half full or half empty as the saying goes?

If this case was over an ordained minister filing discrimination then the decision would be easy because of ministerial exception such a case would be ruled in favor of a religious organization’s ability to govern their own internal affairs. It is nearly completely unanimous in the Federal Circuit Courts on this point of ministerial exception, and has been so for many years. The problem is, this case is not about a minister suing the church, but an employee that is not an ordained pastor of the cloth. In fact, this employee is a former school teacher at the Hosanna-Tabor School and here is where the circuit courts are murky and inconsistent, even outright contradictory on judgments handed down in these kinds of cases.

Church discrimination cases concerning employees have the need to consider whether or not the employee qualifies as a minister in the faith institution. This has led to some courts adopting a “primary duties” test to go through in the process of determining discrimination or not. Thus, the problem. The twelve federal circuit courts are divided into three even camps as to how such cases are determined. Let me take a moment to explain.

The 3rd, 4th, 6th and D.C. circuit courts have adopted the “primary duties” test in determining outcomes. The test states that “an employee is considered a minister if the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” Since Hosanna-Tabor ended up in the Sixth Circuit court they applied the “primary duties” test and overruled the lower court’s decision that was in favor of the defendant, or the school. The sixth court said the employee by nature of the quantitative effect of her work did not make her a minister as she was only doing religious activities 45 minutes out of her 7 or 8 hour day; therefore the teacher had the right to sue under the Americans Disability Act.

The 2nd, 5th, 7th and 9th courts have rejected the “primary duties” test on the basis of it being “to rigid” and have opted for other means to determine outcomes. Thus, you can have cases arising in the different circuit courts’ jurisdictions with essentially the very same facts and features in the case and come up with totally opposite conclusions.

For example, the Sixth Circuit said that based on the amount of time the teacher spent on religious instruction in the school it was only a small part of their duties as compared with the time spent teaching secular subjects (See Redhead v. Conference of Seventh-day Adventists, 440 F. Supp. 2d 211, 221 (E.D.N.Y. 2006). Yet, in another basically identical case (Clapper v. Chesapeake Conference of Seventh-day Adventists, 1998) the Fourth Circuit rejected the argument of the teacher that brought the case claiming they spent only 30% of their time on religious activities explaining that it “incorrectly limited the primary duties test to a purely quantitative test rather than one that obviously has both quantitative and qualitative elements.”

Then we have the 1st, 8th, 10th and 11th circuit courts which resolve claims on a case by case basis. This only adds further to the confusion and conundrums that result in these cases. Thus, as one of the amicus filed in favor of the U.S. Supreme Court taking up this case says, “this case presents an ideal vehicle for resolving the split and providing guidance on an important constitutional question.” And so it does.

With the current make up of the Supreme Court it would appear most likely that they would rule in favor of ministerial exception. But they need to do so in a manner that clearly shows that even the instruction in secular subjects in religious schools is done so with an overt spiritual purpose. The children are not being sent to religiously sectarian schools simply to be able to pray at will, but that their entire experience is immersed in a spiritual context. Parents seek to have their children taught secular subjects in a distinctive spiritual worldview perspective. Therefore, it is not a quantitative/qualitative divide at issue in a religious school setting. It is always for the intent of such to carry out its sectarian purpose.

Photo of Kevin James

Author: Kevin James

Associate Director of Public Affairs & Religious Liberty for the Southern Union of Seventh-day Adventists

Mr James's constituency encompasses Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, and Tennessee.  His primary responsibility is to provide assistance to church members who seek Sabbath accommodation in the workplace, and in that function has led numerous individuals through the Equal Employment Opportunity Commission (EEOC) claims process. Mr. James is an ordained minister, and prior to his work with the Southern Union, served as local church pastor for over 20 years.

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