In Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, the Supreme Court, in 2012, unanimously held that, under the First Amendment’s Religion Clauses, “it is impermissible for the government to contradict a church’s determination of who can act as its ministers.” Accordingly, the Court recognized that there is a “ministerial exception” that precludes application of employment-discrimination laws to claims concerning the relationship between a religious institution and its ministers. But who qualifies as a minister? The Hosanna-Tabor Court refused “to adopt a rigid formula,” but found that the employee at issue in that case was a minister in light of several “considerations”—the formal title given to the employee by the church, the substance reflected in that title, the employee’s own use of that title, and the important religious functions the employee performed.
Eight years later, the question of “who’s a minister?” is back before the Court in Our Lady of Guadalupe v. Morrissey-Berru, and St. James School v. Biel. In each case, teachers at Catholic schools brought discrimination claims, and the Ninth Circuit concluded the ministerial exception did not apply. Now before the Supreme Court, the schools contend that the Ninth Circuit has adopted the “rigid formula” that the Hosanna-Tabor Court eschewed, and they argue that in most cases a “religious functions” test is sufficient.
This is one of the few cases the Court has selected for telephonic argument, which will be held on May 11, 2020. Joining us hours after the argument, for a Courthouse Steps teleforum, will be Jesse Panuccio, who authored an amicus brief in the case on behalf of members of Congress and in support of the schools. Mr. Panuccio is a partner at Boies Schiller Flexner LLP and is the former Acting Associate Attorney General of the United States.
Featuring:
Jesse Panuccio, Partner, Boies Schiller Flexner LLP

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