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No. 10-665



IN THE

enrrnr Cenrt e| thr Onitre etatrs

November, Term 2011




HOSANNA-TABOR EVANGELICAL CHURCH AND SCHOOL

Petitioner,
versus

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.

Respondants.



On Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit



BRIEF FOR PETITIONER



Justin A. G
Counsel Ior Petitioner


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"&ESTION PRESENTED

Whether the ministerial exception, a First Amendment doctrine that bars most employment
related lawsuits brought against religious organizations by its ministers, applies to a religious
teacher who taught daily religious classes, was a commissioned minister, and regularly lead her
students in prayer and worship.


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TABLE OF CONTENTS

QUESTION PRESENTED............................... ii
TABLE OF CONTENTS.................................iii
TABLE OF AUTHORITIES.............................. v
OPINIONS BELOW................................... 1
JURISDICTION.................................... 2
CONSTITUTIONAL PROVISIONS INVOLVED........................ 2
STANDARD OF REVIEW...............................2
STATEMENT OF THE CASE................................3
SUMMARY OF THE ARGUMENT............................5
ARGUMENT......................................6

I. THIS COURT MUST REVERSE THE SIXTH CIRCUIT`S DECISION
BECAUSE THE FIRST AMENDMENT PROTECTS A CHURCH`S RIGHT
TO SELECT THOSE WHO TEACH ITS DOCTRINE AND DELIVER ITS
MESSAGE. ................................................................................................................... 6
A. The ADA impinges on the First Amendment`s respect Ior decisions made
by religious tribunals........................................................................................... 7

B. The ADA encroaches on a religious organization`s constitutional Ireedom
to choose who will perIorm important religious Iunctions. .................................. 9

C. Smith`s holding, permitting neutral laws oI general applicability, is not
applicable to regulate doctrine........................................................................... 13

1. Smith explicitly carved out an exception to hybrid claims that involve
constitutional protections beyond the Free Exercise Clause ......................... 14

2. The government`s interest in eliminating employment discrimination
is never compelling enough to override a religious organization`s right
to selI-govern. ............................................................................................. 15
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D. The ADA Iorces secular courts to excessively entangle themselves in
religious doctrine. ............................................................................................. 17

1. Any inquiry by secular courts into the employment decisions oI a
religious organization constitutes excessive entanglement........................... 17

2. The judicial remedies oI successIul ADA claims result in excessive
entanglement. ............................................................................................. 19


II.THIS COURT MUST REJECT THE PRIMARY DUTIES TEST AND ADOPT
A BROAD MINISTERIAL EXCEPTION TO CLAIMS BROUGHT BY
SPIRITUAL LEADERS AGAINST RELIGIOUS INSTITUTIONS. .......................... 20

A. The 'Primary Duties test violates Iundamental First Amendment rights
owed to a religious organization. ...................................................................... 21

B. Properly deIined, the ministerial exception deIers to a religious
organization`s good Iaith understanding oI the ministerial position. ................. 23
CONCLUSION................................... 24
CERTIFICATE OF SERVICE..............................25



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TABLE OF A&THORITIES



&NITED STATES S&PREME CO&RT CASES Page

Corp. of Presiding Bishop Saints v. Amos, 483 U.S. 327, 343 (1987)................................... 10, 22

Employment Division v. Smith, 494 U.S. 872 (1990)....................................................... 13, 14, 15

First Options of Chicago v. Kaplan, 514 U.S. 938, 947 (1995) .................................................... 2
Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952).......................................................... 7, 8, 9

Lemon v. Kurt:man, 403 U.S. 602, 745 (1971)................................................................ 16
New York v. Cathedral Acad., 434 U.S. 125 (1977)....................................................................... 8

NLRB v. Catholic Bishop, 440 U.S. 490 (1979)......................................................... 16, 17, 18, 19
Serbian Eastern Orthodox Diocese v. Milivofevich, 426 U.S. 696 (1976)......... 8, 9, 10, 17, 18, 19

United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) ....................................................... 2

United States v. Lee, 455 U.S. 252 (1982).............................................................................. 15, 16
Watson v. Jones, 80 U.S. 679, 727-29 (1872) ............................................................................ 6, 7

&NITED STATES CO&RT OF APPEALS CASES
Alicea-Hernande: v. Catholic Bishop, 320 F.3d 698 (7th Cir. 2003)..................................... 12, 16
Bryce v. Episcopal Church, 289 F.3d 648, 655-57 (10th Cir. 2002)............................................ 10
Bollard v. California Province, 196 F.3d 940 (9th Cir. 1999).............................................. 7
Combs v. Central Texas Annual Conference, 173 F.3d 343, 347-50 (5th Cir.1999).............. 16, 19
EEOC v. Roman Catholic Diocese, 213 F.3d 795, 800-05 (4th Cir. 2000) )............................... 12
Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299 (11th Cir. 2000.. 14, 16
McClure v. Salvation Army, 460 F.2d 553 (5th Cir. 1972) .......................................................... 11
Natal v. Christian and Missionary Alliance, 878 F.2d 1575 (1st Cir. 1989) ............................... 12
Petruska v. Gannon University, 462 F.3d 294, 303-07 (3d Cir.2006) ........................... 6, 8, 11, 18
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Rayburn v. General Conference of Seventh-day Adventists, 772 F.2d 1164 (4th Cir. 1985) .... 12
Rweyemamu v. Cote, 520 F.3d 198, 204-10 (2d Cir. 2008) ......................................................... 18
Starkman v. Evans, 198 F.3d 173 (5th Cir. 1999) ........................................................................ 16

CONSTIT&TIONS

U.S. Const. amend. I ............................................................................................................. 2, 6, 9
Establishment Clause ............................................................................................................ passim
Free Exercise Clause ............................................................................................................. passim
Americans with Disabilities Act ............................................................................................ 11, 18
Civil Rights Act oI 1964 (Title VII) ...................................................................................... 18, 22

OTHER A&THORITIES

Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power,
84 Iowa L. Rev. 12 (1998).............................................................................. 16

S. Rep. No. 103-111, at 7 (1993).......................................................,............ 15



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No. 10-665



IN THE

enrrnr Cenrt e| thr Onitre etatrs

November Term 2011




HOSANNA-TABOR EVANGELICAL CHURCH AND SCHOOL

Petitioner,
versus

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, ET AL.

Respondants.



On Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit



BRIEF FOR PETITIONER


OPINIONS BELOW

The Sixth Circuit`s opinion is reported at 597 F.3d 769 (6th Cir. 2010). The District
Court`s opinion is reported at 582 F.Supp.2d 881 (E.D. Mich. 2008). The District Court`s
opinion denying the motion Ior reconsideration is unpublished.

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&RISDICTION

The judgment oI the court oI appeals was entered on March 9, 2010. A petition Ior rehearing
was denied on June 24, 2010. On Sept. 2, 2010, Justice Thomas extended the time within which
to Iile a petition Ior a writ oI certiorari. The petition Ior the writ oI certiorari was Iiled on
October 22, 2010, and this Court granted the petition on March 28, 2011. This Court has
jurisdiction pursuant to 28 U.S.C 1254 (1994).
CONSTIT&TIONAL PROVISIONS INVOLVED

The First Amendment to the United States Constitution provides:
'Congress shall make no law respecting an establishment oI religion, or
prohibiting the Iree exercise thereoI; or abridging the Ireedom oI speech, or oI the
press; or the right oI the people peaceably to assemble, and to petition the
Government Ior a redress oI grievances.

STANDARD OF REVIEW

The court oI appeals erred as a matter oI law when it reversed the district court`s decision.
This Court accepts the district court`s Iindings oI Iact unless clearly erroneous, but decides
questions oI law de novo. See United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). A
Iinding is clearly erroneous when, although there is evidence to support it, the reviewing court on
the entire evidence is leIt with the deIinite and Iirm conviction that a mistake has been
committed. Id. at 395. When the Court reviews conclusions oI law de novo, it makes an
independent review, and is Iree to arrive at its own holding. See First Options of Chicago v.
Kaplan, 514 U.S. 938, 947 (1995).


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STATEMENT OF THE CASE

This case arises out oI Respondent, Cheryl Perich`s employment relationship with
Petitioner, Hosanna-Tabor Evangelical Church and School. Hosanna-Tabor, As part oI its
ministry, operates a church and K-8 school aIIiliated with the Lutheran Church-Missouri Synod
(LCMS). Hosanna-Tabor is located in RedIord, Michigan. The school serves as one oI the
ministries oI the church, and is governed by the voting members oI the Church congregation.
Hosanna-Tabor`s website indicates that the school provides a 'Christ-centered education and
indicates that its teachers are 'Iine Christian role models who integrate the Lutheran Iaith into
all subjects.
Hosanna-Tabor employs two types oI teachers: 'lay teachers are hired by the Board oI
Education Ior one-year renewable terms; 'called teachers are hired by the voting members oI
the Hosanna-Tabor church congregation upon the recommendation oI the Board oI Education,
Board oI Elders, and Board oI Directors. In order Ior a teacher to become 'called, he or she
must complete religious colloquy classes required by LCMS that Iocus on various aspects oI the
Christian Iaith at a local religious college. AIter completion oI the colloquy classes, a teacher can
be selected by a congregation as a 'called teacher, and he or she receives the title oI
'commissioned minister.
Perich was hired by Hosanna-Tabor in 1999 as a lay teacher. In 2000, Iollowing the
completion oI the required religious classes, Hosanna-Tabor hired Perich as a called teacher and
subsequently granted her with the title oI 'commissioned minister. At least once during her
tenure, Perich claimed a housing allowance on her income taxes. Though Perich taught secular
subjects such as reading and social studies, she 'valued the Ireedom a sectarian school aIIorded
to bring God into every subject taught in the classroom.`

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In June 2004, Perich became suddenly ill. By August oI that year, her doctors had not
reached a diagnosis. Accordingly, Hosanna-Tabor suggested Perich apply Ior a medical leave
disability Ior the 2004-2005 school year. In December 2004, Perich inIormed the school`s
principal that her doctor had conIirmed a diagnosis oI narcolepsy. In January oI 2005, the
principal oI Hosanna-Tabor inIormed Perich that the school board intended to amend the
employee handbook requiring employees that were on disability Ior more than six months to
resign their call and allow Hosanna-Tabor to Iill their positions. At this point, Perich had been on
disability Ior more than Iive months. When Perich responded later that week that she would be
able to return in February, the principal responded with surprise because Perich had indicated a
Iew days prior that she had been unable to complete her disability Iorms because oI her health.
The principal indicated that Perich would not be able to teach her original class on return because
the substitute teacher had a contract that ran through the end oI the school term.
A Iew days later at the congregation`s shareholder meeting, the school board expressed
the opinion that it was unlikely that Perich would be physically capable oI returning to work that
school year. As a result, the Board proposed to Perich to accept a peaceIul release agreement,
where she would resign her call in exchange Ior health insurance payments through December
2005. When Perich met with the school board in February 2005, the Board presented the
peaceIul release, to which Perich responded by presenting doctor`s written release to return to
work without restrictions on February 22, 2005. The Board continually expressed reservations
about Perich`s ability to supervise students, and asked Perich to resign.
Perich decided not to resign her call, and emailed the principal the night beIore the
deadline. She reported Ior work on February 22, but the school, as indicated to her prior, did not
have a position Ior her. Perich reIused to leave the grounds until she received a letter

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acknowledging that she had appeared Ior work. The principal`s letter stated Perich had provided
improper notiIication oI her return to work, and asked that she continue her leave to allow the
congregation to develop a possible plan Ior her return.
Later that day, Perich spoke to the principal and stated that she would assert her legal
rights against discrimination iI they were unable to reach a compromise. Later that day, the
Board chairman (Salo) sent Perich a letter, describing her disruptive conduct as 'regrettable,
and stated that she had 'damaged, beyond repair her working relationship with Hosanna-Tabor.
Salo also indicated that the Board would review the process oI rescinding her call as a result. In
March, Perich`s lawyer sent a letter alleging discrimination on the part oI Hosanna-Tabor, stating
that she would bring a lawsuit against the church iI a resolution could not be reached. A second
peaceIul release oIIer had again been given to Perich which had to be accepted by April 8, 2005.
As Perich did not accept the oIIer, on April 10, 2005, the congregation voted to rescind Perich`s
call. The next day, Salo inIormed Perich oI her termination.
S&MMARY OF THE ARG&MENT

This Court has long prevented secular authorities Irom dipping its Iingers into the holy
waters oI the church by regulating its doctrine. In Iact, Irom the time oI Blackstone, to Benjamin
Franklin, to today, this religious Ireedom protecting the wall oI separation between church and
state, has meant that religious communities and institutions enjoy meaningIul autonomy with
respect to their governance, teachings, and doctrines.
It is Irom these principles oI religious liberty, church autonomy, and the separation oI
church and state, that the courts oI appeals have unanimously developed the ministerial
exception, which bars most employment disputes brought by ministers against their churches.

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Only where an absolute compelling governmental interest exists may a court consider
inIringement oI these First Amendment principles oI religious Ireedom. In balancing the clear
import oI religion against employment regulation, this exception rests on the overriding principle
that there are some questions the civil courts do not have the power to answer.
Here, the Sixth Circuit`s Court oI Appeals` application oI the ministerial exception
encroaches signiIicantly on the First Amendment`s guarantees oI religious Ireedom. SpeciIically,
the Sixth Circuit`s quantitative 'primary duties test counted the minutes Perich spent per day on
religious activities, and concluded that she was not ministerial because the quantitative majority
oI her work was spent on secular activities. The ministerial exception applied in this Iashion
signiIicantly encroaches upon a religious organization`s exclusive Ireedom to designate who will
carry out its religious Iunctions under the Free Exercise Clause, and also destructs the wall oI
separation against excessive entanglement created by the Establishment Clause.
This Court must deIine the scope oI the ministerial exception broadly such that it is
deIerential to the good-Iaith characterization by religious organizations oI its employment
positions that carry out sacred Iunctions. Such protection extends naturally Irom this Court`s
long-standing precedents giving religious organizations broad autonomy to govern their own
aIIairs. Accordingly, The Sixth Circuit`s departure Irom these precedents should accordingly be
reversed.
ARG&MENT
I. THIS CO&RT M&ST REVERSE THE SIXTH CIRC&IT`S DECISION BECA&SE
THE FIRST AMENDMENT PROTECTS A CH&RCH`S RIGHT TO
SELECTTHOSE WHO TEACH ITS DOCTRINE AND DELIVER ITS
MESSAGE.


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The First Amendment states: 'Congress shall make no law respecting an establishment
oI religion, or prohibiting the Iree exercise thereoI. U.S. Const.amend.I. In respecting this
constitutional protection, this Court has recognized a 'wall oI separation between church and
state that places strict limits on the government`s ability to interIere with religious decisions.
Watson v. Jones, 80 U.S. 679, 727-29 (1872). It is Irom this principle that the courts oI appeals
have unanimously developed the ministerial exception, which protects a religious organization`s
Ireedom in deciding who will perIorm its spiritual Iunctions. Petruska v. Gannon University, 462
F.3d 294, 303-07 (3d Cir.2006). The Sixth Circuit`s decision however, ignores this religious
Ireedom and in turn, overrides a determination oI religious doctrine that is to be made
exclusively by those entrusted by the religious communities. Accordingly, this Court must
reverse the Sixth Circuit`s decision and apply a broad ministerial exception in order to reaIIirm
the First Amendment`s general principles oI governmental non-interIerence with religious
organizations and religious practice.
A. The ADA impinges on the First Amendment`s respect for decisions made by
religious tribunals.

This Court has long recognized that a key component oI religious Ireedom and
separation between church and state is the autonomy oI religious organizations over internal
aIIairs. Watson, 80 U.S. at 727. This church autonomy doctrine prohibits civil authorities Irom
adjudicating religious controversies involving church polity and administration. Id. at 729. This
doctrine is rooted in the First Amendment's Free Exercise and Establishment Clauses. Bollard v.
Cal. Province of the Socy of Jesus, 211 F.3d 1331, 1332 (9th Cir.2000). It is also rooted in "a
long line oI Supreme Court cases that aIIirm the Iundamental right oI churches to `decide Ior

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themselves, Iree Irom state interIerence, matters oI church government as well as those oI Iaith
and doctrine. Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952).
This Court`s church autonomy line oI cases begins with Watson, in which this Court
held that it could not adequately rule on a property dispute between two Iactions oI a church.
Watson, 80 U.S. at 728. In so holding, this Court reasoned that 'whenever questions oI
discipline, or oI Iaith, or ecclesiastical rule, custom, or law have been decided by the highest oI
these church judicatories to which the matter has been carried, it must 'accept such decisions as
Iinal and binding on them. Id. at 727. Years later, this Court reIined Watson`s principles oI
autonomy by striking down legislature that transIerred 'control oI the New York
churches.Irom the central governing hierarchy oI the Russian Orthodox Church |in Moscow| to
the governing authorities oI the Russian Church in America. Kedroff, 344 U.S. at 107. In
Kedroff, this Court reasoned that the dispute was 'a matter oI ecclesiastical government and
thus was the power oI the church in Russia 'to appoint the ruling hierarch oI the archdiocese oI
North America. Id.
Following these landmark decisions, this Court has consistently reasserted that the
principles oI autonomy apply with 'equal Iorce to church disputes over church polity and church
administration. Serbian Eastern Orthodox Diocese v. Milivofevich, 426 U.S. 696, 717 (1976).
For example, Serbian ruled that it could not reinstate a bishop who had been removed by higher
church authorities because 'religious controversies are not the proper subject oI civil court
inquiry, because a civil court must accept the ecclesiastical decisions oI church tribunals as it
Iinds them. Id. at 729. It would lead to 'total subversion oI such religious bodies, iI any one
aggrieved by |a secular court`s| decisions could appeal and have them reversed. Id. Any lesser
standard, 'would deprive religious bodies oI the right oI construing their own church laws, and

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would open the way to all the evils which we have depicted as attendant upon. New York v.
Cathedral Acad., 434 U.S. 125 (1977). Accordingly, this Court`s precedent Iirmly recognizes
that a religious organization is entitled to church autonomy when deciding matters oI religious
doctrine.
By extension, the courts oI appeals have unanimously recognized a 'ministerial
exception due to tensions between the 'cardinal Constitutional principles oI Ireedom oI
religion, on one hand, and 'the Government`s interest in eradicating discrimination in
employment on the other. Rayburn, 772 F.2d at 1167 (citing Kedroff, 344 U.S. at 116). This
exception "bars civil courts Irom reviewing decisions oI religious organizations relating to the
employment oI their ministers. Petruska, 462 F.3d at 304 (3d Cir.2006). Courts applying this
exception, stress that it is constitutionally required under the Free Exercise Clause, Establishment
Clause, and Ireedom right oI association, or a combination thereoI. Catholic Univ. of Am., 83
F.3d at 460. When these clauses are read together, the ministerial exception applies to claims that
would impose an unwanted minister on the church or entangle the government with religious
questions.

B. The ADA encroaches on a religious organization`s constitutional freedom to
choose who will perform important religious functions.

The Free Exercise Clause provides that 'Congress shall make no law.prohibiting the Iree
exercise |oI religion|. U.S.Const.amend.I. This clause protects the Ireedom oI religious bodies
to 'decide matters oI church governance, Iree Irom the interIerence oI secular authorities.
Kedroff, 344 U.S at 104. As a result, this Court has recognized that this religious Ireedom may be
obstructed by governmental action that either: (1) 'encroach|es| on the ability oI a church to
manage its internal aIIairs, or (2) 'interIere|es| with a believer`s ability to observe the

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commands or practices oI his Iaith. Id. at 106. Here, the adjudication oI an ADA claim would
place substantial burden on a religious organization`s ability to choose its ministers, which is
unconstitutional under the Free Exercise Clause.
As stated, the First Amendment`s Free Exercise Clause protects a religious institution`s
right to decide matters oI Iaith, doctrine and church governance. Id. Importantly, this Court has
recognized that those matters include the 'composition oI church hierarchy, such as the
'appointment or termination oI religious clergy member. Serbian, 426 U.S. at 112. Given the
importance oI this power, this Court has repeatedly Iorbidden secular interIerence with a
religious organization`s Ireedom to select its clergy. Id. For example, this Court in Gon:ale:,
reIused to order the church to accept a chaplain that it had rejected as being unqualiIied.
Gon:ale: v. Roman Catholic Archbisop, 280 U.S. 1 (1929). In so holding, this Court stated that
'because the appointment oI a religious employee is a canonical act, it is the Iunction oI the
church authorities to determine what the essential qualiIications oI a chaplain are and whether
the candidate possesses them. Id. Similarly, as previously described, this Court in Serbian,
reIused to reinstate a bishop that the Serbian Orthodox had terminated. Serbian, 426 U.S. at 696.
There this Court emphasized that 'questions oI church discipline and the composition oI the
church hierarchy, such as who will serve as clergy, 'are at the core oI ecclesiastical concern,
and any attempt in reinstating the bishop would 'unconstitutionally undertake the resolution oI
quintessentially religious controversies whose resolution the First Amendment commits
exclusively to the highest ecclesiastical tribunal. Id. at 724. Accordingly, it would directly aIIect
the church`s system oI belieI and the embodiment oI its message would be directly aIIected. Id.
The Free Exercise Clause also protects a religious organization`s Ireedom in 'deIining
what is and is not religious. Corp. of Presiding Bishop Saints v. Amos, 483 U.S. 327, 343

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(1987). As this Court stated in Amos, '|d|etermining that certain activities are in Iurtherance oI
an organization`s religious mission, and that those committed to that mission should conduct
them, is. a means by which a religious community deIines itselI. Id. at 342 (Brennan, J.,
concurring). II a secular court were 'to assume the responsibility oI determining whether an
activity is religious` or secular,` it would assume the distinctly religious Iunction oI deIining
whose voice speaks Ior the church. Id. at 343-44. ShiIting such responsibility to the government
would result in a church`s 'selI-deIinition to be shaped in part by prospects oI litigation. Id.
Such uncertainty would unduly burden the religious practices oI a church: '|I|t is a signiIicant
burden on a religious organization to require it, to predict which oI its activities a secular court
will consider religious.Fear oI potential liability might aIIect the way an organization carried
out what it understood to be its religious mission. Id. at 336 (majority opinion).
In light oI these cases, every circuit has recognized that the existence oI the ministerial
exception is constitutionally justiIied under the Free Exercise Clause. See Bryce, 289 F.3d at 655
('|E|very court to consider the question has recognized the ministerial exception- including ten
state supreme courts and all twelve Iederal circuits with jurisdiction over such cases.). For
example, in McClure the FiIth Circuit barred a minister Irom suing her religious employer based
on discrimination. McClure v. Salvation Army, 460 F.2d 553, 560 (5
th
Cir. 1972). AIter noting
that the First Amendment has built a "wall oI separation" between church and state, and that
there is a long history oI allowing churches 'to be Iree Irom state interIerence in matters oI
church governance, the court reasoned that '|t|he relationship between an organized church and
its ministers it its liIeblood. Id. at 554. The minister is the chieI instrument by which the church
seeks to IulIill its purpose. Id. at 555. Thus, 'application oI the provisions oI Title VII to the
employment relationship between a church and its minister would result in an encroachment by

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the State into an area oI religious Ireedom which it is Iorbidden to enter by the principles oI the
Free Exercise Clause oI the First Amendment. Id. at 559.
Similarly, in Petruska the Third Circuit recognized that the Free Exercise Clause protects
an individual`s 'right to believe and proIess whatever religious doctrine one desires. Petruska v
Gannon Univ., 462 F.3d 294, 311 (3d Cir. 2006). The Third Circuit emphasized that this right
extended to church as institutions because, 'like an individual, a church in its collective capacity
must be Iree to express religious belieIs.and communicate its religious message. Id.
Accordingly, the Court stated 'because a minister is the 'embodiment oI |a church`s| message,
any restriction on the church`s right to choose who will carry its spiritual message 'necessarily
inIringes upon its Iree exercise right to proIess its belieIs. Id. at 311 (quoting Rayburn, 772 F.2d
at 1169) (Secular authorities may not 'insert themselves into the internal management oI a
church, which is a 'realm where the Free Exercise Clause Iorbids them to tread.)).
Although the ministerial exception most clearly applies to clergy and ordained ministers,
it is not limited to such employees. As one court noted 'due to the impossibility oI separating the
message Irom the messenger, the ministerial exception applies not just to pastors, but to other
employees who perIorm important religious Iunctions. Natal v. Christian and Missionary
Alliance, 878 F.2d 1575 (1st Cir. 1989). For example, in Catholic Bishop, the 7
th
Circuit applied
a broad ministerial exception to bar a claim between a religious teacher and church. Alicea-
Hernande: v. Catholic Bishop, 320 F.3d 698 (7th Cir. 2003). In so holding the court emphasized
'a religious teacher is not merely an employee oI the church, but rather the embodiment oI the
church`s message. Id. Similarly, the Fourth Circuit held that 'the Iunctions oI a lay person's
music ministry and teaching positions at a Catholic Church and elementary school were
ministerial` Ior the purposes oI Title VII such that the Free Exercise Clause barred consideration

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oI the employee's sex discrimination case. EEOC v. Roman Catholic Diocese, 213 F.3d 795
(4th Cir. 2000). As a result, the Court stated that it would violate the Free Exercise Clause to
allow the claim to continue. Id.
As concluded by this Court in the above cases, the Free Exercise Clause guarantees that
decisions oI religious doctrine should be Iree Irom interIerence by the government. Thus, in the
case at bar, the First Amendment prohibits governmental interIerence with the decision to
terminate Perich`s employment at Hosanna-Tabor. The decision to terminate Perich`s
employment was a matter oI ecclesiastical concern as Hosanna-Tabor has a right to determine
whether an employee embodies the essential qualiIications oI a minister. II a secular court were
to interIere with this determination oI the church and arrive at any resolution contrary to the
church`s decision, Hosanna-Tabor`s right to Free Exercise would be shattered.

C. $29`s holding permitting neutral laws of general application is not applicable
to regulate religious doctrine.

Respondent argues that the majority in Smith precludes the recognition oI the
ministerial exception because the ADA is a neutral law oI general applicability. In Smith, two
men who were Iired Irom their positions at a drug rehabilitation center because they ingested
peyote Ior sacramental purposes. Employment Division v. Smith, 494 U.S. 872 (1990). In
rejecting the claimant`s argument that 'the law substantially burdened their religious practices
and the state had no compelling interest in Iorbidding peyote use Ior religious purposes, this
Court held that the Free Exercise Clause does not require a state to provide a religious exemption
Irom otherwise valid, generally applicable law. Id. at 870. In so holding, this Court believed that
imposing strict scrutiny any time a law substantially burdened any religious individual 'would
open the prospect oI constitutionally required religious exemptions Irom civic obligations oI

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almost every conceivable kind.- thus empowering every individual, 'by virtue oI his belieIs, to
become a law unto himselI. Id.
However, Iollowing Smith, every circuit that has addressed this issue has either
explicitly or impliedly rejected its application to claims between a religious organization and its
ministers and have continued to apply the ministerial exception. This uniIormity among courts is
Ior two reasons oI equal signiIicance: (1) Smith explicitly identiIied and carved out an exception
Ior hybrid claims involving constitutions protections beyond the Free Exercise Clause; and (2)
because the government`s interest in eliminating employment discrimination is never compelling
enough to impede a religious organization's right to selI-governance.
1. $29 explicitly carved out an exception to hybrid claims that involve
constitutional protections beyond the Free Exercise Clause.

This Court in Smith was challenged with weighing its determination regarding the
application oI 'valid and neutral law|s| oI general applicability against the protections granted
by only one constitutional provision. Id. However, in writing Ior the majority, Justice Scalia
stressed that in a situation in which the Free Exercise Clause was applied in confunction with
another constitutional provision, the First Amendment would prohibit the application oI 'neutral
generally applicable law. Id. (emphasis added). Thus, this Court carved out an exception to
Smith`s general rule, such that valid and neutral laws oI general applicability which implicate
both the Free Exercise Clause and a second constitutional protection could remain subject to
strict scrutiny as a hybrid situation. Id.
Here, this Court is Iaced with the exact hybrid situation explained by Justice Scalia
because adjudication oI ADA claims arising between a religious organization and its minister
violates both the Free Exercise Clause in conjunction with the Establishment Clause. Thus,

13

because the Free Exercise Clause and the Establishment Clause work in agreement to provide the
constitutional protection guaranteed to religious entities, 'this Court has explicitly placed ADA
claims arising between religious organizations and its ministers outside the scope oI Smith.
Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299, 1302-04 (11th Cir.2000).
2. The government's interest in eliminating employment discrimination is
never compelling enough to impede a religious organization's right to self-
governance.

The concurring opinion in Smith, written by Justice O`Conner, has been regarded as the
appropriate approach aIIorded to religious organizations in these situations. Justice O`Connor
held that that the "|g|overnment may substantially burden a person's exercise oI religion only iI it
demonstrates that application oI the burden to the person: (1) is in Iurtherance oI a compelling
governmental interest; and (2) is the least restrictive means oI Iurthering that compelling
governmental interest. Smith, 494 U.S. at 890. (O`Conner, J., concurring) (quoting Wisconsin v.
Yoder, 406 U.S. 205, 215 (1972)). According to Congress, this approach 'respect|s| both the
First Amendment's express textual mandate and the governmental interest in regulation oI
conduct by requiring the government to justiIy any substantial burden on religiously motivated
conduct by a compelling State interest. S. Rep. No. 103-111, at 7 (1993) (quoting Employment
Div., Dept. of Human Res. v. Smith, 494 U.S. 872, 894 (1990) (O'Connor, J., concurring)).
The Iundamental example demonstrating such a threshold is articulated by this Court in
United States v. Lee, 455 U.S. 252 (1982), Lee held that 'Amish workers engage|ing| in
commercial activity must pay social security taxes, despite their religious objection to paying
into or accepting beneIits Irom this system. This Court reasoned that the
government's compelling interest in 'mandatory and continuous participation in and contribution
to the social security system was very high because a comprehensive national system would Iail

16

iI individuals could evade the mandate based on religious belieIs despite their commercial
employment. Id. Thus, Lee was Iaced with an extreme governmental cause, one that is
appropriately considered a 'compelling interest. Id.
In the case at hand, the government clearly has an interest in protecting employees
against discrimination. However, the majority oI court decisions have concluded that the
'government's interest in eliminating employment discrimination is never compelling enough to
impede a religious organization's right to selI-governance, especially regarding ministerial
positions. See Rayburn, 772 F.2d at 1164 ('|A| church`s existence depends upon whom it selects
to preach its values, teach its message, and interpret its doctrines both to its own membership and
to the world at large.). As one court noted 'the right oI selI select the individuals suited Irom the
highest position oI religious inIluence is so Iundamentally intertwined with a religious entity`s
Free Exercise right to establish a system oI belieI, the government`s challenge must Iail. NLRB
v. Catholic Bishop, 440 U.S. 490 (1979). ThereIore, a church`s selection oI its own clergy is one
oI such core ecclesiastical matter that does not warrant the same compelling interest oI Lee.
This Court`s decision in Smith does not undermine the principles oI the church autonomy
doctrine. In Smith, this Court explained that 'the right oI Iree exercise does not relieve an
individual oI the obligation to comply with a valid and neutral law oI general applicability. Id.
(emphasis added). Following Smith, every court has concluded that the ministerial exception is
unaIIected by Smith. See EEOC v. Roman Catholic Diocese, 213 F.3d 795, 800 (4th
Cir.2000); Gellington v. Christian Methodist Episcopal Church, 203 F.3d 1299, 1302-04 (11th
Cir.2000); Combs v. Central Tex. Annual Conference of the United Methodist Church, 173 F.3d
343, 348-50 (5th Cir.1999); Catholic Univ., 83 F.3d at 461-63. These courts emphasize that
'unlike Smith, the ministerial exception` addresses the right oI the church, not the right oI the

17

individual. Bryce, 289 F.3d at 656. As a result, these courts have noted that the Supreme Court
expressly places ADA claims outside the scope oI Smith. Gellington v. Christian Methodist
Episcopal Church, 203 F.3d 1299, 1302-04 (11th Cir.2000).
In assessing what the Free Exercise Clause does protect, Smith reaIIirmed the principle oI
church autonomy in which the ministerial exception is grounded upon: 'The government may
not lend its power to one or the other side in controversies over religious authority or dogma.
Smith, 494 U.S. at 894 (1990). SpeciIically, Smith reaIIirms that the government may not take
sides in a dispute over a religious employee who perIorms important religious Iunctions.
Accordingly, the right oI a church to select the personnel who perIorm important religious
Iunctions is an essential part oI the Free Exercise Clause.

D. The ADA forces secular courts to excessively entangle themselves in religious
doctrine.

The First Amendment states 'Congress shall make no law respecting an establishment
oI religion. U.S.Const.Amend.1.The Establishment Clause acts as a 'structural restraint on
government power barring governmental intrusion 'inherently religious matters. Carl H.
Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 Iowa L.
Rev. 1,2 (1998). This Court, in Lemon v. Kurt:man, 403 U.S. 602, 745 (1971), established a
three-part test Ior determining whether a statute violates the Establishment Clause:
First, the statute must have a secular legislative purpose; second, its principal or primary
eIIect must be one that neither advances nor inhibits religion; Iinally, the statute must
not Ioster an excessive government entanglement with religion.

Id. at 612. SpeciIically, 'under the Lemon analysis, it is a permissible legislative purpose to
alleviate signiIicant governmental interIerence with the ability oI religious organizations to
deIine and carry out their religious missions. Id. Accordingly, the Establishment Clause

18

imposes two important limits on the power oI government to interIere in religious organizations:
(1) the government cannot entangle itselI in religious questions; and (2) the government cannot
appoint ministers. The ministerial exception prevents both types oI interIerence.
1. Any inquiry by secular courts into the employment decision of a religious
organization constitutes excessive entanglement.

The Establishment Clause`s protection against excessive entanglement stems Irom the
constitutional restriction against governmental interIerence with church doctrine. This Court has
recognized that this interIerence includes 'not only the conclusions that may be reached by the
court which impinge on rights guaranteed by the Establishment Clause, but also the 'very
process oI inquiry oI what does, and does not involve religious doctrine or Iaith. Catholic
Bishop, 440 U.S. 490 (1979). For example, this Court in Serbian held that 'secular inquiry into
the procedural questions oI a church, such as the Iiring oI a bishop, constituted excessive
entanglement in violation oI the Establishment Clause.

Serbian, 426 U.S. at 717 (1976). In so
holding, this Court reasoned 'such an inquiry required a detailed review oI evidence, such as
evaluating conIlicting testimony concerning internal church procedures, which would 'entangle
a court into a religious thicket and would require resolution oI quintessentially religious
controversies. Id. at 719. Similarly, this Court in Catholic Bishop held that the application oI a
Iederal employment statute to the operation oI a church operated school would cause an
unavoidable excessive entanglement between church and state. This Court reasoned that such a
claim would 'necessarily involve inquiry into the good Iaith oI the position asserted by the
clergy-administrators and its relationship to the school`s religious mission. Id. Such an inquiry
'presents a signiIicant risk that the First Amendment will be inIringed. Id. Accordingly, both

19

Serbian and Catholic Bishop support a broad protection oI church autonomy Ior religious
organizations against governmental interIerence.
In light oI this Court`s precedent, lower courts have consistently held that the
adjudication oI claims between a religious minister and a church 'would constitute an
unprecedented and impermissible entanglement with religious authority. For example, in Cote,
an AIrican-American priest brought a Title VII claim against the Roman Catholic Diocese
alleging racial discrimination. Cote, 520 F.3d at 198. In concluding it could not hear the claim,
the Court noted 'in order to adjudicate the minister`s claim the court would have had to evaluate
the decision oI an ecclesiastical hierarchy, which would have placed the government in the
position oI deciding between competing religious views. Id. This would result in 'pitting the
government and the church against one another in a protracted legal battle, such that 'church
personnel and religious documents would become subject to a variety oI legal processes--
including subpoena, discovery, and cross-examination, which is exactly the type oI excessive
entanglement that is prohibited under the Establishment Clause. Petruska, 462 F.3d at 294.
Similarly, as the Eleventh Circuit noted 'this would also result in courts passing judgment on the
ministerial employee`s qualiIications, and second guessing the religious employer`s judgment as
to whether she suIIiciently embodies the church and its teachings, in violation oI the
Establishment Clause. Gellington, 203 F.3d at 1299. Accordingly, a court would not be able to
'conceive whether an employment decision concerning a minister was based on legitimate or
illegitimate grounds without inserting ourselves into a realm where the Constitution Iorbids us to
tread. Combs v. Central Tex. Annual Conf. of the United Methodist Church, 173 F.3d 343 (5
th

Cir. 1999).

20

The case at bar presents an absolute requirement Ior government determinations that
travel Iar beyond the inquiries discussed above. This claim would require the government to
answer whether a minister can be Iired Ior asserting her right to sue. This would require the state
to conduct numerous investigations and determinations oI religious entities` motivation Ior all
challenged employment decisions and would result in pitting the government and the church
against one another in a protracted legal battle. This is exactly the type oI procedural
entanglement that is prohibited under the Establishment Clause.
2. The judicial remedies for ADA claims brought by ministers against
religious organizations result in excessive entanglement.

The potential remedies Ior an ADA claim brought by a minister against its religious
employer includes: (1) reinstatement oI the minister to the religious organization; and (2)
compensatory damages Ior lost wages and emotional distress. II ordered by this Court, both oI
these remedies present signiIicant governmental entanglement in direct violation oI the
Establishment Clause.
First, excessive entanglement is implicated 'iI the church's Ireedom to choose its
ministers is at stake. Serbian, 426 U.S. 696 (1979). The reinstatement oI a minister that has
been Iired by a religious organization abolishes this religious Ireedom because it creates a class
oI government-appointed clergy in direct violation oI the Establishment Clause. Catholic Bishop,
440 U.S. 490 (1979). This remedy also violates the right oI religious organization to select who
interprets its religious doctrine under the Free Exercise Clause. Moreover, '|e|ven aIter entry oI
judgment, questions oI compliance may result in continued court surveillance oI the church`s
policies and decisions. Rayburn, 772 F.2d at 1167. Second, the monetary equivalent oI
reinstatement, in the compensatory damages would have much the same eIIect as reinstatement.

21

This is because it would require the secular court to Iirst determine that the minister is entitled to
their respective position with the church. This '|i|nvestigation by a government entity into a
church's employment oI its clergy would almost always entail excessive government
entanglement into the internal management oI the church. Id.
In sum, the ministerial exception bars claims that require governmental interIerence
with religious questions. In doing so, the ministerial exception prevents a court Irom becoming
entangled in religious question and imposing an unwanted minister.
II. THIS CO&RT M&ST REECT THE PRIMARY D&TIES TEST AND ADOPT A
BROAD MINISTERIAL EXCEPTION TO CLAIMS BRO&GHT BY SPIRIT&AL
LEADERS AGAINST RELIGIO&S INSTIT&TIONS.

The Sixth Circuit`s ruling deIies the principle oI church autonomy that this Court`s
precedent has long extended to religious organizations. More speciIically, the Sixth Circuit Iailed
to respect a religious organization`s First Amendment rights to 'decide Ior themselves, Iree Irom
state interIerence, matters oI church government as well as those oI Iaith and doctrine, Kedroff,
344 U.S. at 104; and intruded into matters oI church governance in a coercive manner.
Accordingly, this Court must reverse the Sixth Circuit`s decision.
A. The ~Primary Duties test violates fundamental First Amendment rights owed to a
religious organization.

In applying the 'primary duties test, the Sixth Circuit reIused to apply the ministerial
exception to Respondent`s ADA claim because her 'primary duties did not consist oI teaching
the Iaith, spreading the Iaith, church governance, supervision oI a religious order, or supervision
or participation in religious ritual and worship. Instead, the court weighed the time Respondent
spent perIorming secular activities against the time she spent perIorming religious activities and

22

concluded it was 'clear |her| primary Iunction was teaching secular subjects. However, the
'primary duties test applied in this Iashion is troubling in distinct two ways: (1) it unavoidably
interIeres with the autonomy oI a religious organization to control who interprets its doctrine;
and (2) it entangles secular courts in the thicket oI religious doctrine.
The Iundamental problem with the 'primary duties test is the nature oI the inquiry that a
secular court applying the test is required to conduct. Cote, 520 F.3d at 208. The 'basic idea
behind the test is that courts must determine whether the employee is important to the spiritual
and pastoral mission and the church; and determine whether the minister`s duties were
religious` or secular. Rayburn, 772 F.2d at 1169. However, as stated by this Court in New
York v. Cathedral Acad., 434 U.S. 125, 133 (1977), the 'prospect oI church and state litigating in
court about what does and does not have religious meaning touches the very core oI the
guarantee against religious establishment. II this Court were to 'assume the responsibility oI
determining whether an activity is religious or secular, it would assume the Iunction oI deIining
the nature oI the religious institution. Id. This is because the 'line between what is secular and
religious is hardly a bright one, such that a church 'may regard the conduct oI certain Iunctions
integral to the mission oI the church, and a court may disagree. Amos, 483 U.S. at 327 (1987).
ThereIore, because the 'primary duties test requires courts to make secular judgments about the
religious signiIicance oI a minister`s duties it excessively entangles those courts in matters oI
church governance.
The 'primary duties test also entangles secular courts by compelling them to second
guess a decision made by the highest religious tribunal. Here, Respondent`s claim Iorces this
Court to interpret the Synod`s procedure oI handling all disputes within the church. Such an
inquiry would mandate that 'church personnel and records be made available to subpoena,

23

discovery, and the Iull panoply oI legal process, Rayburn, 772 F.2d at 1164; and would also
'probe the mind oI the church to determine good Iaith. Id. This Court recognized this danger in
Serbian: 'any attempt to determine whether the Church`s actions were arbitrary 'must inherently
entail inquiry into the procedures that ecclesiastical law requires the church judicatory to
Iollow. Serbian, 426 U.S. at 702. This could lead to a court substituting its own inquiry into the
church, such that judicial rewriting oI church law becomes unavoidable. Id. at 719.
In addition to excessive entanglement caused by secular inquiry, Respondent`s claim
imposes an enormous burden on a religious organization`s autonomy in choosing its religious
leaders. More speciIically, Respondent`s complaint requests an order reinstating her call.
However, as previously discussed, the reinstatement oI an unwanted minister would create a
class oI government-appointed clergy in direct violation oI the First Amendment. Moreover,
awarding Respondent with the monetary equivalent oI reinstatement, in the Iorm oI
compensatory damages would also present a restraint on the right oI church to select their own
ministers. As this Court warned in Amos: 'the Iear oI potential liability might aIIect the way an
organization carried out what it understood to be its religious mission. Here, this Iear would
cause Hosanna-Tabor to be reluctant to terminate a minister`s call no matter what the minister
had done. Accordingly, this Iear intrudes into matters oI church governance and interIeres with
the church`s management in violation oI the religion clauses oI the First Amendment.
In sum, this Court must reject the 'primary duties test and apply a broad ministerial
exception in order to protect a religious organization`s ability to deIine its doctrine and choose its
spiritual leaders. Such an exception should deIer to a religious organization`s understanding oI
what is or is not religious.

24

B. Properly defined, the ministerial exception defers to religious organization`s good
faith understanding of the ministerial position.

The Church`s religious understanding oI Respondent`s job Iunctions and those
Iunctions importance to the church are entitled to substantial deIerence to the religious
institution`s understanding oI its ministerial positions. Such deIerence protects the religious
organization`s constitutional right to autonomy, while also eliminating any conIusion created by
the primary duties test.
Applying this strictly test, it is clear that Perich should be considered a minister.
Hosanna-Tabor is a religious based school that integrates Iaith into all subjects. Respondent was
a commissioned Minister oI Religion that taught religion classes Iour days a week, led students
in daily devotional exercise, led students in prayer three times a day, attended a chapel service
with her students each week, and led a school-wide chapel service twice a year. Whether or not
Respondent had other duties that were secular is insigniIicant. These aIorementioned duties are
religious under a deIerence test. That is enough to trigger the ministerial exception. For the
church, not the state, must have the Iinal say on whether she may perIorm these Iunctions.
CONCL&SION

The judgment oI the Sixth Circuit should be reversed, and the judgment oI the District Court
should be reinstated.
RespectIully Submitted,


Justin A. G
Counsel Ior Petitioner
November 22, 2011

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CERTIFICATE OF SERVICE

This document certiIies hand delivery oI one copy oI this brieI to Shaun Myers, 48395
Student Mailboxes, Detroit, MI, on November 22, 2011.