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The Church–Clergy Relationship and Anti-discrimination Law

  • Nicholas Hatzis (a1) (a2)

In its recent judgment in Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, the United States Supreme Court held that the First Amendment precludes the application of anti-discrimination law to the employment relationship between a church and its clergy. In 2005 the House of Lords had reached the opposite conclusion, ruling, in Percy v Board of National Mission of the Church of Scotland, that the decision to dismiss an ordained minister was not a spiritual matter falling outside the scope of anti-discrimination legislation. This article argues that Percy largely neglected important aspects of church autonomy and that the reasoning in Hosanna-Tabor offers an opportunity to rethink whether secular law should be allowed to affect a religious group's decision to appoint or dismiss a minister.

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1 George, C, ‘The ecclesiastical common law: a quarter-century retrospective’, (2012) 14 Ecc LJ 22.

2 [2012] EWCA Civ 83.

3 Eweida and Others v The United Kingdom (App Nos 48420/10, 59842/10, 51671/10 and 36516/10), 15 January 2013, ECtHR, Fourth Section. The Court found a violation of Article 9 in the case of Ms Eweida, and rejected the other three claims.

4 [2010] EWCA Civ 880. See Sandberg, R, ‘Laws and religion: unravelling McFarlane v Relate Avon Limited’, (2010) 12 Ecc LJ 361370.

5 [2009] EWCA Civ 1357. See Sandberg ‘Laws and religion’.

6 [2010] EWCA Civ 80. See Hatzis, N, ‘Personal religious beliefs in the workplace: how not to define indirect discrimination’, (2011) 74 MLR 287305.

7 [2010] ET 1702886/2009 (21 April 2010).

8 [2009] UKSC 15. See McCrudden, C, ‘Multiculturalism, freedom of religion, equality and the British constitution: the JFS case considered’, (2011) 9 International Journal of Constitutional Law 200229; Barber, P, ‘State schools and religious authority: where to draw the line?’, (2010) 12 Ecc LJ 224228.

9 [2011] EWHC 375 (Admin).

10 [2005] UKHL 73. See Cranmer, F and Peterson, S, ‘Employment, sex discrimination and the churches: the Percy case’, (2006) 8 Ecc LJ 392405.

11 102 S Ct 694 (2012).

12 For a discussion of the application of employment legislation to religious organisations, see Hill, M, Sandberg, R and Doe, N, Religion and Law in the United Kingdom (Alphen aan den Rijn, 2011) part VI.

13 344 US 94 (1952).

14 Ibid, at 119.

15 Ibid, at 115.

16 Ibid, at 119.

17 Ibid, at 116. Following Kedroff, the case was remanded to New York state courts, which again found for the locally elected archbishop but, this time, on the basis of state common law. The US Supreme reversed again in Kreshik v Saint Nicholas Cathedral 363 US 190 (1960).

18 13 Wall 679 (1872).

19 Ibid, at 693.

20 (1817) 3 Merivale 353; 36 ER 135.

21 Watson, 13 Wall 679 (1872) at 727.

22 Ibid, at 728–729.

23 Ibid, at 729.

24 Ibid, at 733.

25 The Supreme Court held that since the pro-slavery faction had split off from the central body of the Presbyterian Church and refused to recognise the election of elders approved by the General Assembly it had no right to the disputed property.

26 Greenawalt, K, ‘Hands off! Civil court involvement in conflicts over religious property’, (1998) 98 Columbia Law Review 1847.

27 Kedroff 344 US 94 (1952) at p 115.

28 Garnett, R, ‘A hands-off approach to religious doctrine: what are we talking about?’, (2008–2009) 84 Notre Dame Law Review 837864; Greenawalt, ‘Hands off!’, pp 1843–1907.

29 Laycock, D, ‘Church autonomy revisited’, (2009) 7 Georgetown Journal of Law and Public Policy 253278; Horwitz, P, ‘Churches as First Amendment institutions: of sovereignty and spheres’, (2009) 44 Harvard Civil Rights–Civil Liberties Law Review 79131; Laycock, D, ‘Towards a general theory of the religion clauses: the case of church labor relations and the right to church autonomy’, (1981) 81 Columbia Law Review 13731417.

30 Laycock, ‘Church autonomy revisited’, p 254: ‘when a church does something by way of managing its own internal affairs, it does not have to point to a doctrine or a prohibition or a claim of conscience in every case. It can make out a good church autonomy claim simply by saying that this is internal to the church. This is our business; it is none of your business.’

31 McCollum v Board of Education 333 US 203 (1948) at 212.

32 Presbyterian Church in the United States v Mary Elizabeth Blue Hull Memorial Presbyterian Church 393 US 440 (1969).

33 Ibid, at 447.

34 Greenawalt, ‘Hands off!’, p 1844: ‘The Supreme Court's basic constitutional approach … is that secular courts must not determine questions of religious doctrine and practice. Not only must they refrain from deciding which doctrines and practices are correct or wise, they must also avoid deciding which are faithful to a group's traditions.’ Garnett, ‘A hands-off approach’, p 842: ‘in our political community, government arms and actors (including courts) steer well clear of theological disputes; they avoid (perhaps to a fault) excessive entanglement with the governance and doctrines of religious communities, institutions, and traditions’.

35 For discussion, see the articles in notes 28 and 29.

36 On church autonomy as the basis for the ministerial exception, see Lund, C, ‘In defense of the ministerial exception’, (2011–2012) 90 North Carolina Law Review 35 ff.

37 Petruska v Gannon University 462 F3d 294 (3rd Circ. 2006) at 306.

38 Ibid, at 307.

39 See eg Rweyemamu v Cote 520 F3d 198 (2nd Circ. 2008); Alicea-Hernandez v Catholic Bishop of Chicago 320 F3d 698 (7th Circ. 2003); EEOC v Roman Catholic Diocese of Raleigh 213 F3d 795 (4th Circ. 2000); Bollard v Society of Jesus 196 F3d 940 (9th Circ. 1999).

40 Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission 132 S Ct 694 (2012) at 706.

41 Ibid, at 707.

42 Ibid.

43 Ibid, at 708.

44 Ibid, at 709.

45 Ibid, at 710.

46 In fact, Title I of the Americans with Disabilities Act 1990 creates a statutory exemption for religious organisations that can give preference in employment to persons of a particular religion or require their employees to conform to a specific religious doctrine, but it does not allow them to discriminate on the basis of disability. For example, a Christian organisation may refuse to employ a disabled non-Christian but not a disabled Christian because of his or her disability. This rule applies to all employees, not merely members of the clergy. On the other hand, the constitutionally mandated religious exception affirmed in Hosanna-Tabor relieves churches of the obligation to not discriminate against disabled people but applies exclusively to the clergy.

47 Schedule to the Church of Scotland Act 1921, Articles Declaratory, Article IV.

48 For discussions of the employment contract issue, see Hill, Sandberg and Doe, Religion and Law in the United Kingdom, pp 118 ff; Rivers, J, The Law of Organized Religions: between establishment and secularism (Oxford, 2010), pp 116 ff.

49 Percy v Board of National Mission of the Church of Scotland [2005] UKHL 73 at para 40.

50 Ibid at para 132.

51 Ibid at para 152.

52 Hosanna-Tabor at 713 (Alito J, concurring). See also the judgment of the US Court of Appeals for the First Circuit in Natal v Christian Missionary Alliance 878 F2d 1575 (1st Circ. 1989) at 1578: ‘[A] religious organization's fate is inextricably bound up with those whom it entrusts with the responsibilities of preaching its word and ministering to its adherents.’

53 See also the point made in Rivers, Law of Organized Religions, p 337, that church autonomy includes ‘a right to select, train, appoint, and dismiss leaders’.

54 Laycock, ‘Church autonomy revisited’, pp 260–261; Horwitz, ‘Churches and the First Amendment’, p 119.

55 Hosanna-Tabor at 706. One of the criticisms against Percy was that it does not preclude the possibility of courts ordering the Church to re-employ the dismissed minister: see Cranmer and Peterson, ‘Employment, sex discrimination and the churches’, p 402.

56 For criticisms of the ministerial exception, see eg Corbin, C Mala, ‘Above the law? The constitutionality of the ministerial exemption from antidiscrimination law’, (2007) 75 Fordham Law Review 19652038; Hamilton, M, ‘Religious institutions, the no-harm doctrine and the public good’, (2004) Brigham Young University Law Review 10991216.

57 See generally Gardner, J, ‘Discrimination as injustice’, (1996) 16 OJLS 353367.

58 Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L 303/16. On religious exemptions in English law, see Sandberg, R and Doe, N, ‘Religious exemptions in discrimination law’, (2007) 66 CLJ 302312.

59 Hosanna-Tabor at 713 (Alito J, concurring).

60 Ibid, at 715 (Alito J, concurring). By contrast, Justice Thomas expressed the view that where the church sincerely considers an individual to be a minister of religion this is sufficient for the ministerial exception to apply: ibid, p 711 (Thomas J, concurring).

61 Petruska at pp 311 ff.

62 Ibid, p 305 (emphasis in the original).

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Ecclesiastical Law Journal
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  • EISSN: 1751-8539
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