Yesterday’s Hosanna-Tabor decision by the Supreme Court is widely and rightly celebrated as a great victory for religious freedom. I’m interested in its implications for higher education. Both of the major trade publications covered it, the Chronicle here and InsideHigherEd here. The Council for Christian Colleges and Universities, whose members integrate faith and learning, submitted a brief (accessible here) that argued that all faculty in its institutions should be covered by the ministerial exception:
If the institution’s mission is to integrate faith into all subjects, and it affirmatively requires its teachers to do so, then those teachers will qualify for the ministerial exception. This approach will avoid the entanglement that would result if the court had to decide if a history class taught at a religious college was a secular activity….
This is not to say that all faculty at every college or university with a religious affiliation will qualify as ministerial employees. Many religious colleges view their mission differently and do not seek to in-tegrate faith in such a comprehensive way. Accordingly, the duties of faculty at these institutions may not be ministerial in nature. This Court should therefore develop a test for the ministerial exception that takes into account the stated mission of the religious institution when deciding whether its faculty fall within the scope of the ministerial exception.
Justice Clarence Thomas’ highly deferential approach, offered in his concurrence, would clearly have satisfied CCCU. The Court’s much more fact-dependent opinion would seem to leave room for the kind of inquiry into the particulars of a case that the CCCU wants to avoid.
So, a question to all you professional and amateur constitutional lawyers out there. Can you tell from the Court’s opinion how much integration of faith and learning is enough to establish a ministerial exception for faculty?
I should add that for most (all?) Catholic colleges and universities, only a small proportion of the faculty (those teaching theology) would seem to be covered by the ministerial exception. Am I right about this?
January 12th, 2012 | 3:04 pm
Based on Ex Corde Ecclesia and Catholic Church teaching, theology faculty might be considered ministers. However, historically in the Catholic tradition, the definition of minister is pretty narrow. A “strict constructionist” would confine it to the ordained. A broader definition includes individuals who are called by the church to a particular work within or on behalf of the church. That would seem to cover parochial school teachers, lay or religious.
What about leaders in Catholic health care? There’s a consensus within the ministry that mission integration leaders and pastoral care chaplains and associates are ministers. But what about the CEO? A COO, CFO, and so forth? This is going to be an interesting conversation!
January 12th, 2012 | 11:03 pm
Just skimming the decision’s syllabus, the Court has adopted a totality-of-the-circumstances test. Totality-of-the-circumstances tests never provide clear answers. (Elsewhere the syllabus suggests all heads of churches and religious organizations would qualify, so no totality-of-the-circumstances analysis would be necessary.) The factors the Court considered were: 1) Defendant held plaintiff out as a minister. 2) Plaintiff’s role in the religious organization was distinct from most members’. 3a) Her minister title involved religious training and b) a religious rite. 4) Plaintiff held herself out as a minister. 5) Plaintiff went through the rite knowing its religious significance. 6) Plaintiff’s duties involved religious instruction.
Considering the importance here on ministers v. laity and on the rite, it’s hard to say how this will apply to non-denominational and evangelical schools. Only two factors, that of studying and teaching theology, would seem to apply at evangelical schools that are not part of a denomination, or do not require even their theology faculty to belong to the denomination.
It’s also hard to say how it will apply to lay faculty at Roman Catholic schools. My college was on FT’s list of “Most Catholic Catholic Colleges.” Catholic faculty took an oath of fidelity to the magisterium in a convocation ceremony presided over by a visiting Bishop. But of course this was not an ordination or consecration in the sacramental sense, though in effect it’s very similar to evangelical ordination ceremonies. (We discussed this ceremony when discussing who qualified as a “Christian Teacher” in St. Augustine’s “On Christian Doctrine.”) All faculty were expected to teach in accord with Church dogma, and all Catholic faculty were expected to teach theology, but not all faculty were Catholic, and non-Catholics were not allowed to teach theology. My college also emphasized that the entire college community should foster students’ spiritual development. That could wrap even the landscapers into the ministerial exception. Still, I’d say the factors we have suggest all Catholic faculty there qualify, while non-Catholics do not.
At a Catholic school that’s not as big on ceremonial, we’re back to the totality of the circumstances. Some Catholic schools that will never appear on FT’s Least Catholic Catholic Colleges list still allow non-Catholics to teach Bible and biblical languages classes. Some may have the same rules about teaching as mine, just without the ceremony.
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