Title:

FREEDOM, FUNDAMENTAL HUMAN RIGHTS AND RELIGION IN EUROPEAN

AND US JUSTICE COURTS
BETWEEN HOSANNA TABOR LUTERAN EVANGELICAL CHURCH CASE AND
“THE GOOD SHEPHERD” TRADE UNION: HUMAN RIGHTS CLAIMS INSIDE THE
ROMANIAN ORTHODOX CHURCH

Author:

Associate Professor Marius Harosa, Ph.D., Faculty of Law, Babes-Bolyai University,

mharosa@law.ubbcluj.ro

Abstract:

How does social change challenge religious institutions? Various institutions dealing with
human rights in the European Union increasingly deal with religious issues and a overview upon
US Supreme Court jurisprudence on similar matters. This paper analyses several such cases. It
reports the social and legal changes that lead to the attempts to unionize of a group of thirty-two
Romanian Orthodox priests and lay persons which gathered to represent and protect issues
regarding labor rights and self-governing. In 2008, the “The Good Shepherd” trade union filed
a case at the European Court of Human Rights against the Romanian state and against the
Romanian Orthodox Church’s prohibition to unionize, granted under the article 11 of the
Convention for the Protection of Human Rights and Fundamental Freedoms. We will focus on
the European Union membership, on the increased liberalization and pluralization of the
Romanian religious market as well as the country’s delicate economic context. Political and
economic transformations of the last decades show how some Orthodox clergy may approach
human rights and may now use them to officially challenge hierarchical, traditionalist and
professed compact structures such as the Romanian Orthodox Church. As a mirror, we will
discuss the Hosanna Tabor case, which, in US jurisprudence, establishes the same principle of
facially neutral laws, on the both sides of the Atlantic Ocean.

Keywords: religion and politics, religion and law, religion and social change

The eastern enlargement of the European Union (EU) raised new questions and
challenges regarding various types of secularization patterns, and different Church-state relation
models (Davie 2000: 15, Spohn 2007: 19, Martin 2005, Halikiopoulou 2011). The traditional

1
bond between Church and state in Romania is usually described as the bilateral relationship
between Orthodoxy, with a majority population of Orthodox faith, and the state. The state
recognizes other important, although minority churches, the Romanian Orthodox Church (ROC)
is by far the most visible religious institution, and it is largely represented in the media. Minority
religious, such as the Roman Catholic, the Greek Catholic, the Reformed Church, but also the
increasingly popular Pentecostal, Baptist or the 7th Day Adventist Church. However all official
or recognized cults function under the cult law, which formally separates and regulates the
relationship between church and the state (Harosa, 2011: 62-72).
Although minority churches have public visibility they are less successful in setting their
public agenda and in getting the same amount of attention from the state or from mass media.
From this point of view any social actions driven by faith or against faith typically mention the
ROC, since minority voices inside the ROC or minority churches are less accountable simply
because their actions are less visible. The issue at hand regarding clergy’s human rights claims
against ROC’s autonomy originates in the accommodationist approach encouraged by the state
after 1990. All recognized cults may benefit from payment from the state in form of stipends for
church construction and refurbishing, as well as subsidies for salaries. To understand the position
of the ROC it is sufficient to know that in the latest census (2011), 86% of the Romanian
population identified themselves as Orthodox Christians.
Beginning with 1990 the ROC started to reconfigure the clergy’s salaries according to
university pay scales and declared its intention to become autonomous from the state which in
the ROC’s vision did not include separation, but only the removal of state intervention in
Church’s businesses (Conovici 2009: 85-86). Therefore in May 1990, the government issued a
resolution which stipulated that the government body which dealt with religion, the State
Secretary for Cults (Secretariatul de stat pentru culte) is no longer controlling the Church but
should instead “support” the Church (Conovici 2009, 87). The Government’s State Secretary was
also no longer able to participate in electing bishops. However, the Holy Synod allowed the
confirmation of bishop nominations by presidential decree. The ROC requested and obtained the
right to have some hierarchs as members of the Parliament as in the interwar period but the
Church is officially against party politics, and prohibits its clergy to participate as candidates in
elections (Conovici 2009).
Another important issue which helped to encourage the formation of the trade union
concerns the state’s neutrality towards religious groups and the privileged position of the ROC
vis a vis the state and the Romanian nation. The ROC relied on the bond between the ROC and
the Romanian nation (Tarta 2012, Romocea 2011, Conovici 2009:149) and on this ground it was
rarely in a position to criticize the state, and did so only when it’s quasi-official status of
“national church” was challenged, or for example when same sex relationships were
decriminalized under EU’s recommendations and authority. Meanwhile, the other Churches
carried a daily war against state’s anti-proselytism policy, and against the state’s interference and
restrictions in matters of faith. The liberalization of the religious life in 1990 meant that the state
could no longer persecute and actively control religious groups but rather use their image for

2
political gains. The old cult law was only recently modified and more regulatory measures
replaced the old ones (Conovici 2009). From this point of view it is again of little surprise that a
group of priests would unionize since the state intervenes and regulates many of the aspects
regarding religious life.
The EU membership supposedly granted not only the country’s future stability and
prosperity, but also protection under the EU laws. This meant that at least theoretically
Romanians became more knowledgeable of their own rights and responsibilities. Positioned in
the vicinity of the state with assisted wages and collaborating with the state on multiple levels,
the clergy’s rights became undistinguishable from workers’ rights to unionize, to free speech and
opinion.
In addition, the confusion was also influenced by the European Court’s uncertainty and
double-standard treatment of such issues. Even though Romania’s religious life was often
considered too restrictive, and the ROC’s handling of the Greek Catholic minority was
despicable, the situation was not much different in the rest of Europe. Pat Ashworth noted that
the Romanian cult law became the one of the most burdensome legislation on religion in the
OSCE, since one fourth of religious associations do not qualify as denominations, and groups
with less than 300 members would not be allowed to build churches and to have staff and paid
clergy (Ashworth, 2007: 5).

As its decisions show, the European Court of Human Rights tolerates establishment,
differential treatment of mainstream and peripheral churches, and the denial of ‘church’
status to certain religious groups. It has also found the banning of Refah, the Islamist
Turkish party, acceptable, in spite of the fact that the party, which used to be the largest
in the Turkish parliament, played by the rules of democratic competition. Even when
state authorities are found to violate the rights of religious groups, the Court, as with its
American counterpart, prefers to treat them not as freedom of religion, but as, for
example, freedom of speech issues.

While Păstorul cel Bun trade union may be seen as a dissenting voice which for a very
short time was able to be recognized and to claim “this-worldly” rights, nothing seemed to have
stopped religious groups elsewhere from influencing trade unions to strengthen their particular
views. Păstorul cel Bun trade union was the result of increased liberalization and the incarnation
of the confusion regarding the ROC’s position visa a vis the Romanian state. The Church as an
autonomous body may be interrelated with trade unions, and the Solidarity trade union in Poland
was the best example. Churches hardly envisioned inner frictions leading to unionization since
they disregarded the support of the state and focused only on the obstacles that the state posed.
Enyedi (2003: 219) argued that labor unions and other organizations may indeed be influenced or
co-opted by the Church but noted that the relation is complicated by strong connections between
Church and state:

3
 The multi-faceted nature of churches raises particularly interesting questions concerning
the opposition between private and public. The insistence of churches on retaining or
acquiring autonomy, or developing a political agenda, may be particularly contentious
when they function as ‘para-public’ institutions.

On the other hand, the ROC did not develop direct relationships with Romania’s trade unions,
signaling a superficial level of involvement in Romania’s working environment. As noted
elsewhere (Tarta 2012) the ROC as a monopoly Church, preferred to preserve its positive image
and its power, and continued to rely on the idyllic bond between Church and nation. Thus, in the
nexus of Church, state and nation, the Church allowed the national and even nationalist aspect to
blur the most pressing social needs and interests of its flock, and defined believers as ethnic-
citizens. The ROC was uncertain of its influence on the people’s daily lives even though polls
measured high sympathy for the Church with more than 95 % of Romanians saying that they
believe in God (Conovici 2009:157). When it was questioned for its lack of involvement in
social matters, the ROC insisted that social issues are not part of the Church’s main mission and
Statute, and that any attempts to change this mission would secularize the Church.

Legal aspects of the formation of “Păstorul cel Bun” Trade Union

In April 2008 thirty-five clerics and lay members of the ROC decided to establish a trade
union based on their status of being on the state’s payroll as regular state employees. The elected
president requested the local Court to grant legal personality to the union and to enter it in the
trade-unions register. The Archdiocese lodged an objection but the union’s representative
reiterated the request, which was supported by the public prosecutor’s office. In May 2008 the
Court granted the union’s request and ordered its entry in the trade-unions register. The
Archdiocese appealed against that judgment and in July 2008 the county Court allowed the
appeal and dismissed the union’s request. It argued that it needed to protect Christian Orthodox
tradition, its founding dogmas and the rules of canon law governing and decision-making. It also
found that it was not legally possible for members of the clergy to join a trade union since they
held leadership positions in their parishes. The county Court took note of the union’s statute
which did not conflicted with the statute and canons of the ROC, even though it aimed to defend
the social and economic rights of its members. In presenting its decision the Court did not
examined the employment contract, or the distinction between clergy and lay employees, and
relied entirely on the provisions of the ROC’s Statute.
The case was submitted to European Court for Human Rights, application 2330/09,
claiming the violation of art. 11 of European Convention of Human Right. The application was
allocated to the Third Section of the Court Chamber of that Section, delivered a judgment in
which it unanimously declared the application admissible and held, by five votes to two, that

4
there had been a violation of Article 11 of the Convention, considering that the persons
employed by the Church may enjoy the same trade union rights as other employees, and that the
employment relationship cannot be “clericalised” and exempted from all rules of civil law.
Following a request submitted by the Romanian government on 27 April 2012, a panel of
the Grand Chamber (GC) decided to refer the case to the GC in accordance with Article 43 of the
Convention. The GC considered that religious associations should be safeguarded from
unjustified state interference. Therefore, believers have the right to be free of arbitrary state
intervention and in this case the GC considered that the union’s recognition might have
jeopardized the Church’s autonomy. According to Romanian cult law the principle of the
autonomy of religious communities is the cornerstone of relations between the Romanian state
and the religious communities recognized within its territory, including the ROC. Under article 9
of European Convention of Human Rights, about freedom of thought, conscience and religion,
the state cannot influence the Church’s membership, and cannot grant rights of dissent within a
religious body. However if disagreement over doctrine or organization is involved, the
individual’s freedom of religion is exerted through his freedom to leave the community
(Miroļubovs and Others v. Latvia 2009).
In Romania, all recognized religious groups are entitled to adopt their own internal
regulations concerning their operations, recruitment of staff and relations with their clergy.
Clergy members are under the authority of bishops and the ROC did not incorporate labor law
provisions into its statute. This government endorsed this decision regarding labor by a
government ordinance, in conformity with the principle of autonomy of religious communities.
The GC acknowledged without much preciseness the role of the state in maintaining neutrality
towards religion, and about neutrality’s benefits, such as public order, religious harmony and
tolerance. In addition to having a relaxed definition of neutrality, the GC labeled the union as a
“dissident faction” inside the church, bringing it outside the scope of the state’s intervention. The
Court admitted that since there is no European consensus on these matters the state’s decision is
more relevant. Section 8 of the Religion Freedom Act 489/2006, established that:

Recognised religious communities shall have the status of charitable corporations. Under
the provisions of the Constitution and this Act, they shall be organized and shall operate
independently in accordance with their own statutes or canons.

On the other hand, through the resolutions based on the section 49 of the Religion Freedom Act,
the state acknowledges the validity of the status and the canons of recognized cults- mentioned in
the annex of the Act. The current Statute of the ROC was adopted by the Holy Synod on 28
November 2007 and approved by the Government ordinance no. 53/2008. Thus, the case against
the union was a case where the juridical doctrine sanctioned the so called canonization of civil
law, based on the principle of subsidiarity, and on its corollary, the autonomy of canon law vis a
vis state law. Through the canonization of state law, we understand the embedding of state law,
if compatible with canon law, and their full application in the canon law system. As we can

5
observe, ROC utilises the state’s civil law only on those occasions when civil law is not contrary
to the divine law, or with canon law. An incompatibility case occurs when “it is obvious that a
canon normative measure different from a civil normative measure may determine severe
inconveniences, of practical order, or of being without effect (Feliciani ). From this point of view
the ROC cannot allow for a trade union to act against the hierarchy.
In canon law, the main understanding of the term subsidiarity comes from the principle of
specialia generalibus derogant, which means that both general and specific rules may apply to a
legal issue. Moreover, subsidiarity is based on the primary Ecumenic Synods’ canons which
established the duties of the lower clergy, and the tasks regarding the issuing of normative
provisions (Harosa, 2011:58-64). The secondary meaning of subsidiarity implies that ecclesial
rules allow the intrusion of state law in various areas. This secondary connotation entails
referencing civil law (or the canonization of civil law). Closeness to civil law is done through
various means: references to civil law, renouncing jurisdiction in favor of the civil law system,
observing certain rules with exemplarily value, rejecting contrary legal provisions.
The procedure becomes effective when a certain issue is fully under the competency of
the Church (Falchi 1999:173), and when the state cannot legitimate and interfere with the
Church’s autonomy (Falchi 1999:173-174, De Paolis 1997:33). At times, considering the nature
of the legal issue, the Church finds importunate to intervene with its own norms, in a legal
branch which must be legislated (Feliciani 123, Harosa 78). Canon law’s legal capacity and its
enforcement reside in the canon judge, and in the hierarchical authority. Canon law’s solution is
about referring to civil law in canon law, and not about handing over jurisdiction to civil law.
Civil courts do not have jurisdiction over the civil law which is canonized in canon law, and the
enforcing of civil law will be censored and realized by the higher Church authorities and the
canonic courts, while it is nevertheless necessary that canonic judges are familiar with civil law.
Through the subsidiarity principle the canon law refers to the civil law which regulates certain
aspects of the juridical accounts, but at the same time it may reserve its right to censor the
enforcement of certain norms which are contrary to the divine law, or to the imperative
principles of canon system.

Europenization and Human rights

The successive governments from 1990 to 2010 had a difficult time convincing the ROC
about the necessity to adopt the EU’s standards. To some extent the EU was able to impose its
views about “religious freedom, neutrality of the state and religious/secular equality norms”
(Spohn 2007: 10, Enyedi 2003: 217), and human rights provisions of individual will and rights,
such as those regarding same sex relations, etc. While the EU imposed the European norms
threatening with infringement procedures, the ECHR’s verdict assumed that a decision in favor
of the trade union would be equal to the state interfering with the autonomous body of the

6
Church. This line of interpretation remains problematic since theoretically ECHR may face much
more problematic civil and human rights claims as meddling with the Church’s authonomy.
Europeanization did not mean only conformity to legal EU standards but conformity with
the neoliberal philosophy of the EU (Gauthier & Martikainen 2013). While for many Romanians
Europeanization meant closeness to Europe and protection under the umbrella of European
institutions such as the European Court of Human Rights, beginning with the late 1990’s, in
practice, it also meant an increased insecurity in front of liberalization and market forces where
privatization has almost halved the available jobs, labor unions were weakened (Trif 2013,
Stoiciu 2012) and the “share of persons who are at work and have an equivalent disposable
income below the risk of poverty threshold” was 18 % in Romania, the highest in EU (Eurostat
2014). The apparition of a trade union inside the Orthodox Church is not new to the region. In
2010, a group of Orthodox priests from Bulgaria announced that they will form a union that will
join the Podkrepa general labor union, since most of the clergy from rural Bulgaria were
confronted with late salary and contribution payments (România libera, 2010). The formation of
“Păstorul cel Bun” trade union was also preceded by the Lord’s Host (Oastea Domnului), a
charismatic Orthodox group with roots in the interwar period, and by other independent
associations (Conovici 2009). After a time of frost relations between Lord’s Host and ROC, the
first came to embrace again in late 90’s the ROC official and religious dogma.
The difficulty lies further in defining the Church’s clergy either as typical workers or as
special workers performing voluntary work that requires a calling.

The premises that lead to the creation of the “Păstorul cel Bun” trade union were the special
relationship between the ROC and the Romanian state, among which the privileged position of
the ROC vis a vis the state when compared with minority Churches, and the self-enforcing
mechanism set in motion by the state’s granting of most funding to the ROC. The legal aspects
and the legal issue that developed into an important human rights case at the ECHR were a direct
consequence of the incertitude regarding the status of the ROC’s employed clergy and lay
persons, of the provisions of the canon law regarding subsidiarity, and on the state’s engagement
towards the ROC.
Since all the recognized cults benefit from state funding in supporting the priest’s salaries
the discussion about religious liberty and the retreat of the state in matters of faith is more
complicated. When the ECHR gave the decision in favor of the Church it considered that any
other decision would interfere with the liberty and autonomy of the Church. However, few
arguments were presented about the current situation of the religious freedoms in Romania, or
the current state of affairs between the Church and state, which are certainly not about full
autonomy or freedom but about a strong informal connection based on the ethno-religious bond,
and on substantial state support for the ROC. On the other hand, the confusion deepens by the
state indirectly providing remuneration for priests, offering financial assistance calculated on the

7
basis of the Church’s number of adherents. The Church redistributes the funds it received, in
12,765 assistance payments between 160 and 360 Euros to the clergy, while the it paid 1,005
priests and 1,408 lay employees from its own funds (Pastorul cel bun ECHR case, no.30 and
above).
The clergy’s decision to use human rights arguments and to recast inner struggles within
the Church into human rights language shows the problematic relationship between Church and
state. While Church autonomy may indeed be an issue, the state’s funding of religious bodies
clearly undermines the Church’s autonomy. Depending largely on state funding the ROC’s
claims to full autonomy should consider the consequences of being autonomous and dependent
at the same time. Any further progress would probably involve ceasing of funding towards
Churches and their gradual reliance on their faithful. Also the state cannot reasonably insist to
keep the privileged relation with the ROC when this involves problems with various minorities
and especially since the ROC is not as greedy and obstinate as usually depicted (Conovici 2009).
Moreover, any future issue arising from the confusion between the state and the Church’s
autonomy, between the laic sphere and the liturgical domain, may not be so easily resolved since
the petitioners and the public are growing with discontent. If state funding for the Church
continues, any doubtful action done by ROC hierarchs would require more attentive
interventions based on both the canon and the civil law, specifically regarding simony and
embezzlement. The ROC’s decision to deal with such issues in private while it occupies a central
place in the public sphere is not the best strategy as these and other recent events show.

Hosanna-Tabor Evangelical Lutheran Church vs. EEOC (Equal Employement

Opportunity Commission)

The U.S. Supreme Court ruled unanimously in what the Wall Street Journal called one of the
“most important religious liberty cases in a half century.”

Hosanna-Tabor operates a school founded on biblical principles. Cheryl Perich was a

commissioned minister in the Church who taught fourth grade, taught religion, and led worship
services. She was dismissed for insubordination and disruptive conduct and threatening to sue
the Church, all in violation of church teachings. The Church and its denomination have long
taught that disputes over fitness for ministry must be resolved within its denomination.

Perich claims the school retaliated against her for threatening to file a discrimination claim. The
Church argues that forcing it to retain Perich against its will, or forcing it to pay large sums of
money to get rid of her, would be an unconstitutional restriction on its right to choose its
religious leaders.

The lower courts are unanimously agreed that ministers cannot sue their churches in disputes
over qualifications, job performance, or rules for ministry—a rule known as the “ministerial

8
exception.” The federal trial court applied the ministerial exception and ruled for the
Church. But the Sixth Circuit Court of Appeals held for Perich, ruling that she was just a fourth-
grade teacher and not really a minister. The school then retained to seek certiorari to the U.S.
Supreme Court, which agreed to hear the case because there was a difference of opinion among
the federal courts of appeals about which church employees count as ministers.

Perich and the Equal Employment Opportunity Commission have now escalated the dispute,
arguing that there should be no ministerial exception and that any minister — even a priest, a
rabbi, or a pastor of a congregation — should be able to sue the church that employs him. This
would be a revolution in church-state relations.

On January 11, 2012, the government lost 9-nothing as the Court unanimously rejected its
narrow view of religious liberty as “extreme,” “untenable” and “remarkable.”

The unanimous decision adopted saying that religious groups should be free from government
interference when they choose their leaders.

Held:

1. The Establishment and Free Exercise Clauses of the First Amendment of the US
Constitution (Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof) bar suits brought on behalf of ministers against their churches, claiming
termination in violation of employment discrimination laws.

(a) The First Amendment provides, in part, that “Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the
established Church of England, the founding generation sought to foreclose the possibility of a
national church. By forbidding the “establishment of religion” and guaranteeing the “free
exercise thereof,” the Religion Clauses ensured that the new Federal Government—unlike the
English Crown—would have no role in filling ecclesiastical offices.

(b) This Court first considered the issue of government interference with a church’s ability
to select its own ministers in the context of disputes over church property. This Court’s decisions
in that area confirm that it is impermissible for the government to contradict a church’s
determination of who can act as its ministers. See Watson v. Jones, 13 Wall. 679; Kedroff v.
Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94 ; Serbian
Eastern Orthodox Diocese for United States and Canada v. Milivojevich, 426 U. S. 696 . Pp. 10–
12.

(c) Since the passage of Title VII of the Civil Rights Act of 1964 and other employment
discrimination laws, the Courts of Appeals have uniformly recognized the existence of a

9
“ministerial exception,” grounded in the First Amendment, that precludes application of such
legislation to claims concerning the employment relationship between a religious institution and
its ministers. The Court agrees that there is such a ministerial exception. Requiring a church to
accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon
more than a mere employment decision. Such action interferes with the internal governance of
the church, depriving the church of control over the selection of those who will personify its
beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which
protects a religious group’s right to shape its own faith and mission through its appointments.
According the state the power to determine which individuals will minister to the faithful also
violates the Establishment Clause, which prohibits government involvement in such
ecclesiastical decisions.

The EEOC and claimant contend that religious organizations can defend against employment
discrimination claims by invoking their First Amendment right to freedom of association. They
thus see no need—and no basis—for a special rule for ministers grounded in the Religion
Clauses themselves. Their position, however, is hard to square with the text of the First
Amendment itself, which gives special solicitude to the rights of religious organizations. The
Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a
religious organization’s freedom to select its own ministers.

The EEOC and claimant Perich also contend that Employment Div., Dept. of Human
Resources of Ore. v. Smith, 494 U. S. 872 , precludes recognition of a ministerial exception. But
Smith involved government regulation of only outward physical acts. The present case, in
contrast, concerns government interference with an internal church decision that affects the faith
and mission of the church itself. Pp. 13–15.

2. Because Perich was a minister within the meaning of the ministerial exception, the First
Amendment requires dismissal of this employment discrimination suit against her religious
employer. Pp. 15–21.

(a) The ministerial exception is not limited to the head of a religious congregation. The
Court, however, does not adopt a rigid formula for deciding when an employee qualifies as a
minister. Here, it is enough to conclude that the exception covers Perich, given all the
circumstances of her employment. Hosanna-Tabor held her out as a minister, with a role distinct
from that of most of its members. That title represented a significant degree of religious training
followed by a formal process of commissioning. Perich also held herself out as a minister by, for
example, accepting the formal call to religious service. And her job duties reflected a role in
conveying the Church’s message and carrying out its mission: As a source of religious
instruction, Perich played an important part in transmitting the Lutheran faith.

10
 In concluding that Perich was not a minister under the exception, the Sixth Circuit committed
three errors. First, it failed to see any relevance in the fact that Perich was a commissioned
minister. Although such a title, by itself, does not automatically ensure coverage, the fact that an
employee has been ordained or commissioned as a minister is surely relevant, as is the fact that
significant religious training and a recognized religious mission underlie the description of the
employee’s position. Second, the Sixth Circuit gave too much weight to the fact that lay teachers
at the school performed the same religious duties as Perich. Though relevant, it cannot be
dispositive that others not formally recognized as ministers by the church perform the same
functions—particularly when, as here, they did so only because commissioned ministers were
unavailable. Third, the Sixth Circuit placed too much emphasis on Perich’s performance of
secular duties. Although the amount of time an employee spends on particular activities is
relevant in assessing that employee’s status, that factor cannot be considered in isolation, without
regard to the other considerations discussed above. Pp. 15–19.

(b) Because Perich was a minister for purposes of the exception, this suit must be
dismissed. An order reinstating Perich as a called teacher would have plainly violated the
Church’s freedom under the Religion Clauses to select its own ministers. Though Perich no
longer seeks reinstatement, she continues to seek frontpay, backpay, compensatory and punitive
damages, and attorney’s fees. An award of such relief would operate as a penalty on the Church
for terminating an unwanted minister, and would be no less prohibited by the First Amendment
than an order overturning the termination. Such relief would depend on a determination that
Hosanna-Tabor was wrong to have relieved Perich of her position, and it is precisely such a
ruling that is barred by the ministerial exception.

Any suggestion that Hosanna-Tabor’s asserted religious reason for firing Perich was
pretextual misses the point of the ministerial exception. The purpose of the exception is not to
safeguard a church’s decision to fire a minister only when it is made for a religious reason. The
exception instead ensures that the authority to select and control who will minister to the faithful
is the church’s alone. Pp. 19–20.

(c) Today the Court holds only that the ministerial exception bars an employment
discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her.
The Court expresses no view on whether the exception bars other types of

The interest of society in the enforcement of employment discrimination statutes is

undoubtedly important. But so too is the interest of religious groups in choosing who will preach
their beliefs, teach their faith, and carry out their mission. When a minister who has been fired
sues her church alleging that her termination was discriminatory, the First Amendment has struck
the balance for us. The church must be free to choose those who will guide it on its way.

11
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