Church and Tenure

The Kentucky Supreme Court has issued two unanimous decisions that strengthen the rights of tenured professors at religious institutions.

In one decision the court found that the "ministerial exception" -- which protects churches and some religious groups from some types of employment lawsuits -- does not bar suits over contractual matters such as tenure agreements that can be resolved based on evidence having nothing to do religious doctrine. In the related decision, the court said that just because a faculty member works at an institution where some professors are covered by the ministerial exception does not mean that all professors are covered by that exception.

The decisions reverse lower court rulings that found that the two lawsuits -- both by tenured professors who had been dismissed by the Lexington Theological Seminary -- could not go forward. The Supreme Court's decision does not cover the merits of the lawsuits, but orders that they be heard.

While the decisions are binding only in Kentucky, they come at a time of national legal debate over the reach of the ministerial exception -- and faculty advocates said that these decisions were a significant victory for the rights of professors who teach at seminaries or other religious institutions.

Both lawsuits concern layoffs that the seminary -- affiliated with the Christian Church (Disciples of Christ) -- imposed in 2009, eliminating the jobs of tenured faculty members as part of a plan to deal with falling revenues. The two faculty members on whose suits the court ruled both contended that the way their jobs were eliminated violated contractual relationships between the seminary and its tenured faculty members.

In both cases, the seminary invoked the ministerial exception to say that it could not be sued. When lower courts accepted this argument, many faculty advocates were distressed. They noted that the exception was a reflection of concerns that judicial review of a church's decision to dismiss a pastor could easily involve the courts weighing in on doctrinal disputes, in violation of the First Amendment. In the case of Lexington Theological, however, the professors lost their jobs in what they viewed as a violation of tenure rights, not a theological disagreement.

In one case, involving Jimmy Kirby, who had been a tenured professor of Christian social ethics, the Kentucky Supreme Court affirmed that he was covered by the ministerial exception because he was charged, in part, with teaching the faith and encouraging students to do so after graduation. As a result, the court found that that he could therefore not bring some claims against the college. However, the court found that the exemption did not apply to his claims of breach of contract.

The seminary and the lower courts treated the ministerial exception as too broad, the court ruled. "[T]he ministerial exception does not strip a court of its jurisdiction but, instead, simply disallows the forward progress of the particular suit. The ministerial exception's very name inherently suggests it does not operate as a jurisdictional bar. It is an exception, not an exemption," the decision said.

In this case, it said that courts could see that the dispute was about contract law, not religion.

"We are not presented with a situation where the government is inappropriately meddling in the selection of who will minister to the congregation. Limits on a religious institution's ability to choose -- or the criteria for choosing -- who will minister to its faithful are not being foisted on the religious institution," the decision said. "The government had no role in setting the limits on how the seminary's tenured professors may be terminated. Instead, this is a situation in which a religious institution has voluntarily circumscribed its own conduct, arguably in the form of a contractual agreement, and now that agreement, if found to exist, may be enforced according to its own terms. That cannot breach church autonomy."

The decision goes on to quote the seminary's past pledge to its tenured professors that they would be dismissed only for "moral delinquency," "unambiguous failure to perform the responsibilities outlined in [the Faculty] Handbook" or "conduct detrimental to the seminary." The tenure policy was a contract without religious issues, and should be subject to litigation, the court said.

"Essentially, the seminary willingly made a decision to offer tenure -- a wholly secular concept -- in exchange for professorial services.... Of course, under the First Amendment, and the ministerial exception for that matter, the seminary enjoys the right to excuse ministers as it sees fit. But here, the seminary circumscribed its right to excuse faculty, ministers or not. The seminary agreed to only express its First Amendment right under limited conditions."

The second case involved Laurence Kant, a tenured professor of religious studies. Unlike Kirby, his courses were focused not on advancing the seminary's faith, but on understanding religion generally. Among the courses he taught were Values and Religion in American Culture, Jesus in Film and Literature, War and Peace in Biblical Tradition and Jewish-Christian Dialogue. The Kentucky Supreme Court said that he was clearly teaching religion from an academic, not theological, perspective, and that this does not bring him under the ministerial exception.

Kant is also Jewish, which he argued made it difficult for him to be considered a minister of a Christian denomination. While he participated in seminary activities, he said that he did so as a Jew. The lower court's said that his faith was irrelevant, and that he should be considered (legally) a minister. The Kentucky Supreme Court said that his faith was not the key issue, but could be considered. The court said that it was "possible to imagine" scenarios in which the ministerial exception could apply to someone working for an employer of a different faith.

"[T]he primary focus under the law is on the nature of the particular employee's work for the religious institution," the decision said. "Here, Kant's work was chiefly secular. And the nature of Kant's work, rather than his personal belief system, serves as the basis for the determination that Kant is not a minister. Nonetheless, an employee's personal belief system may be considered."

Via e-mail, Charisse L. Gillett, president of the seminary, said, "We prefer not to comment on matters of pending litigation beyond expressing our continued trust that the seminary will be found to have acted prudently and within our rights as a religious institution. Our focus remains on our mission to prepare faithful leaders for the church."

The American Association of University Professors, which filed briefs on behalf of the two professors, praised the rulings. It said that the court had affirmed the idea "at the heart of the case" -- that a court could apply "neutral principles of law" to evaluate the contractual claims in a way that would not "intrude on matters of church doctrine."