Kudos to Kentucky for Kant and Kirby

Photo Credit: Dav!dB (Own work) [CC-BY-SA-3.0], via Wikimedia Commons

Kudos to Kentucky Chief Justice John D. Minton Jr., son of a former history professor and college president at Western Kentucky University, and the Kentucky Supreme Court for their lucid opinions allowing two tenured professors at Lexington Theological Seminary to sue their employer for breach of contract, thereby reversing an appeals court decision that had dismissed the two professors’ lawsuits under the First Amendment.

As tenured faculty members, both Professors Laurence Kant and Jimmy Kirby had contracts with the Seminary stating “The only grounds for dismissal of a tenured faculty member are moral delinquency, unambiguous failure to perform the responsibilities outlined in [the Faculty] Handbook, or conduct detrimental to the Seminary.” Nonetheless, after the school experienced financial hardship, and the professors rejected severance packages from the school, both men were fired. When the professors sued to enforce their tenure contracts, the trial and appeals courts dismissed their lawsuits on the grounds that both men were ministers barred by the First Amendment’s ministerial exception from suing their religious employer.

Professor Laurence Kant is Jewish, received his Ph.D. in Religious Studies from Yale University, was tenured under the titles of Professor of Religious Studies and Professor of the History of Religion, and taught numerous academic subjects at the Seminary, including Jewish Studies, Hebrew Bible, American religion, Greek and Hebrew. Nonetheless, in a shocking decision, the appeals court had ruled that the Jewish professor was a Christian minister despite the facts (as I argued in an amicus brief for Kant) that Religious Studies is a secular discipline and that, because of his Jewish faith, Kant could not and did not participate in any ministerial activities at the school.

Rejecting the Seminary’s argument that the ministerial exception applies categorically to all professors employed by seminaries, the Court straightforwardly ruled that Kant was not a ministerial employee. Explaining that a minister is commonly viewed as “the face of the religious institution, permitted to speak for the religious institution, the embodiment of the religious institution’s tenets, and leader of the religious institution’s ritual,” the Court concluded “Kant did none of these things.” Amidst the review of Kant’s duties at the seminary, it was refreshing to read the Court’s acknowledgment that Kant’s work was secular and academic. He was doing the work the Seminary had tenured him to do. Kant’s breach of contract lawsuit may now proceed.

Professor Jimmy Kirby’s case was more complicated. It involved an allegation of racial discrimination as well as breach of contract. Moreover, Kirby is an (unordained) Christian belonging to a different Christian denomination from his employers. Nonetheless, as a Christian (and unlike Kant), the Court found that Kirby taught classes on Christian doctrine, participated in chapel services, preached and prayed at many school events, and served communion. In other words, he “conducted worship services, important religious ceremonies and rituals, and acted as a messenger of the Seminary’s faith,” thereby qualifying as a minister.

Because Kirby was a minister, the Court concluded, his racial discrimination lawsuit must be dismissed. The Court read the Supreme Court’s precedent on the ministerial exception, Hosanna-Tabor, to bar employment discrimination suits. Because the racial discrimination lawsuit was an employment discrimination lawsuit and Kirby was a minister, that lawsuit was dismissed.

Then the Court made an important argument, which other courts should heed, allowing Kirby’s breach of contract claim to proceed. Under the ministerial exception, the Court explained, courts may not interfere with a religious organization’s choice of minister. In a contract, however, it is not the government that restricts the employer, but the employer that restricts itself. Because Lexington Seminary voluntarily entered into its contract with Kirby, it was bound by it. In that sense, churches are just like other organizations, which are free to burden their activities voluntarily through contracts and then face enforcement of those contracts in courts of law. “Accordingly, the Seminary’s decision to fire a tenured professor, whether a minister or not, is completely free of any government involvement or restriction. In the absence of government interference, the ministerial exception cannot act as a bar to an otherwise legitimate suit.”

Describing tenure as a “wholly secular concept” protected in the contract, the Court ruled that Kirby, like Kant, could sue under the contract that allowed only three causes for termination. The Court acknowledged that, in some circumstances, the ecclesiastical abstention rule, which forces the courts to abstain from purely doctrinal disputes, could keep a breach of contract claim from court. But not in Kirby’s circumstances. Kirby’s suit, like Kant’s is not doctrinal; it simply involves the construal of the tenure language of their contracts, which can be studied by courts under neutral principles of law.

And that Kentucky fans, is big news. After a rocky start, Kant and Kirby are back in the court.

Leslie C. Griffin

Leslie C. Griffin

Dr. Leslie C. Griffin is the William S. Boyd Professor of Law at the University of Nevada, Las Vegas, William S. Boyd School of Law. Professor Griffin, who teaches constitutional law, is known for her interdisciplinary work in law and religion. She holds a Ph.D. in Religious Studies from Yale University and a J.D. from Stanford Law School.