Great Stuff Found on the Web — Forest Boar on Courts Note LCMS “Commissioned Minister” Fiction

Another excellent article from Wild Boar from the Forest found here.

It was bound to happen. The fiction that teachers are “Commissioned Ministers”, executing a ministerial and religious role (kingdom of the right) instead of a secular (kingdom of the left) has been found out by the sixth circuit court, and may even be adjudicated by the Supremes themselves. What happened?

A congregation “fired” (word used by the court) a so-”called teacher” who then filed suit under the ADA retaliation law. (Actually the Equal Opportunity Employment Commission filed suit, but the teacher joined in.) The Court of appeals ruled that teacher was not specifically a religious employee, because:

  1. Her duties before being colloquized and after did not change.
  2. Most of the instruction was not specifically religious – she could only remember two occasions in five years where religious instruction was given in ‘secular’ topics
  3. Even the contract (including one non-Lutheran!) teachers led chapel, making it not a specifically ministerial duty.

Read the whole thing yourself, if you wish. Volokh talks about it here. You can find the Appeals Court ruling here. A law firm that seems to be unconnected to the case has a note about it here. Which I mention because of the following statement from the concurring opinion by Judge White:

Tipping the scale against the ministerial exception in this case is that, as the majority points out, there is evidence here that the school itself did not envision its teachers as religious leaders, or as occupying ‘ministerial’ roles. Hosanna-Tabor’s teachers are not required to be called or even Lutheran to teach or to lead daily religious activities. The fact that the duties of the contract teachers are the same as the duties of the called teachers is telling.

Indeed it is. There are other disturbing things about this, including, but not limited to the following*

  1. That the congregation simply assumed that a called worker would resign when asked. That’s why they are called, so you can’t do that.
  2. That the congregation had non-Lutheran’s leading chapel!!!
  3. That so little religious content was included in the regular course of instruction.
  4. That the mere threat of someone asserting their legal rights under the law in the face of unjust termination was considered by anyone “insubordination and disruptive”.
  5. That the congregation used this as the basis to “rescind the call”??? Let’s hope that the court simply erred in terminology. You can’t do that (More under #6). Assuming they declared her unfit, what was the specific charge? Pointing out that the law protects the rights of church workers from unjust treatment? The Synod(inc.) is not above the law. We “INC.” our synod and the congregations to enjoy certain legal benefits that the government gives to “INCs”. We can not then turn around and say, “We aren’t subject to any of the laws that would impede our ability to do whatever the heck we please” when we find it perfectly acceptable to be subject to the ones that benefit us. Districts and congregations also “INC” themselves for the same reasons. As an “INC”, you are then subject to the rules, and must play by them. That means either obeying the laws to which we are subject, or expecting people to sue us.
  6. You can not rescind a call. You can not fire a called church worker. You can remove them for cause. There was no cause here. Let’s review. 1) False Teaching? Nope. 2) Conduct Unbecoming? They didn’t even claim that in the court filing. They simply said they were religious, and so didn’t need to follow the law. 3) Inability or unwillingness to carry out the duties? According to her doctor, no. So what cause had they?

Quite frankly, they should be sued. Because they weren’t actually providing a Lutheran education. They were using the call process to save money on salary, not because they actually believed that these people were ministering to children. They were allowing chapel to be led by those who are scripturally ineligible to do so.

Oh yeah, and they broke the law by firing someone.

Now, the upside to this is that the government doesn’t communicate well with itself. Because if it did, the IRS might find out that we have, for fifty years, been treating teachers like the ministers they aren’t solely for tax reasons.** And if they find that out, they might decide they want their money. And that would be bad.

*These are from the summary, which consists of the judicially determined facts in the case – either those not in dispute or those disputed, by which have received a judicial determination as to which version of facts are considered true by the court.

**Don’t believe me? Guess who came up with the term “Commissioned Minister”? It’s an IRS category. You will search in vain through all the writings of the church through all of history, until the exact moment that the IRS came up with the word. All of a sudden, it is a cherished Lutheran Doctrine.


He later added:


A Clarification

In my previous post, I said, “They should be sued.”  Do I then mean that I think the government should be able to direct churches to hire (or rehire) certain teachers?  Am I suggesting that LCMS members should not abide by the dispute resolution process to which we implicitly (or explicitly, depending our your point of view) agree when we become members of the synod?  You can also insert here any other questions regarding the major legal issues regarding this case, because the answer to all of them is :




My point, amid all those words, was very simply this:

The church exists for a specific purpose.  So then also should any and all schools that the church may open.  We really need to keep that purpose front and center.  When the focus wanders, strange things happen, and we end up doing things that act against that purpose.

Also, we can not justify each and every action we take with the statement “We are The Church!  Of course our actions are justified.”  Such arguments have fueled injustice from the beginning of time, including the death of the prophets, the death of our Lord, the absolute certainty that the Roman Pontiff couldn’t be wrong about Luther, and even the recent death sentence handed down to Said Musa for the crime of converting to Christianity.  (By the Grace of God, he has been released, and is now safely in another country.)

About Norm Fisher

Norm was raised in the UCC in Connecticut, and like many fell away from the church after high school. With this background he saw it primarily as a service organization. On the miracle of his first child he came back to the church. On moving to Texas a few years later he found a home in Lutheranism when he was invited to a confessional church a half-hour away by our new neighbors.

He is one of those people who found a like mind in computers while in Middle School and has been programming ever since. He's responsible for many websites, including the Book of Concord,, and several other sites.

He has served the church in various positions, including financial secretary, sunday school teacher, elder, PTF board member, and choir member.

More of his work can be found at


Great Stuff Found on the Web — Forest Boar on Courts Note LCMS “Commissioned Minister” Fiction — 19 Comments

  1. Begs the question for me… If you want to have a school, why? If the attached school (Christian or Lutheran) does not attempt to convey our teachings, why are we bothering and wasting our time and resources? Because we are obviously not witnessing the faith. All we are is being greedy. We are trying to set up a special “private” school, to ocmpete directly against the local public school. In our arrogance we believe we can do better at teaching, TEACHING AT THE OWN GAME. We too often seek to “use” the school to try to get more members – butts in the pew to hopefully gather more offerings so we can buy more programming…. I think this lawsuit exposes a totally wrong approach to having a school. We should be using it for teaching about Jesus, the faith, etc. Otherwise we are copying the world, seeking its approval and not God’s.

  2. @Jason #2
    Jason, I agree with you. I get tired of the argument that because the school is struggling the school should drop the name Lutheran. Oh and then copy exactly what the public schools are doing. If the Lutheran school is doing exactly what the public school is doing why send children to the Lutheran school? OF course the main function of the school is academics, but along the way teachers are also teaching children to be “human beings.” Why oh why would a Lutheran school not teach them to be Christian human beings according to Scripture and Lutheran doctrine?

  3. The abuse of the ministerial role of teachers in many cases is clear. I would apply the same to some who are on the clergy roster. They hold kingdom of the left positions in the church that have nothing to do with the office of pastor, (I will not name them so as not to offend.) yet, we keep them on the clergy roster. I would certainly not want to diminish the role of pastors on the basis of their questionable roles.

    This article begins with the sentence “It was bound to happen. The fiction that teachers are “Commissioned Ministers”, executing a ministerial and religious role (kingdom of the right) instead of a secular (kingdom of the left) has been found out .” That seems very dismissive of those who fill those roles. In some cases that attidude is deserved as the article points out. I have personally seen some of these people who bring this on themselves. On the other hand I have worked with and obseved many teachers who do not deserve a dismissive attitude. I am sure that was not the intention of the article but many will read it that way. I would wish to affirm their role in the church and thank them for the service and sacrifice for the ministry of the church.

    Our church is served by many teachers that assist the pastor in the ministry of the church. They teach the Word of God to the children entrusted to them and they work to “hold up the prophets arms.” There is room for debate from where their mandate flows; from the office of pubic ministry or from the vocation of parent. It may be both.

    As far as the IRS goes it seems that our Lutheran School Teachers should qualify as “ministers” just as Roman Catholic Nuns or Monks do, even more so. That is a kingdom of the left decision. I do not think we should cheer because we want the IRS to right some wrongs we see in the church. We may end up throwing out the baby with the bath water. Many of our faithful teacher struggle financially as it is. If they should loose the tax break and be forced to leave the ministry of our churches the church and ministry will be poorer for it.

  4. The Court finds you must practice what you preach – what a novel concept!

    The thing that concerns me here is that the varying interpretations of the different Circuits makes this case a ripe one for review by the Supreme Court. (Though, from footnote 2 in the concurring opinion, they have opted out of such a review a few times already in the past decade.) If they limit their review to clarifying how the ministerial exception (a standard created entirely by the judiciary and thus open to interpretation and alteration by the judiciary) is applied, all well and good. If the activists on the Supreme Court take this as an opportunity to review (and attempt to overturn) the statutory exceptions, then the judiciary is stepping into the realm of legislating again. I hate when judges legislate from the bench.

    I respectfully disagree with the author of the Blog with regards to the implications for the IRS code. Many schools do properly apply the IRS definition of “ministry” and fall under that statutory exception. The statutory definition of “ministry” and the theological definition of “ministry” are two different things. I find it interesting to note that the four cases cited in the concurring opinion (two where the teacher was found not to be a ministerial employee, two where they were) involve the same two “church” bodies, with one pro and one con case for each. It is not a matter of doctrine, it is a matter of applying the law. It boils down to whether the statutory (not theological) definition of “ministry” is consistently applied – are all teachers in the school held to that standard? If yes, then the qualitative test of whether they are “ministers” applies. If not, the quantitative test applies.

    I am glad that the court does not attempt to apply the quantitative standard to pastors as well, because by the court’s reckoning, most small parish pastors wouldn’t be “ministers” either. How much time do they spend in the secular duties of typing and running bulletins, shoveling snow, putting up tables and chairs, unclogging toilets, clearing ice out of the gutters, and the like?

  5. You can not rescind a call. You can not fire a called church worker. You can remove them for cause. There was no cause here. Let’s review. 1) False Teaching? Nope. 2) Conduct Unbecoming? They didn’t even claim that in the court filing. They simply said they were religious, and so didn’t need to follow the law. 3) Inability or unwillingness to carry out the duties? According to her doctor, no. So what cause had they?"

    “Cause”? Does this apply to Pastors, too?

  6. I hope this lawsuit doesn’t adversely affect the Lutheran school system in the long run. However, I hope it serves as a wake up call. If we are going to call teachers and call them commissioned ministers their duties must be religiously different from a contract teacher. That said I am not a fan of contract teachers in Lutheran Schools. We should be helping children understand core topics in the context of a confessional worldview i.e. is not science a study of 1st article gifts, does not grammar study help us understand what God is communicating to us?

    Also, where is the Pastor? Every church I have served with that has a (pre)school, I led chapel. It was the one time I could guarantee that I could spend with the kids, and I love sharing the Gospel with kids who likely aren’t hearing it at home.

  7. @Dennis Peskey #6
    Absolutely, Dennis. Please do not think that I was complaining about those tasks or saying that they were beneath a pastor or improper for him to do. (The “clear the ice out of gutters” is highlighted in blue because I had attempted (apparently unsuccessfully) to link to a previous post on this site ( describing Matthew Harrison doing just that.)

    Reading the statement of facts in the court’s opinion and the assertions of the concurring opinion, it would appear that the court would not consider such tasks as “ministerial” time. According to the court, “ministerial time” (quantified as total number of minutes on task) must be greater than “non-ministerial time” (quantified as total number of minutes on task) in order to be considered a minister. That these tasks are done to the glory of God and for the sake of neighbor are irrelevant to the courts in the Kingdom of the Left. That is the only point I was trying to make by listing those tasks that pastors of small parishes (like myself) often find ourselves doing.

  8. @PPPadre #10
    Forgive me if I did not construe your examples in the best possible light. In fact, I will readily accuse myself of this guilt, in that I frequently describe my duties as president of our church in taking out the garbage (I would add shoveling the snow but my Pastor all too frequently has already preformed this function).

    Taking out the garbage is neither the chief duty of a president nor is it definitive in terms of office. The task is merely a function which must be accomplished to maintain order in the church. My claim is intended to be instructive, in that these tasks are not limited to a particular member of the congregation (including the Pastor) but should be a shared responsibility for all. Where the Church is imperiled is in the definition of duties (tasks?) subject to an outside court’s understanding. I concur with the Wild Boar’s caution regarding the possible ramifications of quantifying “ministerial” duties. If the court’s findings are such that this particular school is not engaged in “ministerial time” within its instruction, the non-profit status granted by the IRS is equally imperiled. In my (since retired) vocation as a federal government employee, I have witnessed the removal of non-profit status from organizations which could not defend their actions within the framework of their constitutions (the primary determinate for original non-profit qualification).

    If this be the case, the full impact of law descends rapidly upon these organizations in the form of a bill from the government; they want their money and the due date is now. Your cautionary note concerning judicial involvement (“I hate when judges legislate from the bench”) carries a goodly amount of caution. The courts would lend small credance to “simul iustus et peccator” – their sole justification is the mathematics of quantified time. As Lutherans, we should all be acquainted with the dangers of seeking justification through the law.
    Kyrie Eleison

  9. The problem is not that we tried to help our teachers take advantage off a tax break. The problem is that we did it in such a way that we invented a whole new category of sub-pastors that we then necessarily carried over into all other realms of our life together.

  10. For this theological dummy:
    First: Can someone give me the theological (Scriptural/Confessional) rationale for considering teachers (and DCEs et al) as ministers and issuing irrevocable calls as we do to pastors?
    We are currently working through our Bylaw revisions and, as we go through the Article on “Called Workers,” some members of the Committee are asking this question.
    Is it Eph. 4:10-11 (cited in the Treatise, para. 67) and/or somewhere else?
    I find nothing in Synod’s Constitution or Bylaws other than that there ARE Ministers of Religion Ordained and Commissioned. Somewhere in Luther? Walther? Pieper? (Which would have no binding force anyway.)
    Second: I read some time ago that the COP was working on a document to permit rescinding a call for other than the three usual reasons (congregation is unable to support financially, for example.) Anybody have anything on that?
    Ed Weise

  11. Dennis hits on a great point, though a bit off-topic.

    If you want to be a leader in the church, if you want to be respected as an elder, be the one to shovel the walks before the sun comes up. Scrub the toilets twice per week after the janitor has been laid off. Help the sexton mow the lawn. Pick up the cigarette butts on the lawn. Don’t wait until you are asked, just do it. If no one sees you do it or says thank you, your reward will be that much greater.

    Against such things, there is no law.

  12. There is another question lurking in the bushes here concerning called teachers. A call is not a life time promise that the teacher will never be terminated. Normally, yes, but due to falling enrolement in some Lutheran schools there is a case for reducing the staff because of economic reasons. As I recall the Voters’ Assembly has the authority to add and subtract called positions for the congregation as the needs dictate. I don’t think any called position has a claim to continued employment when the congregation can’t aford it. Otherwise, we would have the condition where the entire congregation fails due to the economic stress. I don’t think that is God’s intention for His people.

  13. The Supremes are hearing arguments today on this case. National Review is wondering if this might turn out to be the most significant religious freedom case in years.

    (Sorry I don’t know how to embed a link here, so just cut-and-paste or go to NRO if you are interested.)

    Intersting is also the three amicus briefs filed, including by the CRC and the SBC. You can read them and all the centiori docs at scotusblog:

  14. @Gene White #16
    I don’t think any called position has a claim to continued employment when the congregation can’t afford it.

    Medieval people lived very poorly and built cathedrals that are still a wonder!

    “Can’t afford it” is not one of the three reasons to depose a Called Pastor, though it’s used
    (often by people who “can afford” pretty much what they want to in other areas of their lives).

    The Supreme Court should not be telling churches who is a minister. Agreed.
    We should be using more honest definitions ourselves and pay the additional taxes.

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