Supreme Court To Examine 'Ministerial Exception' Case

By Lauren Markoe
Religion News Service

WASHINGTON (RNS) The Supreme Court on Wednesday (Oct. 5.) will hear one of most important religion cases in decades, centered on the degree to which religious institutions should be exempt from anti-discrimination laws.

The case started at a Lutheran elementary school in Michigan where a teacher claimed she was fired in violation of the Americans With Disabilities Act.

The question before the justices concerns the "ministerial exception," a 40-year-old legal doctrine that protects churches and other religious institutions from government interference in their employment decisions.

Few would dispute that a religious congregation should be unfettered when it chooses to hire or fire clergy. But what about other church employees?

"Advocates for the ministerial exception argue that religious institutions, in their hiring and firing, should be regulated as little as possible," said Ira C. Lupu, a professor at The George Washington University School of Law who specializes in church-state cases.

"On the other side are those concerned that a particular group is cast outside the various protections of civil rights laws."

Cheryl Perich taught secular subjects and religion at Hosanna-Tabor Lutheran School in Redford, Mich., and signed a contract as a "called teacher," charged with advancing the religious doctrines of the congregation that operated the school.

Her dispute with the school, which is now closed, began after she fell ill in 2004, and took several months off to treat a chronic sleep disorder. The congregation hired another teacher to take her place, and asked Perich to resign. Perich, who had permission from her doctor to return to work, threatened to sue and the congregation then voted to fire her.

That employment decision was its prerogative, said attorney Luke Goodrich, of the Becket Fund for Religious Liberty, which is representing the church.

"The purpose of the ministerial exception is to protect the right of religious institutions to choose their religious leaders," he said.

Because Perich was charged with imparting religious doctrine to her students as a "commissioned minister," the ministerial exception applies, he said.

Perich lost her first suit in federal court in 2008, but the Cincinnati-based 6th U.S. Circuit Court of Appeals ruled in her favor last year. Now the Supreme Court will consider the case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

The American Civil Liberties Union, which co-wrote a brief supporting the government's side in the case, hopes the justices will narrowly interpret the ministerial exception.

"While faith communities surely have the right to set religious doctrine and decide which ministers best advance their religious beliefs and practices, they shouldn't get a blank check to discriminate or retaliate against their employees," said Daniel Mach, director of the ACLU's Program on Freedom of Religion and Belief.

Perich should not fall under the ministerial exception, Mach said, because her primary job was as a school teacher, not a minister.

"There's ample evidence in the case that Perich was fired because of her disability and the assertion of her legal rights -- and not for any religious or doctrinal reasons," he said.

One of the toughest questions facing the court, experts say, is whether the government should be allowed to decide which employee duties are "religious," and which are not.

The high court has never ruled on the ministerial exception, and its decision will guide lower courts on whether to weigh more heavily the rights of religious institutions or their employees.

"I'll tell you what makes this case really interesting," said Lupu. "The last time the Supreme Court heard a case about internal church disputes was more than 30 years ago. This makes for a certain amount of unpredictability."

Lupu said he'll be watching the court's three female justices, who he says are not likely to favor a broad interpretation of the ministerial exception because it could adversely affect the many women who teach at religious schools. The church, then, would have to convince five of the six male justices to see the case its way.

"A new and narrow interpretation of the ministerial exception is certainly possible," Lupu added. "That would alter employment relations in virtually every religious institution in the U.S."

Comments

[detroitblkmale30]

09:11 AM on 10/07/2011

Interesting. This case isnt nearly what I would have expected. It will have WIDE reaching implications, but its not a traditional "hiring" rights" case in the typical sense. Obviously the elephant in the room would be their perogative to hire or not those who disagree with them philosophically. This case, unless I'm missing something doesnt fall into that type, but in the end will be related to it. Its possible they draw a distinction between this type of case, based on firing with regard to medical conditions vs. philosophical differences

[iknowscottyknows]

07:40 PM on 10/06/2011

Sorry, libs, you're not going to force a church to hire homosexuals, which seems to be your only stake in this nonsense.

[Balancement]

10:05 PM on 10/05/2011

The irony is monumental. The whole myth of Christianity is built on radical inclusion--yet the believers in this myth wish to use it for exclusion. Why don't they just change the name from "Christianity" to "Hypocrisy" and be done with it?

[iknowscottyknows]

07:39 PM on 10/06/2011

Jesus was all inclusive (anyone can enter heaven) and at the same time all exclusive (but only if you accept him as God).

[owlafaye]

06:23 PM on 10/03/2011

What thrills me is that she and her supporters are spending lots of money.

[TYRANNASAURUS]

06:17 PM on 10/03/2011

centered on the degree to which religious institutions should be exempt from anti-discrimination laws.....

No religious group should EVER BE EXEMPT from the laws of this country for any reason.

[Tracy Kline]

03:00 PM on 10/04/2011

Like the article mentioned, "Few would dispute that a religious congregation should be unfettered when it chooses to hire or fire clergy." I think that's a fine exception from "laws of this country for any reason."

[TYRANNASAURUS]

06:55 PM on 10/04/2011

Religions are for profit as major corporations are.... they are business and they should be taxed according....their profits come in many forms besides money.

[John Taylor 2]

05:24 PM on 10/03/2011

A church (or non-profit) is not a blanket exemption to the laws of the land, nor should it be.

[TYRANNASAURUS]

06:17 PM on 10/03/2011

Rigth John..... for any reason.

[Adam of CA]

03:46 PM on 10/03/2011

It is of urgent necessity for the U.S. Supreme Court to review this conflict between the laws of the country and the laws of an institution.

The first rule of judgment must establish the supremacy of the Rule of Law itself. The Rule of Law applies to an entire country.
The second rule of judgment must establish that an institution of our country is a subset of the Rule of Law. Somewhere in the earlier laws the U.S. Supreme Court lost this focus.

When these two rules of judgment are in place, then the proper decision that an instituion is not above the Rule of Law will be established for its citizens.

[chaotician1]

02:38 PM on 10/03/2011

It is time to give up the silly notion that the religious businesses should have special privileges in a secular nation which laws that are supposed to be eaually applied to everyone no matter their welath, power, or religion. The notion that religion is not first and foremost a business enterprise; hopefully providing some useful service to its customers and not just a racketeering exploiter of people, means it should be fully accountable to all laws. So , while all corporations now consider themselves to be "super" people with the blessings of our corrupted Judges, that shoudl be the limit of corporations no matter their products; no demigods, please!

[seektruefaith]

09:18 AM on 10/03/2011

Very interesting comments posted here. Actually, it is a matter of time that the governments will have control over religions and eventually the religions will be eliminated one by one. It already has begun in many countries and is gradually happening here in the USA we just don't hear of it in the media. Religions are at fault because they co-mingle with politics and don't stay neutral. The only religious organization that does not involve themselves in politics and government are the Jehovah's Witnesses. Believe it or not, they may be the only ones standing after all have fallen because they are neutral.

[Toutlaguerre]

11:15 AM on 10/03/2011

hi seektruefaith, not to speculate much but the more I read these articles the more it seems like things are falling in place for the GT to begin. People are getting more and more angry with religion these days.A few months ago a religious leader was on the television here advising people to engage in premarital intercourse and it caused an outrage. It gave a great opp for a witness.

[seektruefaith]

11:00 AM on 10/04/2011

Yes Toutlaguerre. Some that are opposed to JW may come to change their minds on the 11th hour when they see Jehovah's prophesies realized during the great tribulation that is soon upon us. Every person will come to know that there is a God! But sadly for many their hearts will be hardened & we will be persecuted more than ever. Although it will be a very difficult time, we rejoice for we know that God's new kingdom is close at hand.

As stated in our daily text for Oct. 2nd:
"Keep on blessing those who persecute; be blessing & do not be cursing."
(Rom. 12:14). "We know that our Christian activity will provoke the anger of our enemies, for Jesus warned us: “You will be objects of hatred by all the nations on account of my name.” (Matt. 24:9) Consequently, we are not surprised or discouraged when we meet up with opposition. (1 Pet. 4:12, 13) Rather than feeling animosity toward our persecutors, we try to enlighten them, realizing that some among them may be acting out of ignorance. (2 Cor. 4:4) We endeavor to heed Paul’s counsel as found in today’s text. One way to bless opposers is to pray for them. Jesus said in his Sermon on the Mount: “Continue to love your enemies, to do good to those hating you, to bless those cursing you, to pray for those who are insulting you.” (Luke 6:27, 28) (w09 10/15 2:13, 14)

[saoshyant]

10:51 PM on 10/02/2011

Government should stay out of the affairs of religion only to the extent that religion stays out of the affairs of government.

[MirrorMonkey]

05:55 PM on 10/07/2011

Sorry, but courts have an obligation to follow the Constitution, and not the anti-religious prejudices of secularists. Or have you never read what the First Amendment says?

[Nathaneal Green]

03:42 PM on 10/02/2011

The government must stay out of the interal affairs of religious institutions if it hopes to maintain separation of church and state. Interference by the government in a religion, unwittingly and without warrant entangles the government with religion. This is a step toward the model employed in Italy where the Catholic Church and the government are much more intertwined than here in the U.S. It is better for the governement, in all its branches, to steer clear of religion and not become entangled.

[AZLibDem]

04:49 PM on 10/02/2011

"The government must stay out of the interal affairs of religious institutio­ns if it hopes to maintain separation of church and state"

Only to the extent that they engage in purely religious activity; when they cross into secular activity, they are answerable to the law.

[Nathaneal Green]

10:56 AM on 10/03/2011

AZLibDem,

You raise a key element to the inquiry. For the religious and spiritual, all of life is religious and spiritual. There isn't a line to separate and distinguish. Especially when it comes to deciding whether someone qualifies for and is considered to be a minister of a religion, that is a decision that the religion itself must be allowed to make without interference from governmental bodies and branches. In this case, it is clear the religious body qualified the teacher for and provided special minsiterial benefits to her. The ministerial qualification was not a pretense, but established well before any differences arose. The government should not tell a religion who is or is not a minister of its religion. That is an unjustified entanglement, requiring the government to weigh in of the doctrines of tenets of a religion.

[owlafaye]

12:27 PM on 10/03/2011

But when they cross into secular society's activities shouldn't they be liable for taxes?

I believe the original exemption for taxes shows government favoritism and is unconstitutional.

We might consider exempting the church, the immediate property it sits on and their minister...and NOTHING more?

[ILoveTheUSofA]

07:49 PM on 10/02/2011

Your argument is exactly backwards by 180 degrees.

Separation of church and state properly applied would mean that there would be no "ministerial exception" at all.

The "ministerial exception" is precisely an example of a law showing special favoritism to religion, giving a special exception to religious employers that other employers do not enjoy - a clear violation of the principle of separation of church and state.

[GrantS]

12:06 AM on 10/02/2011

I would prefer the Supreme Court visiting cases of too many churches crossing the line into political activism.

Some nasty fines ought to be dealt out for those indescretions.

[Nathaneal Green]

03:37 PM on 10/02/2011

Political activism by a religion is not an issue in this case.

[graceaustin]

11:17 AM on 10/03/2011

He knows that; however, his remark is valid under the circumstances. Religion is most certainly infiltrating it's dictates into government, and that is far more serious than who they hire.

[chaotician1]

02:45 PM on 10/03/2011

How silly; the Supremes are defacto evidence of religious activism and corruption of our laws! The notion that this court is not religiously bigoted is absurd and contributes to the debasement of law, our Constitution, and the foundations of our Republic!

[iknowscottyknows]

07:42 PM on 10/06/2011

You seem to argue for repression of free speech by anyone of a religious nature, another issue the left puts their hopes on.

[jdnich29]

01:36 PM on 10/01/2011

Here we go again churches thinking they are above the law. but the constitution says if congress passes a law it apply to all citizens. Inother words you can't pass a law just for one group but not another.

[Nathaneal Green]

03:50 PM on 10/02/2011

There is no question that a church can discriminate in hiring a minister. The issue here, is whether the government should be allowed to countermand the decision of a religious body that a person who was hired as a commissioned minister and who accepted the benefits of that religious distinction can be dismissed for causing disruptions within the religious community - because, in the eyes of the Sixth Circuit Court, the person also fielded other non-ministerial duties. In other words, if you are formally approved as a minister, as in this case, and distinctly paid as a minister, as in this case, who gets to decide where those minsterial responsibilities end. In my eyes, it is the church or religiious institution that determines the scope of religious responsibilities and not the government because ministerial responsiblities extend to all aspects of life.

[AZLibDem]

04:34 PM on 10/02/2011

"The issue here, is whether the government should be allowed to counterman­d the decision of a religious body that a person who was hired as a commission­ed minister and who accepted the benefits of that religious distinctio­n can be dismissed for causing disruption­s within the religious community"

The court found that just calling her a minister did not actually make her one:

"Furthermore, the district court in the instant case found that the primary duties
of called teachers are identical to those of contract teachers, who do not have the title of
minister, and at least one contract teacher who taught at the school was not Lutheran.
Given the undisputed evidence that all teachers at Hosanna-Tabor were assigned the
same duties, a finding that Perich is a “ministerial” employee would compel the
conclusion that all teachers at the school–called, contract, Lutheran, and non-
Lutheran–are similarly excluded from coverage under the ADA and other federal fair
employment laws. However, the intent of the ministerial exception is to allow religious
organizations to prefer members of their own religion and adhere to their own religious
interpretations. Thus, applying the exception to non-members of the religion and those
whose primary function is not religious in nature would be both illogical and contrary
to the intention behind the exception."

[MirrorMonkey]

06:00 PM on 10/07/2011

What the Constitution says is that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Or are you trying to argue that Congress can pass a law requiring a Greek Orthodox church to hire a woman priest, or a convent of Benedictine nuns to admit male applicants, or a Baptist congregation to employ a Muslim, or a Hindu, or an atheist as its minister, all in the name of advancing non-discrimination laws that forbid descrimination in hiring based on sex or religion?

[AZLibDem]

11:52 AM on 10/01/2011

Ignoring for the moment whether it was legal or not, does anyone else find it hypocritical that a "Christian" church would fire someone who had gotten sick?

[quixmar]

12:49 PM on 10/01/2011

Depending on the number of employees they have, they might just win on that legality alone. The ADA does not apply to "companies" with less than 50 employees. If you read the story, she was asked to resign, and was fired for threatening to sue. I've been fired from better jobs.

As for you hypocracy charge, isn't it just as hypocritical that the government is interfering with a religious institution? (Let me use the Liberal argument here, only in reverse) What about the separation of church and state?

[AZLibDem]

01:16 PM on 10/01/2011

Embedded in the question is whether "free exercise" can apply to hiring practices. The government has become involved because the woman brought suit; as to whether there is merit, they will decide that.

What is more, pointing at the other side is not a refutation, but a tu quoque fallacy, and is completely beside the point. At best, you seem to be arguing that the church need act no better than the government.

The church, on the other hand, turned it's back on a woman, and sought to terminate her employment because she was too ill to work for a period of time. Seems like a good WWJD situation.

[DG55]

04:00 PM on 10/05/2011

>>Let me use the Liberal argument here, only in reverse

See, I'm a liberal, and I agree with you, so I guess your point is not a "reverse" of the "Liberal argument." However, you do not really address AZLibDem's charge. A church founded at least in part on tenets of "Love thy neighbor," "Love your enemies," "Feed my sheep," Heal the sick, Feed the poor ... could certainly have found a more ... uh ... Christian way of handling this personnel matter than asking her to resign because she was ill and then firing her. Given that we agree that the State really has no business in it, I'm still hoping to understand the apparent hypocrisy of this self-professed Christian organization.

[Nathaneal Green]

03:35 PM on 10/02/2011

As usual, the news report is slanted and unreliable. If you read the decision of the Sixth Circuit Court of Appeals it is clear that she was released from her ministerial commission for insubordination and disruptive behavior and not illness. Certainly, a religious institution must have latitude to determine for itself, without governmental interference, when conduct is insubordinate and disruptive to the spiritual well-being of the religious community. Without question, the teacher accepted both the post and the financial benefits of the ministerial commission.

[AZLibDem]

04:27 PM on 10/02/2011

No, the Sixth circuit clearly found that she had no "ministeria­l commission" whatsoever.

Read the ruling again; the record shows that Perich clearly followed the rules in the handbook, yet they tried to get her to resign. She refused, they pressured her, finally threatened legal action, which they characterized as "disruptive behavior." So, her "insubordination" consisted of refusing to resign, and asserting her rights under the ADA.

The Sixth Circuit didn't buy it, and the Supreme Court probably won't either, as the Sixth Circuit clearly explained that the the ministerial exception did not apply as Perich was clearly not in a ministerial position.

http://www.ca6.uscourts.gov/opinions.pdf/10a0065p-06.pdf

[jtabs]

11:05 AM on 10/01/2011

A "narrow minded decision" by this court, come on it's a given.