10/05/2011 04:26 pm ET Updated Dec 06, 2017

Supreme Court Asked To Exempt Churches From Employee Discrimination Lawsuits

WASHINGTON -- The Supreme Court dipped its toes in holy waters Wednesday morning, but only a minority of the justices appeared ready to fully immerse the federal government in determining when an employee can sue religious organizations for civil rights violations.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Court is considering for the first time the scope of the "ministerial exception" -- a doctrine developed by the lower courts over the past 40 years. Under the ministerial exception, the federal courts decline to hear certain discrimination lawsuits brought by employees of religious organizations. The exception is meant to preserve the First Amendment wall between church and state.

In 2000, Hosanna-Tabor, a Lutheran grade school in Michigan, made Cheryl Perich a "commissioned minister" so that she could be promoted from a year-to-year contract employee to a "called" teacher deemed religiously fit for a permanent position at the school. As a called teacher, Perich taught a variety of secular subjects as well as a religion class. In 2004, she went on disability leave for what was soon diagnosed as narcolepsy. Per its policy, the school asked her to resign once her absence exceeded six months, but she refused. Rather than submit to the school's request that her complaint be handled within the Lutheran church's own adjudicative process, Perich threatened to file suit with the EEOC under the Americans with Disabilities Act. In response, the Hosanna-Tabor congregation rescinded Perich's "call," which drove her to follow through on her threat to file with the EEOC.

On Wednesday morning, Douglas Laycock, a law professor at the University of Virginia who represented Hosanna-Tabor before the Supreme Court, began by proclaiming that "the churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church."

Justice Sonia Sotomayor didn't buy Laycock's aphorism. "We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children. Regardless of whether it's a religious belief or not, doesn't society have a right at some point to say certain conduct is unacceptable," asked Sotomayor. "And once we say that's unacceptable, can and why shouldn't we protect the people who are doing what the law requires [by] reporting it?"

Turning from hypotheticals to the facts of the case, Justice Anthony Kennedy, who is known for his robust view of the courts' role, expressed astonishment that Perich "was fired for simply asking for a hearing." And Laycock's response -- that Perich could get a hearing from the church for her claims against the church -- hardly heartened Kennedy. "You're asking for an exemption so that these issues can't even be tried," said the justice.

Despite these challenges to Laycock's argument, Hosanna-Tabor did not have a bad day in the high court.

The specific question in Perich's case is whether an exception originally focused on relations between religious organizations and their clergy and similar workers also applies to employees with major secular responsibilities. If federal courts weighed issues of employment discrimination or retaliation such as Perich's, judges would have to figure out who qualifies as a minister, and whether the religious organization's action was based on its religion's tenets or was motivated by some prohibited reason such as the employee's gender or disability.

Throughout the hour of oral argument, Justices Samuel Alito and Stephen Breyer led their colleagues in suggesting that the courts would face a fiery baptism if they tried to wade into such competing claims of religious autonomy and individual rights.

According to Alito, to determine whether Hosanna-Tabor's internal conflict resolution process was a central tenet of Lutheranism entitled to a court's deference, a judge would have to ask, "What did Martin Luther actually say about suing the church?" As opposed to last year's violent video games case, when he mocked originalism by saying, "What Justice Scalia wants to know is what James Madison thought about violent video games," this morning Alito was quite serious.

Indeed, the prospect of a judge deciding for a church which of its tenets was worth respecting daunted not only Alito, but also Chief Justice John Roberts and Justices Antonin Scalia and Elena Kagan. The latter two regarded the idea as "extraordinary" and "amazing," respectively.

Questioning Assistant Solicitor General Leondra Kruger, who argued for the EEOC, Justice Breyer tried in vain to find a way for Perich and others like her to have their day in court, but just couldn't "see how you avoid getting into religion to some degree."

"This is tough, and I'm stuck," Breyer said.

Tempted by wrongs that in other instances call out for a judicial remedy, Breyer's abnegation before the First Amendment's protection of religious freedom was something almost priestly.

The paradigmatic ministerial exception for the Roman Catholic Church against sexual discrimination lawsuits brought by would-be female priests loomed large during oral argument. Scalia, Breyer, Alito and Roberts all took turns pressing Kruger and Perich's lawyer, former Acting Solicitor General Walter Dellinger, on why a Lutheran tenet commanding internal dispute resolution did not deserve the same respect as Catholicism's male-only priesthood. The lawyers could not answer to the justices' satisfaction.

During Laycock's argument, Justice Ruth Bader Ginsburg did have a hard time finding consistency in Hosanna-Tabor's policy on employee complaints. In his written briefs, Laycock had said that an employee could bring some suits, such as a complaint about unsafe working conditions, against Hosanna-Tabor without running into the ministerial exception. "I don't follow why" such a claim "would not fall under the same ban on keeping disputes in-house?" said Ginsburg.

According to Court-watchers, Ginsburg's stated concern about inconsistency could be extended to those of her colleagues who on Wednesday held fast to the high wall between church and state, but who rarely find a cross, crèche, Ten Commandments plaque or prayer inappropriate for display in state institutions.

A decision in Hosanna-Tabor v. EEOC is expected by the end of the term in June.

Earlier on the Huffington Post: