March 2012 Church & State | Featured

Cheryl Perich was on a golf outing with some friends in June of 2004 when she had an asthma attack – or so she thought.

At the hospital, a physician diagnosed her problem as narcolepsy, a condition that causes sufferers to unpredictably fall into deep sleeps, from which they usually cannot be roused. The doctor recommended that she stop working during treatment.

Perich, who taught at a private school run by Hosanna-Tabor Evangelical Lutheran Church in Redford, Mich., was granted leave. About seven months later, having undergone successful treatment for the condition, Perich tried to return to work. Leaders of the Missouri Synod congregation told her not to bother. She had been replaced, and the school did not want her back. Perich believed that she was being discriminated against based on her medical condition and consulted with an attorney; in response, the congregation stuck by the termination, citing her decision to consult with an attorney and contemplate legal action against the school.

Claiming that she was retaliated against for exercising her rights under the Americans with Disabilities Act, Perich sued. In just about any other employment context, she would have had a strong case. Federal law bars discrimination against people on the basis of race, sex, religion, national origin or disability.

But in Perich’s case, there was an important wrinkle: Many Lutheran churches allow instructors to seek a special designation known as a “called teacher.” Such teachers may instruct in secular subjects but also have specific religious duties and are responsible for imparting faith and doctrine to their charges.

Perich had sought this designation. She had to earn it through six years of study. Thus, she was technically a minister, officials at her school argued. Perich disagreed with this designation, asserting that she spent most of her time teaching secular subjects.

The matter reached the U.S. Supreme Court, which sided with the school and found that Perich fell under the definition of “minister.” And that made the difference. Although secular employers are barred from engaging in various forms of discrimination, religious organizations, thanks to court rulings, have been granted an out from these laws under a policy known as the “ministerial exception.”

The ministerial exception isn’t explicitly found in the Constitution. It was crafted by judges about 40 years ago, and its constitutionality had not previously been tested before the nation’s highest court.

The Supreme Court’s decision to hear Perich’s case, therefore, was significant. And the ruling that resulted from it, a unanimous decision against Perich that upheld the ministerial exception, may eventually have wide-spread ramifications. Legal observers say it appears to be the first step in what might turn out to be a lengthy process as the court examines hiring and firing in religious settings.

In its Jan. 11 ruling, the high court held that when ministerial employees are involved, courts may not interfere in a house of worship’s decisions about who to hire and fire – even if a firing was motivated by issues that had nothing to do with religion.

“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Chief Justice John G. Roberts wrote for the court. “But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.”

Continued Roberts, “The First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.”

But critics of the decision say the court went too far. Americans United for Separation of Church and State filed a friend-of-the-court brief in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission supporting the right of houses of worship to hire and fire clergy on the grounds of theology but arguing that this right should not extend to bias unrelated to religious belief. The Court, however, rejected that argument, ruling instead that “[t]he purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason.”

“Blatant discrimination is a social evil we have worked hard to eradicate in the United States,” said Barry W. Lynn, Americans United executive director. “I’m afraid the court’s ruling today will make it harder to combat.”

Lynn said he is concerned that the ruling could grant houses of worship the right to fire ministers for reasons completely unrelated to religion. An assistant pastor who objected to being sexually harassed by her superior, for example, could be fired for raising that issue and have no recourse in the courts.

“Clergy who are fired for reasons unrelated to matters of theology – no matter how capricious or venal those reasons may be – have just had the courthouse door slammed in their faces,” Lynn said.

Although unanimous, the ruling left several questions unanswered. For example, who exactly qualifies as a minister? In Perich’s case, the high court cited her religious duties and declared that they meant she qualified as clergy.

Also, can a house of worship or ministry declare all of its employees ministers, including secretaries, janitors and others who perform no overt religious duties? Does the ruling mean that all religious groups now have a blanket right to hire and fire employees at will? What about employees in taxpayer-funded slots in “faith-based” initiatives?

Most legal observers say these questions can’t be answered right now due to the narrow nature of the analysis on this question.

“We agree that the First Amendment permits religious bodies to hire and fire ministerial employees consistent with their religious beliefs,” said Gregory M. Lipper, AU senior litigation counsel. “But in granting religious bodies a constitutional right to discriminate for reasons unrelated to religion, the court went too far – preventing the application of important civil-rights laws without any benefit to actual religious liberty.”

Added Lipper, “The court’s decision will likely leave ministerial employees without any legal redress even if they are fired for consulting with a lawyer about workplace sexual harassment or reporting child abuse to the police.”

In a concurring opinion, Justice Clarence Thomas wrote that he would go beyond the ruling and “defer to a religious organization’s good-faith understanding of who qualifies as a minister.”

Justices Samuel A. Alito and Elena Kagan also joined forces to pen a concurrence that attempted to flesh out the meaning of “minister.” But Alito and Kagan mainly wanted to point out that many religions, such as Catholicism, Judaism, Islam, Hinduism and others, don’t use that term for their clergy.

The two justices urged courts to look at the specific duties employees perform at houses of worship and opined that the exception should apply to any person “who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.”

Most justices clearly had no interest in delving into these sticky issues – virtually assuring that there will be more litigation in this area because some religious groups seem eager to adopt an expansive definition of “minister.”

Rita Schwartz, president of a Philadelphia-based group called the National Association of Catholic School Teachers, told the Associated Press that a few years ago she came to the aid of maintenance workers in a church school who were declared ministers because “they polished the pews in the chapels and they repaired the crucifixes on the walls.”

In his opinion, Roberts observed that the ruling is limited to the facts of the case and conceded that more litigation is all but inevitable.

“The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church’s decision to fire her,” the chief justice wrote. “Today we hold only that the ministe¬rial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tor¬tious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise.”

The high court’s decision was popular among many religious groups and was lauded by several organizations from different points on the political spectrum.

The Family Research Council praised the ruling and used it as an opportunity to attack President Barack Obama, noting that the U.S. Justice Department had filed a brief in the case arguing that the ministerial exception is not found in the Constitution.

“We are pleased that the Supreme Court rejected the Obama administration’s profoundly troubling claim of power over churches, and glad to see that the Supreme Court has stayed out of the Lutheran Church’s affairs and allowed its internal rules as a body of believers to stand,” said Ken Klukowski, director of the FRC’s Center for Religious Liberty, in a press statement.

Bishop William E. Lori of Bridgeport, Conn., chair of the U.S. Conference of Catholic Bishops’ new lobbying arm, the Ad Hoc Committee for Religious Liberty, called Jan. 11 “a great day for the First Amendment.”

Lori said the ruling preserves “the historical and constitutional importance of keeping internal church affairs off limits to the government – because whoever chooses the minister chooses the message.”

But not all religious groups supported the decision. AU’s brief arguing against a broad interpretation of the ministerial exception was joined by the National Council of Jewish Women, the Sikh Council on Religion and Education and the Unitarian Universalist Association. (The American Civil Liberties Union Foundation and the ACLU of Michigan also signed on.)

Secularist groups were also displeased.

“The Supreme Court has agreed to approve systematic religious discrimination with today’s ruling,” said Roy Speckhardt, executive director of the American Humanist Association. “The ruling overlooks the essential concept that no one should be allowed to circumvent the law.”

One of the more interesting comments came from Ronald A. Lindsey, president and CEO of the Center for Inquiry, a humanist group in Amherst, N.Y. In an online column, Lindsey noted that the legal tussle back-handedly debunks the Religious Right’s often-heard charge that the Constitution is a rigid document that shouldn’t adapt to the times.

“The Court was confronting a novel question, which the Founders presumably did not anticipate given the absence of employment discrimination laws in 1789,” wrote Lindsey. He added that the controversy “is another illustration of why the doctrine of ‘original intent’ is pure intellectual rubbish….”

AU’s Lynn said the organization is concerned about possible wider applications of the Hosanna-Tabor ruling. In recent years, Americans United has worked to combat employment bias in publicly funded “faith-based” programs. These services are run by religious groups but are funded by the taxpayer. Yet in some cases, religious groups have claimed the right to hire and fire people according to the doctrines of the church – even though they’re getting public funding.

Under rules promulgated by the George W. Bush administration, religious groups have the right to engage in this type of discrimination in tax-supported faith-based programs. As a candidate, President Barack Obama vowed to change these rules but once in office shifted positions. Obama now says employment bias in faith-based programs is being examined on a case-by-case basis, but there’s no evidence that federal agencies are actually doing this.

Polls show that most Americans oppose employment bias in tax-funded programs, and a few cases have come to light of people being fired from religious social service providers because they were the “wrong” religion – even though the programs in question were funded at least in part with tax money.

Many observers believe this matter will eventually end up in the courts. When it does, advocates on both sides of the issue will undoubtedly comb the Hosanna-Tabor decision looking for language to boost their legal argument.

The irony is that both sides may find language they can use. The decision is simply too narrow and leaves too many questions unanswered to provide much guidance on the issue of employment bias in tax-supported faith-based programs.

Lynn said AU will keep a close eye on developments.

“Legal scholars are debating the scope of this new ruling, but the truth is we won’t know much more until another case reaches the Supreme Court,” Lynn said.