October 2011 Church & State | Featured

The allegations the Rev. Derrick Gomez brought against the North Carolina Synod of the Evangelical Lutheran Church in America in 2008 were shocking.

Gomez, who is African American, asserted that during a three-year stint as the church’s mission director, he was shunned from staff meetings, forced to work in a supply closet and subjected to various racial epithets. He said the atmosphere got so bad he resigned.

Church officials vigorously denied the charges. As often happens in cases like this, the matter went to court. Under normal circumstances, lawyers for both sides would have presented evidence, summoned witnesses and put their best case before a judge, pressing for a favorable judgment.

But that didn’t happen. Because Gomez sued a religious entity, the lawsuit never got out of the starting gate. A court ruled that the church is exempt from federal laws that protect Americans from race-based discrimination while on the job.

This principle, known as the “ministerial exception,” isn’t explicitly found in the First Amendment, which in part bars laws prohibiting “the free exercise” of religion. Rather, it was adopted by a federal appeals court in a 1972 case and has since been endorsed by several others, although courts disagree on its scope.

Earlier this year, the U.S. Supreme Court announced it will hear a case dealing with the exception. The dispute stems from a grievance filed by Cheryl Perich, a Michigan woman who says she lost her job at the Hosanna-Tabor Evangelical Lutheran Church and School after being diagnosed with narcolepsy – even though a doctor had given her medication that controlled the condition.

When the church school in Redford, Mich., refused to rehire Perich after she took a leave of absence to get medical treatment, she filed a complaint with the Equal Employment Opportunity Commission (EEOC), asserting that school authorities had violated the Americans with Disabilities Act (ADA).

The EEOC took up her case, and the 6th U.S. Circuit Court of Appeals ruled in Perich’s favor, saying that even though she had been chosen by the Lutheran Church-Missouri Synod congregation to teach and did occasionally engage in religious activities such as leading prayers, she spent most of her time instructing in secular subjects using secular textbooks. Thus, the court said, the ministerial exception did not apply to her.

Although it may seem to deal with an esoteric area of law, the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission case is being closely watched because the court’s decision could have a wide reach. In the modern era, many houses of worship do more than hold weekend services. Religious groups operate colleges, hospitals, radio and television networks, social service programs and even retail establishments that employ many people.

The assumption that many, if not most, church employees – from the pastor on down to a clerk in a church-run thrift shop – are operating in a ministerial capacity has enabled churches to skirt civil rights laws, and some legal observers say the ministerial exception has been taken too far.

Was the exception ever intended to cover this many people? Probably not. The 1964 Civil Rights Act, landmark legislation designed to prevent discrimination on the basis of race, color, religion, sex or national origin, does contain language stating that houses of worship do not have to abide by all of its provisions.

Title VII of the act exempts any “religious corporation, association, educational institution, or society” when it comes to hiring individuals carrying out religious work. The ministerial exception, by contrast, is a court-crafted rule that has been interpreted to cover any form of discrimination, religious or otherwise.

Although this broader ministerial exception applies only to employees deemed to serve in a ministerial capacity, some courts have defined the term “minister” quite broadly as well. The result is that an increasing number of church employees are falling under the exception and are subject to various forms of discrimination, even types not related to religion.

There is broad agreement that houses of worship have the right to hire only clergy who meet their theological requirements. A Roman Catholic diocese, for example, can’t be compelled to hire a woman priest, and a Baptist church that opposes divorce can fire a minister who gets one. Beyond that, the consensus begins to break down.

Some of the examples of discrimination have been pretty shocking. Madeline Weishunh, a Lansing, Mich., Catholic school teacher, was fired after she reported a student’s allegation of sexual abuse to the police. In Peoria, Ill., an organist at a Catholic church was fired and replaced by a younger man. In Tennessee, a woman was unable to sue a religious college that fired her – despite her string of positive job-performance reviews – for joining a church that supports gay rights. In Toledo, Ohio, a woman studying to become a nun was tossed out of her order after she was diagnosed with breast cancer, a move that ended her health insurance. In some cases, women who have alleged sexual harassment at religious institutions have been unable to sue.

Even Religious Right powerhouses have claimed the exception. In the 1990s, Gil Alexander-Moegerle, one of the founders of Focus on the Family (FOF), sued the organization after he was forced out following his divorce. A California judge dismissed the suit, holding that FOF is a religious organization and the courts could not “be invoked to resolve clearly ecclesiastical differences….”

Outside the context of religious organizations, all these cases would have been ripe for litigation since they involve allegations of discrimination or harassment in the workplace. And now some critics are saying that the time has come to ensure that religious organizations no longer have the right to fire people for capricious reasons.

Yet many advocates of church-state separation also maintain that houses of worship clearly have the right to hire and fire ministers and those who work in a purely theological capacity at will. Anything else smacks of government interference in private religious affairs.

How are these competing rights to be balanced? In August, Americans United filed a friend-of-the-court brief in the Hosanna-Tabor case arguing for a reasonable middle course. In the brief, AU argues that houses of worship and religious entities should be permitted to discriminate only when such discrimination arises from their religious beliefs. (The AU brief was joined by the American Civil Liberties Union, the ACLU of Michigan, the National Council of Jewish Women, the Sikh Council on Religion and Education and the Unitarian Universalist Association.)

In other words, a church could, for example, legally refuse to hire women if it maintains doctrines and theological beliefs that women are not fit for the pulpit.

To buttress the argument, the brief points to several real-life examples of mostly small religious groups with some admittedly unusual doctrines. A Wiccan group called the Circle of Aradia, for example, does not believe in teaching its doctrines to men and thus does not have to hire them as clergy. A group called the Moorish Science Temple of America does not allow people of European heritage to join and would not have to hire them in any capacity.

Under this standard, a Catholic church would not have to hire women as priests, but a church that fired a female choir director simply because its music director held a bias against women would be open to a sex-discrimination lawsuit.

AU’s brief reiterates that courts have no business meddling in controversies over religious doctrine but asserts that the ministerial exception has been taken too far.

“The ministerial exception is designed to allow religious bodies to practice their religion and convey their message without government interference,” asserts the brief. “But the exception thwarts society’s interest in ending discrimination – without serving the exception’s purpose – when applied to shield a religious entity from liability for discrimination or retaliation that is unrelated to religious ideology. As a result, in applying the ministerial exception, courts can and should use their considerable experience in determining whether sincere religious views animated a litigant’s conduct.”

Continues the brief, “[A]lthough the ministerial exception serves important religious liberty interests, it should be applied no more broadly than necessary to address the constitutional concerns that underlie it.”

Elsewhere the brief asserts, “[C]ourts have extended the exception far beyond what is required by the [Constitution]. They have converted the ministerial exception into a shield for all forms of discrimination and retaliation, regardless of motivation. And they have prevented judicial redress of even the most flagrant racial or sexual harassment, even when motivated by naked animus unrelated to any religious belief.” (AU’s brief was drafted by Americans United Litigation Counsel Gregory M. Lipper and Madison Fellow Robert Shapiro in consultation with AU Legal Director Ayesha Khan.)

“The brief carefully balances the rights of religious groups to manage their own affairs and the rights of employees to be free from unlawful forms of discrimination,” Lipper said. “We considered this issue at length and concluded that this position most faithfully reflected our mission of protecting religious liberty while maintaining the separation of church and state.”

Hosanna-Tabor is being represented by the Becket Fund, a conservative Catholic-oriented legal group. Due to the facts of the case – and because most churches have a vested interest in staving off as much litigation as possible – some unusual alignments are occurring. A number of religious groups are siding with Hosanna-Tabor, including several denominations that don’t normally line up with conservatives on church-state issues.

A host of Religious Right organizations have also filed briefs in the hopes of winning a broad interpretation of the ministerial exception from the nation’s highest court. In a press statement, Jay Sekulow of TV preacher Pat Robertson’s American Center for Law and Justice asserted, “Government clearly has no business choosing priests, rabbis, or ministers. Nor should government agents be ordering church schools to hire or retain teachers the school does not want.”

The Obama administration, however, has taken the opposite point of view. In its brief, the U.S. Department of Justice advocates jettisoning the ministerial exception entirely. DOJ lawyers assert that if the high court does not want to go that far, it should interpret the exception to apply only to employees who perform “exclusively religious functions.”

The Justice Department brief maintains that rather than adopt a bright-line rule like the ministerial exception, “The Constitutional issues that can arise in litigation between religious entities and their employees are best resolved on a case-by-case basis.”

In its brief, the Justice Department notes that the ADA specifically protects employees who are fired in retaliation for opposing discrimination in workplaces. Department attorneys note that the law already contains two provisions protecting the interests of religious groups. It allows them to give preference to coreligionists when hiring for positions that involve religious work and it permits them to require job applicants to conform to the group’s religious tenets.

Adding a sweeping ministerial exception to this will gut this provision of the law as it applied to religious organizations, Justice Department lawyers argue.

“The ADA expressly prohibits retaliation against employees who report or complain about discrimination in the workplace,” the brief states. “The text and history of the statute make clear that Congress intended the prohibition against retaliation to apply to religious entities in the same manner that it applies to other, non-religious employers.”

The Obama administration’s stand on the case has infuriated some conservatives. Blogging on the website of the National Review, writer Ed Whelan called the Justice Department’s stance an “aggressive position against religious liberty” and hinted darkly that Aaron Schuham, former legislative director at Americans United who now works at the department, may have had something to do with it.

(The outraged conservatives, however, overlook the fact that the administration is often favorable to the interests of religious groups. Obama has refused to ban employment discrimination in tax-funded “faith-based” programs, and the Justice Department supported an Arizona tax-credit scheme that primarily benefits religious schools.)

Other conservative groups have asserted that allowing courts to hear these cases will result in rulings requiring houses of worship to reinstate fired clergy and lead to government meddling in private religious affairs.

The AU brief responds to this claim. It notes that courts have ruled in other contexts that if reinstatement is deemed inappropriate, other remedies exist. Cash settlements are an obvious example. As a practical matter, many people who file cases like this don’t seek reinstatement to an old job; they merely want a payment to make up for lost wages or to compensate for emotional distress. (In Perich’s case, reinstatement isn’t even an option. The school where she worked has since closed.)

The case will be argued before the high court this month with a decision due next year.

Barry W. Lynn, executive director of Americans United, said the Supreme Court should use the case to make it clear that the ministerial exception is not an unrestricted license to discriminate.

“Discrimination on the basis of race, sex, disability and other features is offensive to American values,” Lynn said. “Religious groups should have the leeway to choose key staff according to religious criteria, but employees should be protected from discrimination that isn’t motivated by the groups’ religious beliefs.”