Supreme Court Upholds "Ministerial Exception" in Employment-bias Laws

By Adam Liptak
The Denver Post
January 11, 2012

http://www.denverpost.com/recommended/ci_19724882

In what may be its most significant religious-liberty decision in two decades, the Supreme Court on Wednesday for the first time recognized a "ministerial exception" to employment-discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

"The interest of society in the enforcement of employment-discrimination statutes is undoubtedly important," Chief Justice John Roberts Jr. wrote in a decision that was surprising in both its sweep and unanimity. "But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."

The 9-0 decision gave only limited guidance about how courts should decide who counts as a minister, saying the court was "reluctant to adopt a rigid formula."

Whatever its precise scope, the ruling will have concrete consequences for countless people employed by religious groups to perform religious work. In addition to ministers, priests, rabbis and other religious leaders, the decision appears to encompass, for instance, those teachers in religious schools with formal religious training who are charged with instructing students about religious matters.

Douglas Laycock?, a law professor at the University of Virginia? who argued the case on behalf of a Michigan school, said the upshot of the ruling was likely to be that "substantial religious instruction is going to be enough" to meet the ministerial exception.

Asked about professors at Catholic universities such as Notre Dame, Laycock said: "If he teaches theology, he's covered. If he teaches English or physics or some clearly secular subjects, he is clearly not covered."

The case, Hosanna-Tabor Church vs. Equal Employment Opportunity Commission, was brought by Cheryl Perich, who had been a teacher at a school in Redford, Mich., that was part of the Lutheran Church-Missouri Synod, the second-largest Lutheran denomination in the U.S. Perich said she was fired for pursuing an employment-discrimination claim based on her disability, narcolepsy.

Perich had taught mostly secular subjects but also taught religion classes and attended chapel with her class.

"It is true that her religious duties consumed only 45 minutes of each workday," Roberts wrote. "The issue before us, however, is not one that can be resolved with a stopwatch."

Instead, the court looked to several factors. Perich was a "called" teacher who had completed religious training and whom the school considered a minister. She was fired, the school said, for violating religious doctrine by pursuing litigation rather than trying to resolve her dispute within the church.

The Rev. Barry Lynn, executive director of Americans United for Separation of Church and State, said Wednesday's decision could have pernicious consequences, for instance, barring suits from pastors who are sexually harassed.

"Blatant discrimination is a social evil we have worked hard to eradicate in the United States," he said in a statement. "I'm afraid the court's ruling today will make it harder to combat."

Bishop William Lori, chairman of the U.S. Conference of Catholic Bishops' ad hoc committee for religious liberty, called the ruling "a great day for the First Amendment."

"This decision," he said in a statement, "makes resoundingly clear the historical and constitutional importance of keeping internal church affairs off limits to the government — because whoever chooses the minister chooses the message."

Roberts devoted several pages of his opinion to a history of religious freedom in Britain and the United States, concluding that an animating principle behind the First Amendment's religious-liberty clauses was to prohibit government interference in the internal affairs of religious groups generally and in their selection of their leaders in particular.

The decision was a major victory for a broad swath of national religious denominations who warned the case was a threat to their First Amendment rights and their autonomy to decide whom to hire and fire. Some religious leaders had said they considered it the most important religious-freedom case to go to the Supreme Court in decades.

The Obama administration had told the justices their analysis of Perich's case should be essentially the same, whether she had been employed by a church, a labor union, a social club or any other group with free-association rights under the First Amendment.

"That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations," Roberts wrote.

When the case was argued in October, some justices expressed concern that a sweeping ruling would protect religious groups from lawsuits by workers who said they were retaliated against for, say, reporting sexual abuse.

Roberts wrote that Wednesday's decision left the possibility of criminal prosecution and other protections in place: "There will be time enough to address the applicability of the exception to other circumstances, if and when they arise," he said.

Other action in courts

• The Supreme Court on Wednesday refused to put new legal limits on the use of questionable witness testimony at trials, ruling that juries must weigh the evidence and decide what is true. The 8-1 decision came as a disappointment to some criminal-law experts who say false identification by witnesses is a leading cause of wrongful convictions.

• Supreme Court justices Wednesday also wrestled with how the federal Family and Medical Leave Act applies to state government workers. A Maryland man says he was wrongly fired for trying to take a 10-day medical leave to deal with hypertension and diabetes and then was barred from suing state officials for damages. The 1993 federal act provided workers the right to unpaid medical leave, but Maryland and the fired worker disagree about the penalty for violations.

• The Episcopal Church should be restored as the owner of seven churches in Virginia, a judge has ruled, years after the denomination was essentially evicted by local congregations dismayed with Episcopal leadership's liberal theology. In a 113-page ruling issued Tuesday night, Fairfax County Circuit Court Judge Randy Bellows reversed a ruling he made in 2008 giving custody to the conservative congregations. The Virginia Supreme Court? overturned that ruling and ordered a new trial.