Justices Rule Ministers Exempt from Anti-bias Laws

NRP
January 11, 2012

http://www.npr.org/2012/01/11/145055102/high-court-upholds-church-state-separation

[with audio]

[Supreme Court decision via BishopAccountability.org]

The U.S. Supreme Court for the first time has declared that the Constitution exempts ministers from the nation's anti-discrimination laws. Wednesday's decision was unanimous and groundbreaking — but it left unresolved some of the thorniest questions in determining who is a minister and who is not.

The court's ruling came in the case of Cheryl Perich, a teacher at the Hosanna-Tabor Lutheran Church and School in Michigan. In 2004, Perich took leave when she was diagnosed with narcolepsy. But when her doctor certified her to return to work, the school asked her to resign, so she threatened to sue under the Americans with Disabilities Act.

"Their response was to fire me," Perich said. "I can't fathom how the Constitution would be interpreted in such a way as to deny me my civil rights as an elementary school teacher."

The school did not dispute that it fired Perich because of her threat to sue, but it maintained that part of its faith requires that such disputes be resolved only internally within the church.

On Wednesday, the Supreme Court sided with the church, saying its actions were protected by the First Amendment's freedom of religion guarantee.

Writing for the court, Chief Justice John Roberts noted that since the passage of the Civil Rights Act nearly a half-century ago, the lower courts have always carved out an exception that allows ministers to be hired and fired without regard to civil rights laws. Now the Supreme Court has agreed, making that position the law of the land. But on the more difficult question of determining who is and is not a minister, the court was equivocal, saying that would have to be determined on a case-by-case basis.

The court, however, used Perich's case to show how to weigh the relevant factors. It agreed that even though the bulk of Perich's time was spent teaching secular classes like math and science, she still qualified as a minister. The court noted that Perich led her students in prayer each day, escorted her students to chapel, taught a religious class four times a week and was what the church designated as a "called teacher," as opposed to a contract teacher. While contract teachers had the same duties, the court said, to qualify for tenure, Perich completed an ecclesiastical course of study at a Lutheran college, and after passing an oral exam, she was issued a ministerial commission.

None of these factors alone would be determinative, the court said, but taken together, they were.

Chief Justice Roberts acknowledged both the interest of society in enforcing anti-discrimination laws and the interest of religious groups in "choosing who will preach their beliefs, teach their faith and carry out their mission." The Constitution, he said, strikes the balance in Perich's case by requiring that the church be free to choose those who will guide its way.

Justice Clarence Thomas filed a concurring opinion saying that the Roberts opinion was too limited for his taste. He would defer in all cases to the church's judgment as to who is a minister. Justices Samuel Alito and Elena Kagan also filed a concurring opinion, saying that since not all religions embrace the notion of ordination, it "would be a mistake if the term 'minister' or the concept of ordination were viewed as central."

The Roberts opinion for the court, however, did seem to make much of Perich's ministerial commission.

Experts were divided about just how far-reaching the court's decision is. University of Virginia law professor Douglas Laycock, who represented Hosanna-Tabor, saw the ruling as a home run for the church.

"It's unanimous that she counts as a minister, it's unanimous that ministers can't sue, it's unanimous that it doesn't matter that whether the church had a religious reason or not," Laycock said. "The courts can't inquire into that. That's the story here today."

George Washington University law professor Ira Lupu agreed, noting that the court did not require any showing by the church that its justification is real and not a pretext for discrimination.

"When the court says you can have no inquiry into whether this religious reason is pretextual and just a cover for some kind of discrimination, that's a big deal," he said.

Others, however, disagreed. Daniel Mach, director of the ACLU Program on Freedom of Religion and Belief, said that the decision would have a limited application in future cases.

"Obviously, we are disappointed with the result," Mach said, noting that the ACLU had filed a brief supporting Perich. "But in the grand scheme, I don't think the implications of the case are all that broad. It's a relatively unique, limited set of facts."

Cardozo law professor Marci Hamilton echoed that sentiment, saying she views the decision as "narrow."

"The only issue they are deciding is whether a member of the clergy can sue their own religious employer for discrimination," Hamilton said. "And they say religious employers should be able to choose who their clergy are going to be."

Still to be determined is how all this plays out in practice. Will the ruling allow religious organizations to fire a "ministerial" employee for reporting sexual abuse to the police, or for reporting health and safety violations at a church or school to civil authorities? It would appear the answer to that question is "yes" — though Roberts pointed out that churches can still be held criminally liable. Unanswered, though, is whether a fired employee can sue for breach of contract or some other wrong.