Church-State Separation Extends to Religious Schools, Supreme Court Rules

By David G. Savage
Kansas City Star
January 11, 2012

http://www.kansascity.com/2012/01/11/3365180/church-state-separation-extends.html

The Supreme Court gave churches and religious schools a new shield against civil rights claims from their employees, ruling Wednesday that the principle of church-state separation bars bias suits from teachers who serve as "ministers" of the faith.

In a unanimous ruling, the high court for the first time held the Constitution includes a "ministerial exception" that protects churches and their schools from undue interference from the government and its courts.

The First Amendment protects the "free exercise" of religion, and Chief Justice John G. Roberts Jr. said "the state infringes" on this religious freedom if it forces a church or its schools to accept or retain "an unwanted minister. ... The church must be free to choose those who will guide it on its way."

While lower courts have long recognized such an exception, legal experts said Wednesday's decision was significant because it clearly extended this shield to tens of thousands of parochial schools across the country.

Notre Dame law professor Rick Garnett called the ruling "one of the court's most important church-state decisions in decades." It "protects religious liberty by forbidding governments from second-guessing religious communities' decisions about who should be their teachers, leaders and ministers," he said.

The court did not define exactly which teachers are "ministers." Lawyers differed over whether the ruling will block civil rights claims for all teachers in religious schools or just those who have a special role in leading religious instruction.

In the case before the court, the justices tossed out a disability-discrimination claim filed against an evangelical Lutheran school in Michigan by a "called" teacher who taught fourth grade.

University of Virginia law professor Doug Laycock, who defended the school, said the ruling applies only to teachers who have religious duties. "Teachers of purely secular subjects will still be able to sue," he said. "I expect teachers with substantial religious responsibilities will be covered," and thereby barred from suing over discrimination.

Criminal prosecutions against churches and religious schools will be unaffected, lawyers said.

The case began in 2004 when Cheryl Perich was diagnosed with narcolepsy and took a sick leave. She had been commissioned as a "called" teacher at the Hosanna-Tabor Evangelical Lutheran Church school. She led the students in daily prayers and taught religion classes as well as math, social studies, science and gym. The same school had "lay" teachers who worked under contract.

When she tried to return to work, she got into a dispute with school officials and threatened to sue. She was then fired. She indeed sued, alleging a violation of the Americans with Disabilities Act. The U.S. Equal Employment Opportunity Commission agreed she had a valid claim.

The EEOC questioned whether a ministerial exception existed. If so, it applies only to church school employees who "perform exclusively religious functions," it said. The 6th U.S. Circuit Court of Appeals agreed and upheld Perich's suit because most of her work involved the teaching of ordinary subjects such as reading and math. Only 45 minutes of her school day involved religious activities, the lower court said.

Roberts dismissed the EEOC's view as "remarkable" and said the ministerial exception is vital to religious liberty. Moreover, these disputes cannot "be resolved by a stopwatch." He said Perich was "commissioned as a minister" by her church. She received a special housing allowance for those involved "in the exercise of the ministry." And her school duties included leading chapel services.

"We conclude that Perich was a minister covered by the ministerial exception," Roberts said in Hosanna-Tabor v. EEOC. The decision about her employment "is the church's alone."

A concurring opinion by Justices Samuel A. Alito Jr. and Elena Kagan said they understood the "ministerial exception" to extend equally to "Catholics, Jews, Muslims, Hindus or Buddhists" even if those religions do not use the term "minister." The exception "should apply to any 'employee' who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith," Alito wrote.

In the past, the court often invoked the separation of church and state doctrine to strike down state laws that gave aid to religious schools, citing the First Amendment's ban on an "establishment" of religion. In this case, the court ruled against government interference with religion, citing the "free exercise" clause.