The Ministerial Exception

New York Times
January 12, 2012

http://www.nytimes.com/2012/01/13/opinion/the-ministerial-exception.html?_r=2

In the case of Cheryl Perich, a teacher fired by a church-run school, the Supreme Court ruled on Wednesday that the Constitution’s protection of religious freedom bars her from suing the church under federal workplace discrimination law.

Ms. Perich had gotten sick and missed a term of teaching. When the school asked her to resign, she refused and threatened to sue. The school fired her, saying church policy required that it resolve the dispute internally. She sued for retaliation.

For the first time, the court found that a “ministerial exception” to employment discrimination laws applied to her as a church employee, who had “a role in conveying the church’s message and carrying out its mission.” In his opinion for the unanimous court, Chief Justice John Roberts Jr. seems to minimize the scope of the ruling by avoiding “a rigid formula for deciding when an employee qualifies as a minister” and by not saying how the exception would apply in other circumstances.

Although the court does not provide much guidance on how to proceed in future lawsuits against churches as employers, the ruling has broad sweep. It abandons the court’s longtime practice of balancing the interest in the free exercise of religion against important government interests, like protection against workplace bias or retaliation. With a balancing test, courts consider whether a general law, if applied to a religious institution, would inhibit its freedom more broadly than justified and, in those circumstances, courts could exempt the church.

In her brief, Ms. Perich warned that expanding the ministerial exception to include workers like her would allow a religious organization, for example, to retaliate against a teacher for reporting sexual abuse of a student to the government.

The chief justice dismissed that argument as one of an unwarranted “parade of horribles,” but his opinion provides no indication of how the teacher could fight back. While a footnote says the ministerial exception does not bar courts from considering cases like Ms. Perich’s, the exception’s categorical nature is powerful. The court rejected the plea of the government to include only those with “exclusively religious functions” and does not limit the exception to ministers, priests, rabbis or other religious leaders.

Ms. Perich spent most of her time teaching nonreligious subjects with about a sixth of her time on religion classes, so the United States Court of Appeals for the Sixth Circuit concluded that she was not a ministerial worker and that she could sue. In overturning that decision, the Supreme Court ruled that the question could not be “resolved by a stopwatch” and that Ms. Perich’s limited teaching about religion helped qualify her as a minister.

The court’s conception of the ministerial role is more encompassing than it has been defined by state and federal appellate courts. Its sweeping deference to churches does not serve them or society wisely.