Justices Shield Churches from Job Bias Suits by Religious Workers

St. Louis Post-Dispatch
January 12, 2012

http://www.stltoday.com/news/national/justices-shield-churches-from-job-bias-suits-by-religious-workers/article_b81191bf-fe99-5ec1-a2b7-c15977e1b6c5.html

The Rev. Matthew Harrison preaches at a service in July, 2011.

In a groundbreaking case, the Supreme Court on Wednesday held for the first time that religious employees of a church cannot sue for employment discrimination.

The court's unanimous decision in a case involving a church and school in Michigan owned and operated by a member congregation of the St. Louis-based Lutheran Church-Missouri Synod was the first time the high court has acknowledged a "ministerial exception" to anti-discrimination laws.

This doctrine — developed in lower court rulings — says the First Amendment's guarantee of freedom of religion shields churches and their operations from the reach of such laws when the issue involves religious employees of these institutions.

The ruling does not, however, specify the distinction between a secular employee, who can take advantage of the government's protection from discrimination and retaliation, and a religious employee, who can't.

The case came before the court because the federal Equal Employment Opportunity Commission sued the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., on behalf of an employee over her firing after a sick leave.

The Rev. Matthew Harrison, president of the Lutheran Church-Missouri Synod, said in St. Louis that he was "delighted" with the decision.

"The Court, in upholding the right of churches to select their own ministers without government interference, has confirmed a critical religious liberty in our country," Harrison said in a written statement. "The Lutheran Church-Missouri Synod places great emphasis on the religious education of its children and the important role of commissioned ministers in promoting our faith, so we are thankful that the Court has confirmed our church's right to decide who will be serving as ministers in our churches and schools."

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.

Garnett added: "The court hasn't spoken this clearly on a church-state matter in almost 20 years. This is bedrock. All the justices came together to say if religious freedom means anything, it means governments can't interfere with religious institutions' decisions on who is going to be their minister or teacher."

Writing the court's opinion, Chief Justice John Roberts said allowing discrimination lawsuits against religious organizations could end up forcing churches to take religious leaders they no longer want.

"Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs," Roberts said. "By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments."

The court's decision will make it virtually impossible for ministers to take on their employers for being fired for complaining about issues like sexual harassment, said the Rev. Barry W. Lynn, executive director of the advocacy group Americans United.

"Clergy who are fired for reasons unrelated to matters of theology — no matter how capricious or venal those reasons may be — have just had the courthouse door slammed in their faces," Lynn said.

But Douglass Laycock, who argued the case for Hosanna-Tabor, called it a "huge win for religious liberty."

"The court has unanimously confirmed the right of churches to select their own ministers and religious leaders," he said.

Laycock 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 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."

But because this was the first time the high court had ever considered the "ministerial exception," it would not set hard and fast rules on who can be considered a religious employee of a religious organization, Roberts said.

"We are reluctant ... to adopt a rigid formula for deciding when an employee qualifies as a minister," he said. "It is enough for us to conclude, in this, our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment."

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.

Tim Townsend of the Post-Dispatch contributed to this report.