Why the Supreme Court’s New Religion Decision Is So Awful

By Anna North
Jezebel
January 13, 2012

http://jezebel.com/5875600/why-the-supreme-courts-new-religion-decision-is-so-awful


Yesterday, the Supreme Court decided that a religious institution can fire a minister at will, regardless of federal employment laws. And religious groups may get to choose who they consider to be "ministers." Here's why that's a terrible idea.

According to the Times, Hosanna-Tabor Church v. Equal Employment Opportunity Commission involved a teacher named Cheryl Perich, who said she was discriminated against at her Lutheran school due to her narcolepsy. The school ultimately fired her when she pursued a lawsuit against them, saying that was a violation of church doctrine. Now the Supreme Court has decided that though Perich's religious teaching "consumed only 45 minutes of each workday," with the rest devoted to secular education, she could be consider a "minister," whom the school had the right under the First Amendment to fire as it saw fit. In his opinion, Chief Justice John Roberts wrote that requiring the school to rehire Perich "would have plainly violated the church's freedom," and that awarding her damages "would operate as a penalty on the church for terminating an unwanted minister." It's unclear exactly who counts a minister, but that could be interpreted extremely broadly — according to the Times, "Justice Clarence Thomas wrote that the courts should get out of the business of trying to decide who qualifies for the ministerial exception, leaving the determination to religious groups."

So basically, this decision could mean that a religious group could designate any employee as a minister, and thus circumvent all discrimination and other employment laws with respect to that employee. For a fuller explanation of why this is a bad idea, we turn to an amicus brief filed in the case by law professors Caroline Mala Corbin and Leslie C. Griffin. They write that the decision creates a "lawless zone" for religious groups, and explain,

The ministerial exception has breathtaking consequences for the civil rights of thousands of men and women who work for religious organizations. Any employee (including elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, communications managers and nurses) at any religious employer (mosque, synagogue, church, school, hospital, nursing home, faith-based social service organization, or other non-profit religious organization) is at risk of losing the protection of the employment laws (including the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers' Compensation laws and state tort and contract law) as long as the employer decides that the employee performs important functions in the religion.

The brief also argues persuasively that Perich's case wasn't even about freedom of religion. Corbin and Griffin write,

Hosanna-Tabor [...] argues that there is a religious question because Perich was fired for being insubordinate and spiritually unfit. [...] First, the school argues, Perich had been unruly and disruptive when asserting her legal rights, thereby ruining her relationship with the school. [...] Second, instead of trusting the church's mandatory internal dispute resolution process, Perich sued in court.

These arguments lack merit. Terminating an employee for asserting her legal rights is the very definition of retaliation, and is illegal no matter how disruptive, insubordinate, or infuriating the employer may find it. Next, any contract that purports to waive an employee's right to sue for an [Americans with Disabilites Act] violation is void as against public policy.

They add that the church's position "boils down to this assertion: A religious organization should be able to proclaim ministers spiritually unfit any time that they assert their legal rights or insist that the church follow the law, and for the secular courts to disagree with this assessment violates the Establishment Clause." To show how damaging it would be for our country to adopt this as a standard, they offer a few examples of what might happen if we did:

To allow religious institutions to retaliate and to accept the school's all-litigious-ministers-are-spiritually-deficient argument means that a church would be able to dismiss as insubordinate and spiritually unfit a minister who was raped by a coworker and brings a sexual assault charge. A church would be able to terminate without interference a minister who threatens to sue after the church breaches its contract and fails to pay the agreed-upon salary. Likewise, a church or religious school or religious hospital would be able to fire as insubordinate and spiritually unfit a minister who reports to civil authorities any wrongdoing, whether it be embezzlement or negligence or the sexual abuse of children. In short, letting a religious organization claim that a minister who insists on compliance with the law is spiritually unfit creates a potentially limitless loophole that makes each church a "law unto itself."

Apparently the Supreme Court is okay with this. And that's a serious blow to religious employees, who just lost potentially all of their legally-guaranteed rights.