WASHINGTON – The Supreme Court on Oct. 5. will hear one of
most important religion cases in decades, centered on the degree to which
religious institutions should be exempt from anti-discrimination laws.
The case started at a Lutheran elementary school in Michigan
where a teacher claimed she was fired in violation of the Americans With Disabilities
The question before the justices
concerns the “ministerial exception,” a 40-year-old legal doctrine that
protects churches and other religious institutions from government interference
in their employment decisions.
Few would dispute that a religious congregation should be
unfettered when it chooses to hire or fire clergy. But what about other church employees?
“Advocates for the ministerial exception argue that
religious institutions, in their hiring and firing, should be regulated as
little as possible,” said Ira C. Lupu, a professor at The George Washington University
School of Law who specializes in church-state cases.
“On the other side are those concerned that a particular
group is cast outside the various protections of civil rights laws.”
Cheryl Perich taught secular subjects and religion at
Hosanna-Tabor Lutheran School in Redford, Mich., and signed a contract as a “called
teacher,” charged with advancing the religious doctrines of the congregation
that operated the school.
Her dispute with the school, which is now closed, began
after she fell ill in 2004, and took several months off to treat a chronic
sleep disorder. The congregation hired another teacher to take her place, and asked
Perich to resign. Perich, who had permission from her doctor to return to work,
threatened to sue and the congregation then voted to fire her.
That employment decision was its prerogative, said attorney
Luke Goodrich, of the Becket Fund for Religious Liberty, which is representing
“The purpose of the ministerial exception is to protect the
right of religious institutions to choose their religious leaders,” he said.
Because Perich was charged with imparting religious doctrine
to her students as a “commissioned minister,” the ministerial exception applies,
Perich lost her first suit in
federal court in 2008, but the Cincinnati-based 6th U.S. Circuit Court of
Appeals ruled in her favor last year. Now the Supreme Court will consider the
case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.
The American Civil Liberties Union (ACLU), which co-wrote a
brief supporting the government’s side in the case, hopes the justices will narrowly
interpret the ministerial exception.
“While faith communities surely have the right to set
religious doctrine and decide which ministers best advance their religious
beliefs and practices, they shouldn’t get a blank check to discriminate or retaliate
against their employees,” said Daniel Mach, director of the ACLU s Program on
Freedom of Religion and Belief.
Perich should not fall under the ministerial exception, Mach
said, because her primary job was as a school teacher, not a minister.
“There’s ample evidence in the case that Perich was fired
because of her disability and the assertion of her legal rights – and not for
any religious or doctrinal reasons,” he said.
One of the toughest questions facing the court, experts say,
is whether the government should be allowed to decide which employee duties are
“religious,” and which are not.
The high court has never ruled on the ministerial exception,
and its decision will guide lower courts on whether to weigh more heavily the rights
of religious institutions or their employees.
“I’ll tell you what makes this case really interesting,” said
Lupu. “The last time the Supreme Court heard a case about internal church disputes
was more than 30 years ago. This makes for a certain amount of unpredictability.”
Lupu said he’ll be watching the court’s three female
justices, who he says are not likely to favor a broad interpretation of the ministerial
exception because it could adversely affect the many women who teach at
religious schools. The church, then, would have to convince five of the six
male justices to see the case its way.
“A new and narrow interpretation of the ministerial
exception is certainly possible,” Lupu added. “That would alter employment
relations in virtually every religious institution in the U.S.”