The U.S. Supreme Court on Wednesday struggled with a clash of the rights of churches to make employment decisions about workers with religious functions versus the interests of government in ensuring a discrimination-free workplace.
“Here what we have is a claim of retaliation, so that she can’t even get a hearing,” Justice Anthony M. Kennedy said about the lawsuit filed by Cheryl Perich, a teacher at a Lutheran school in Michigan who claims church officials dismissed her after she threatened to sue under federal disability law. (My preview story is here.)
“She can’t get a hearing in a civil court, but she could get a hearing” in a Lutheran tribunal, said Douglas Laycock, the lawyer representing the Hosanna-Tabor Lutheran Church and School in Redford, Mich.
The church contends that Perich, a 4th grade teacher who mostly taught secular subjects but was a commissioned minister of the Lutheran faith, violated church doctrine by threatening to go to civil courts.
Her initial claim was that the church violated her rights under the Americans with Disabilities Act of 1990 in its handling of her medical leave for narcolepsy. The federal Equal Employment Opportunity Commission took up her case solely on the claim that the church had retaliated against her in violation of the ADA.
“Congress has not unconstitutionally infringed [the church’s] freedom in this case by making it illegal for it to fire a 4th grade teacher in retaliation for asserting her statutory rights,” Leondra B. Kruger, an assistant to the U.S. solicitor general, told the justices during the arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (Case No. 10-553).
The government appeared to retreat somewhat from a position advanced in its legal briefs that the U.S. Supreme Court should not recognize the “ministerial exception"—an exemption from anti-discrimination laws developed by lower federal courts and recognized for a range of church employees, from ordained preachers to parochial-school teachers and church music ministers.
“We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses,” said Kruger, representing the EEOC and the Obama administration. But she added that the government has a strong interest in telling the church school “that it may not punish its employees for threatening to report civil wrongs to civil authorities. That is an interest that we think overrides the burden on the association’s religious message about the virtues of internal dispute resolution as opposed to court resolution.”
Both Justices Antonin Scalia and Elena Kagan said they were troubled by the government’s position that a church’s right to dismiss a ministerial employee who defied church teaching was grounded primarily in the First Amendment’s right of association, not in its religion clauses.
Justice Kagan said told Kruger she found it “amazing that you think that neither the free exercise clause nor the establishment clause has anything to say about a church’s relationship with its own employees.”
The Supreme Court has never ruled on the scope of the ministerial exception, but it seemed inclined on Wednesday to give it some degree of approval.
“The ministerial exception is not something new,” said Justice Samuel A. Alito Jr. “It has been widely recognized ... by the courts of appeals going back 40 years.”
Much of the argument was spent with the justices trying to get the lawyers to define which church employees should fall under the ministerial exception.
Walter Dellinger, a Washington lawyer representing Perich, suggested that the test should involve whether a church employee was carrying out important secular functions that were similar to those of government, such as a parochial school teacher who spent most of her time teaching secular subjects.
“That can’t be the test,” Chief Justice John G. Roberts Jr. told him. “The Pope is a head of state carrying out secular functions, right? Those are important. So he’s not a minister?”
“There are ample doctrines to protect church autonomy,” Dellinger said later in the argument, noting court rulings that judges may not order church officials reinstated into ecclesiastical positions.
Justice Sonia Sotomayor worried about a parochial-school teacher who loses her job after reporting sex abuse in the church to the government.
“Why shouldn’t we protect the people who are doing what the law requires?” she said.
Justice Alito and others expressed concerns that without a broad ministerial exception, judges and juries would have to get involved in deciding the relative significance of a church tenet within that faith.
They might have to ask, “What did Martin Luther actually say ... about suing the church?” Alito said.
Perich, 57, appeared before reporters outside the Supreme Court building.
“My situation really had nothing to do with religion,” she said. “I can’t fathom how the Constitution would be interpreted in such a way as to deny me my rights.”
The case will be decided by the end of the court’s term next June.
Photo: Cheryl Perich addresses the media outside the U.S. Supreme Court on Oct. 5. The court heard arguments today in Hosanna-Tabor Lutheran Church and School v. Perich, a case that will decide whether parochial school teachers such as Ms. Perich fall under a doctrine that exempts church ministers from protection under federal anti-discrimination laws. (Maria Matveeva/Americans United)
A version of this news article first appeared in The School Law Blog.