The Supreme Court will soon hear “one of the most important religious cases in decades,” according to a pre-trial analysis in today’s Washington Post. The case, Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission, arose from a Michigan church’s firing of a disabled woman. But the real question at stake (and the reason this case has reached the Supreme Court) is one with sweeping implications:
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.”
It’s a legal battle that almost certainly portends massive controversy and widespread social rupture. Do non-clergy qualify for all the protections of “equal employment” laws, even if they work at religious organizations which claim exemptions to those laws on the grounds of belief? Given the ratio of clergy to non-clergy in most religious organizations, it’s hard not to see this case as affecting the very root of many civil society organizations in this country.
The Becket Fund for Religious Liberty represents one side, while, bizarrely (though not surprisingly), the American Civil Liberties Union is defending the government, arguing that:
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 [the plaintiff suing the church] should not fall under the ministerial exception, Mach said, because her primary job was as a school teacher, not a minister.
Regardless of the way the court rules, this case is already destined to become a significant landmark in American legal theory and practice. But if the court does come down in favor of the plaintiff, it seems likely that religious schools, hospitals, and charities ought to brace themselves for a wave of litigation and the possibility of having their moral teachings considered irrelevant in the hiring and firing of staff.
September 29th, 2011 | 3:26 pm
Assuming the Washington Post article sums up the situation at all correctly (a big assumption in today’s media world), I don’t see why religious freedom is at play here, since she wasn’t fired for anything to do with religion. It sounds like she was fired as retaliation for either threatening to sue or for getting sick.
September 29th, 2011 | 4:27 pm
Also of note is the Obama Administration’s position in the case, which is at least as problematic as the case itself. Specifically, they are arguing — contra the ACLU — that the ministerial exemption does not apply to the facts of the case because no ministerial exemption exists at all under the religion clauses.
Commentary — as well as the relevant briefs — are available at the link below.
http://mirrorofjustice.blogs.com/mirrorofjustice/2011/09/the-obama-administrations-brief-in-hosanna-tabor-v-eeoc.html
September 29th, 2011 | 4:51 pm
Brian,
Unfortunately, the write-up misses a key point. The school had told her that she could not come back until the next year because it had hired someone else. She threatened to sue. The school then informed her that it was a tenet of their faith not to make recourse to civil courts in disputes between believers until all other methods of dispute resolution had failed and asked whether she was serious. She said yes.
So technically — and it does look to an outsider a lot like after the fact rationalization — they fired her for breaking with the tenets of the faith by threatening to sue. It is a perfect illustration of the law school maxim that bad facts make bad law.
September 29th, 2011 | 10:54 pm
Chris: Uh, yeah, that’s an awfully thin thread on which to hang the question of the rights of religious institutions to choose their own employees free from government interference.
September 30th, 2011 | 9:51 am
Is it really, seriously, a tenant of faith for Lutheran’s to not even talk about suing if they are getting shafted?
I would be in favor of the church here except I would insist that:
1. Ministrial Exception only be used when there’s a real article of religious faith. For example, it should not protect the Church against a suit for discrimination against the handicapped unless the Church really has a doctrine of being anti-handicapped.
2. Claims of violating religious tenants via #1 should be able to proven by clear doucmentation that the employee was expected to abide by said tenants *before* the dispute erupted. I would place the burden of proof here on the Church because it does really smell of an after the fact rationalization to deny this woman legal recourse.
3. I would limit the use of the exemption to actual ministers. Here the church *may* be on better grounds since she taught religion. But I think the church should have to again demonstrate that it really is the case that it considers the teachers they hire ‘commissioned ministers’. If they, for example, advertise in their help wanted ads or job fairs that one needn’t be Luthern to become a teacher in their school, I’d consider their claim that she was a semi-minister pretty suspect.
The woman may not have a great case of discrimination against the handicapped, but the church here seems like it would see ministrial exemption stretched to become a blanket policy for any institution that wants to call itself religious to do just about anything and everything.
September 30th, 2011 | 10:59 am
In #2, for example, I would expect the Church to produce evidence that it disciplined its other employees who may have filed lawsuits against other ‘believers’….not simply punished this one women for her threat to sue them. If, however, the Church Treasurer is also a doctor who regularily passes his unpaid bills to his lawyer for small claims court even if the patient’s are ‘fellow believers’, I would cast a skeptical eye at this claim that the Church is simply exercising their religion rather than exercising religion as an excuse.
October 1st, 2011 | 9:34 am
Here, in Scotland, the Cardross Case decided that a church was a voluntary association, just like a trade union, the governing body of a sport, a literary society, or a football supporters’ club. The rules of the association form a contract between each member and all the rest, a contract that the courts will construe and enforce.
The Church of Scotland is in a slightly different position, for there parliament has declared that “This Church, as part of the Universal Church wherein the Lord Jesus Christ has appointed a government in the hands of Church office-bearers, receives from Him, its Divine King and Head, and from Him alone, the right and power subject to no civil authority to legislate, and to adjudicate finally, in all matters of doctrine, worship, government, and discipline in the Church, including the right to determine all questions concerning membership and office in the Church…” (Church of Scotland Act 1921)
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