SCOTUS up angle1

By K. Hollyn Hollman, BJC General Counsel
From the October 2011 edition of Report from the Capital

On October 5, the U.S. Supreme Court heard oral arguments in what may be the most significant religious liberty case to reach the High Court in 20 years. If the intense questioning by the justices was any indication, it may also be one of the most difficult.

At issue in Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission is the scope of a court-made rule that precludes most employment-related lawsuits by ministerial personnel. The BJC joined an amicus effort in the case, defending the “ministerial exception” as a core application of the separation of church and state that prevents courts from second-guessing decisions about who is qualified for ministerial leadership.

Click here to download (pdf) the BJC’s amicus brief in the case.

This particular case arose out of a dispute between Cheryl Perich, a “commissioned” teacher, and the church-run elementary school in Michigan where she taught religion and other subjects. Perich threatened to sue when the school delayed her return from a medical leave of absence for narcolepsy. The church terminated her employment, citing Perich’s disruptive behavior and failure to submit to an internal church mediation process.

The EEOC sued the church on Perich’s behalf, alleging that she was fired in violation of the Americans with Disabilities Act, a statute that explicitly prohibits retaliation against employees who report or oppose disability discrimination in the workplace. The district court dismissed the case, but the 6th U.S. Circuit Court of Appeals reversed, holding that the ministerial exception does not cover teachers who spend a majority of work time teaching secular subjects.

Two particular issues dominated the questioning from the bench. First, for purposes of applying the ministerial exception, how should the law define who constitutes a minister? Second, what is special about religious employers that would justify such a broad exception?

As to the first question, the church emphasized that the ecclesiastical nature and religious functions of Perich’s position put her within the exception’s coverage. The exception should apply to all whose job responsibilities include “teaching the faith.” This led some of the justices to question the breadth of the ministerial ranks. What about a teacher who teaches solely secular classes but leads students in prayer before meals? What about a teacher who is ordained, but by a denomination different than the religious employer? And what about churches who consider all members to be ministers?

The government was similarly hard-pressed to propose a legally satisfying definition of “minister.” Perich’s lawyer suggested that an employee is not a minister if that individual carries out “important secular functions in addition to her religious duties.” Chief Justice John Roberts summarily rejected that test, noting that the Pope is a head of state carrying out “important secular functions.”

Apart from the legal definition of “minister,” the justices seemed equally challenged by the second question. The church ably defended the exception on the facts of this case, but as justices raised scenarios involving whistle-blowing to protect children from abuse, the church acknowledged there may be a need to carve out exceptions to the exception. Several justices expressed incredulity at the government’s contention that, in applying anti-retaliation measures, churches are entitled to no greater protection than secular employers like labor unions. Justice Antonin Scalia called this argument “extraordinary.” Similarly, Justice Elena Kagan — hardly Scalia’s ideological equivalent — found it “amazing” to suggest that the religion clauses have no bearing upon a church’s relationship with its employees.

It is difficult to imagine that the Court will find that no ministerial exception exists, but defining its scope is no small task. As Garrett Epps noted in The Atlantic, “Too narrow a ministerial exception would bring government into the sanctuary. Too broad an exception will permit religious bodies to operate outside the law.”

The broad and diverse range of religious groups who supported Hosanna-Tabor, including the BJC, share the concern that if the exception is defined too narrowly, it will expose many religious institutions to far greater liability risks in hiring and firing decisions, entangling courts in decisions about religious doctrine. Amici offered constructive criteria for defining ministerial personnel, as well as support for minimizing the government’s role in deciding who is fit to serve in ministry.

To be sure, a broadly construed ministerial exception will result in some cases that may offend our notions of civil fairness and equality under the law. But it is inconsistent with fundamental principles of religious liberty and church-state separation for the government to be entangled in religious decisions about who serves in ministry.

Click here to read the entire October 2011 edition of Report from the Capital as a PDF document.