Cheryl Perich was a called teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan. (Called teachers, as opposed to lay teachers, are chosen by a vote of the church congregation.) She taught religion classes, led worship, and led prayer, and when teaching her fourth-graders secular subjects like science and social studies, was required to integrate faith into her teaching.
In June 2004, Perich became ill with what was eventually diagnosed as narcolepsy, with symptoms including sudden and deep sleeps from which she could not be awakened. She was unable to work for the next six months, leading the next January to the congregation voting to ask Perich to accept a “peaceful release from her call”—what the Church describes as a religious act by which a congregation and a called minister agree to release one another from the mutual obligations of the call.
Instead, on February 8, 2005, Perich obtained a doctor’s note saying that she’d be able to return to work in two weeks. The School Board responded by telling her there was no longer was an opening, and she shouldn’t return. (According to the record, a bunch of parents were afraid of Perich falling asleep in class and freaking out the kids.) She showed up anyway, not leaving until the principal gave her a note acknowledging that she had showed up. Perich told the principal that unless they reinstated her to work, she’d sue; instead, the congregation voted 40-11 to fire her for her “insubordination and disruptive behavior” in threatening to sue. Subsequently, the Equal Employment Opportunity Commission filed a complaint against the Church under the Americans with Disabilities Act, alleging a single count of retaliation.
In response to the suit, the Church invoked what’s known under the law as the “ministerial exception,” claiming that as a church it was exempt from employment discrimination laws when it comes to the hiring and firing of religious teachers, and it’s the scope of that exception which the Supreme Court of the United States will address in Perich’s case this term. (The case will be argued on Wednesday, October 5. Check StubHub for prime seating!) Below the fold, all the neat, nerdy and fascinating doctrinal details.
Courts generally agree that if an employee’s primary duties are religious rather than secular in nature, the ministerial exception applies. In other words, given the Free Exercise Clause of the First Amendment, we don’t want courts to be judging whether a rabbi’s not being hired by a synagogue for being insufficiently Orthodox was, in fact, consonant with religious doctrine. Similarly, a woman can’t sue the Catholic church for failing to ordain her as a priest. (There are also Establishment Clause issues with a court ordering a religious institution to hire a certain leader, and free association concerns as well.)
We know this doctrine protects decisions with regards to ministers. We know it doesn’t protect a church in its hiring/firing of janitors. The question comes with everyone in between. In Perich’s case, the Sixth Circuit looked on a minute-by-minute basis to see whether her primary duties were religious, and determined that because she spent the majority of her day teaching secular subjects using secular textbooks, the Church could not receive the benefit of the exception as to its treatment of her.
So let’s line up what the parties to the case, and various amici have to say about all this. First, the Church argues that the ministerial exception should apply to employees who perform functions important to the spiritual and pastoral mission of the Church, including “all those the church selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large,” including Perich:
The clock-driven approach disregards far more probative evidence of Perich’s importance to the Church. It disregards Perich’s role as her students’ primary source of religious instruction. It disregards her responsibility to integrate religion into “secular” subjects; it disregards her status as a commissioned minister; it disregards her mandatory religious education; and it disregards her religiously ordered relationship with the Church. By focusing on minutes, the Sixth Circuit missed the big picture of Perich’s role in the religious mission of the Church […]
An employee who performs important religious functions is a minister for purposes of the ministerial exception. An employee who holds an ecclesiastical office should be presumed to perform important religious functions, absent evidence that the office is a sham or that the job is entirely secular. Everything else—the required theology courses, the religiously driven selection process, the belief that the process is divinely guided, the requirement of congregational votes, the ministerial housing allowance, the fact that Perich was subject to the same disciplinary rules as the pastor—is evidentiary. Facts such as these are not essential, but they help confirm that the Church viewed Perich’s functions as religious and as important to the mission of the Church.
Perich, understandably,
argues for a different approach:
Hosanna-Tabor elected to run a commercial institution that taught the secular curriculum as a substitute for compulsory public education. As with a non-religious private school, Hosanna-Tabor’s associational interest in selecting its teachers is subject to the government’s compelling interest in protecting teachers of secular subjects in a commercially operated school from discrimination and retaliation, and in affording access to courts to enforce those protections. Religious or not, an expressive association cannot render itself immune from civil suits against it by invoking a belief—however sincerely held—in the virtues of internal dispute resolution. Moreover, because Hosanna-Tabor has no religious objection to the employment of disabled individuals, its interest in foreclosing civil court resolution of the non-ecclesiastical, under lying dispute is significantly diminished, whereas the government’s corresponding interest in assuring the resolution of civil claims in civil courts is strengthened.
[The Church’s proffered] expansive rule would leave hundreds of thousands of teachers without the protection from discrimination and retaliation that Congress intended to afford them. It would also reach beyond teachers to encompass administrative staff, as well as employees of social-services organizations affiliated with religious institutions. And, critically, it would leave those employees wholly unprotected against retaliatory dismissals for, inter alia, asserting their right to minimum pay, unearthing health or safety violations, or, as in a case currently before the Court, reporting sexual abuse of a student. Nothing in the right of free association—or, indeed, in any right under the Religion Clauses—grants religious organizations such a sweeping exemption from neutral and generally applicable antidiscrimination laws.
The Free Exercise Clause provides no greater support for Hosanna-Tabor’s expansive approach. The general rule under that Clause—applied to individuals and institutions alike—holds that neutral, generally applicable laws like the ADA are fully enforceable and need not give way to religious exercise. A religious organization thus has no constitutional entitlement to become a law unto itself. The Court instead has left it to Congress to accommodate religious exercise through enactment of legislative exceptions from antidiscrimination laws, and Congress has been equal to the task. The Court has recognized a limited exception to the rule allowing enforcement of neutral laws according to which civil courts may not take sides in a religious dispute. But Perich does not ask any court to take sides in a religious dispute—she does not here contest Hosanna-Tabor’s asserted religious belief that disputes should be decided internally rather than in civil court. She instead seeks a determination that her firing violated the ADA’s neutral, generally applicable retaliation provision, a determination requiring no judicial inquiry into the merits of any religious doctrine.
The Establishment Clause likewise afforded Hosanna-Tabor no entitlement to fire Perich in retaliation for asserting her right to be free from discrimination. Hosanna-Tabor is correct that one of the principal purposes of the Clause was to prevent government appointment of clergy. But the application of neutral, generally applicable laws barring discrimination hardly constitutes government appointment of an employee—it instead leaves institutions free to appoint any employee as long as they refrain from illicit discrimination or retaliation.
The EEOC, in fact, goes even further, basically arguing that unless the person had an exclusively religious function, there's no exception:
[A] challenge to a church’s announced practice of ordaining only male ministers would fail because compelled ordination of a woman would be incompatible with such a church’s ability to express its religious message that only men are spiritually eligible for such positions. [The Church], however, fails to demonstrate that dismissal of Perich was necessary to allow it to express any message, much less acknowledge the compelling governmental interest in enforcement of anti-retaliation laws.
The Establishment Clause likewise provides no support for a categorical ministerial exception that would bar adjudication of this case. While, under some circumstances, a judicial remedy of reinstatement to ministerial office could pose an entanglement problem under the Establishment Clause, no such problem is presented here. Perich has disclaimed any interest in reinstatement, and it is not clear that such a remedy would even be feasible because the school where she worked has closed.
Moreover, reinstatement is not the only, or an automatic, remedy in discrimination and retaliation cases. Plaintiffs may seek purely monetary forms of relief, including damages and attorney’s fees, which do not pose the same concerns that reinstatement might....
The anti-entanglement principle of the Establishment Clause can also bar adjudication of claims that would require a court to take sides in a dispute over religious doctrine. But such concerns are not present in this case. Petitioner has variously contended, on the one hand, that it did retaliate against Perich for threatening to sue but had a religious reason for doing so—her failure to use the church’s mandatory dispute-resolution process—and, on the other hand, that it did not retaliate against Perich but instead terminated her because of her “disruptive” attempt to return to work. The district court could adjudicate either defense without entanglement. When an employer admits discrimination or retaliation but asserts a religious reason for its actions, a court can accept the employer’s articulation of its religious doctrine while rejecting its defense without any entanglement. And cases in which an employer denies retaliation and asserts an alternative religious justification for its actions can proceed, “if only to ascertain whether the ascribed religious-based reason was in fact the reason for the discharge.”
[The Church's] request for a broad exemption to the ADA’s neutral and generally applicable anti-retaliation provision, if accepted, would critically undermine the protections of the ADA and a wide variety of other generally applicable laws. The government has a compelling interest in protecting those who come to it with information about possibly illegal conduct. An exemption for religious employers would chill employees’ ability to invoke their rights under numerous statutes. The logic of petitioner’s position, moreover, could easily be invoked as a justification for violating generally applicable laws forbidding retaliation against witnesses in civil or criminal proceedings. No provision of the Constitution demands that result.
And there's about
a zillion amicus briefs as well, from every corner of the religious/civil rights/civil liberties world. The ACLU, along with Americans United for Separation of Church and State, the Sikh Council on Religion and Education, and Unitarian Universalist Association (among others on its brief)
argues, for instance:
[E]ven if the Court were to conclude that Ms. Perich was a ministerial employee, the ministerial exception should protect [the Church] only if the challenged employment decision arose from religious concerns—rather than from secular animus or retaliation. Here, the record contains ample evidence that Ms. Perich’s termination was motivated by factors unrelated to [the Church's] religious beliefs, doctrine, or mission. Her lawsuit should proceed.
But will it? Wait and see.