Sunday, January 15, 2012

Score One For The Christians

I figured that Sunday was a good day to celebrate one small but significant victory for Christianity (and all religions) in the ongoing government war against faith. And maybe the victory wasn't so small. In a 9-0 decision, the US Supreme Court upheld the right of religious institutions to determine whether a minister's services should be terminated without being trumped by employment discrimination law.

The Equal Employment Opportunity Commission had used the Americans with Disabilities Act to require Hosanna-Tabor Evangelical Lutheran Church to re-hire a former church school teacher. When originally filed with the lower court (during the Bush administration), the court held that it had no jurisdiction over such religious matters, and dismissed the case. The EEOC appealed to the Sixth Circuit Court of Appeals. The lower court decision was reversed, and the EEOC demanded the employee be re-hired. The church appealed to the Supreme Court. The Holder Department of Justice enthusiastically pursued the interests of the EEOC.

I'll keep the facts as simple as possible. The employee, Cheryl Perich, was hired as a "called" church school teacher. Most Christian denominations have the same or a similar designation for teachers who have completed training in church doctrine and have agreed to teach according to those principles. They are distinguished from "lay" teachers who are free to teach their subjects but are not required to insert church doctrine into the class curriculum. A very long line of court cases below the Supreme Court level, in nearly every federal appellate district, has included "called" teachers under the "ministerial exception" exempting religious trainers from general employment law.

Perich had developed a debilitating case of narcolepsy. Her doctors advised the school that she would be ready to come back to work after therapy and medications some time in late 2005. The school advised Perich that she should go on disability leave for the 2004-2005 school year, they would pay her medical insurance premiums, and when she was well enough to return for the 2005-2006 school year, she would have her job back.

But Perich decided on her own that she was well enough to return for the 2004-2005 term, and showed up for work. The school refused to replace the lay teacher who had taken over her duties on the grounds that Perich had not been properly medically released and that she could not at that time perform her proper "called" (religious) teacher's duties.

Perich then filed a complaint with the EEOC, after threatening the school with a lawsuit. The school responded by terminating her "ministry" because the church determined that her threats and the EEOC complaint were inconsistent with church doctrine and policy. They further noted that if she had been a lay teacher, they might still have refused to allow her to return for the 2004-2005 school year, but would not necessarily have felt it their religious duty to terminate her services for the following school year.

Many fair-minded people might think that the EEOC and Perich should have won. After all, that's what the ADA was designed to protect against, and the termination does seem a bit unfair and perhaps even retaliatory. But that's not the issue, and the Supreme Court got it exactly right. The question that had to be answered was "does the Constitution's First Amendment guarantee of freedom of religion override statutory labor and discrimination law?" The high court answered "yes." And it did so unanimously.

The Becket Fund for Religious Liberty took the case originally, recognizing that this was one small employment issue at one small Michigan church which contained huge implications for religious freedom nationwide. It was a David vs. Goliath battle between one congregation and the secular federal bureaucracy. And David won. The principle established is that if a religious institution makes a decision based on a religious belief that it has the right to control its own ministry, then civil anti-discrimination law cannot interfere unless there is an even stronger fundamental constitutional right which clearly conflicts with the First Amendment. The Supreme Court found no such conflicting right.

Had Perich been a janitor or a lay teacher, the result would likely have gone the other way. But God love the Supremes. They found that even if the termination violated secular statutes, the religious element outweighed the civil interest. And so said they all.

Douglas Laycock, a law professor, argued the case for the church and the Becket Fund. He summed up the Supreme Court decision this way: "This is a huge win for religious liberty. The Court has unanimously confirmed the right of churches to select their own ministers and religious leaders." This is a landmark decision that the average layman may not be aware of in the future, and its announcement was made right in the middle of the returns from the New Hampshire primary, thereby producing zero mainstream media coverage.

This may all sound a little obscure, with no implications for future litigation. But is it really? The Supreme Court may very well have fired a shot across the secularist bow with this decision which will be reflected later in a much more public and contentious issue working its way to the high court. If the Supreme Court were to decide that gay marriage is a valid exercise in government power and that state or federal government cannot forbid it, this present decision would go a long way toward allaying the fears of those who oppose gay marriage on religious grounds (myself included).

Despite promises to the contrary, the states supporting gay marriage will be very likely to attempt to impose anti-discrimination statutes on religious organizations which preach against gay marriage and/or refuse to perform them. Even if they don't, the ACLU will surely find some gay couple that wishes to challenge the churches on gay marriage using existing anti-discrimination law. This case holds that religious institutions have a near-absolute right to determine their own doctrine and how it is to be implemented.

So when Pastor John preaches that homosexuality is a sin, Father James condemns sexual relationships outside traditional one man-one woman marriage, and Rabbi Joe refuses to perform a gay marriage, they cannot be persecuted a la Canada. No labor or anti-discrimination statute can force a conservative religious institution to ignore its own doctrines or force it to hire clerics who oppose the church's religious beliefs. They are now also free to fire any holder of the pulpit who has some sort of secular epiphany and decides he or she is in favor of gay marriage after all.

That's how the legal mind works. And it's how a small employment case in Michigan could conceivably affect a hotly-contested national issue despite the case's seeming dissimilarities with that national issue. This case will undoubtedly be cited as precedent the very first time some state or federal authority attempts to punish a church or synagogue for violating anti-discrimination law by refusing to perform or condone gay marriage. And any lawyer worth his salt will point out that the Supreme Court decision was unanimous, including the concurring opinions of four very liberal Justices.


AndrewPrice said...

I saw this and I think it's good....

BUT I am concerned that Britain recently made the same sort of distinction and what they decided was that only "religious personnel" were outside discrimination laws, which they defined as meaning the actual priests, rabbis or imams. Everyone else below those individuals was covered by discrimination laws. Thus, while the Church of England could not be forced to hire priests according to gay rights laws or anti-religious discrimination laws, any other position they had was covered.

That's like covering the CEO position of a company, but not anyone else. It's effectively a useless distinction.

My concern here is that the Supreme Court didn't define how far down the chain this ruling goes. So we could theoretically end up with the same thing that happened in Britain where the exception is basically meaningless because churches/mosque/synagogues can be forced to hire all kinds of people for every position except the actual head guy at the church/mosque/synagogue.

I guess we'll see.

Unknown said...

Andrew: But the high court did go out of its way to address the issue of "called" teachers to distinguish them from lay employees. They also cited the long history of the "ministerial exception" affirmatively, thereby making it clear that the ruling covers many more employees of a religious institution than just the priest, pastors and rabbis. In this case, once the school/church decides that the job being done requires "ministerial capacity," the civil authority cannot interfere. Obviously in this case, the church (which hires many non-Lutherans for other tasks) would have a hard time arguing that a janitor is serving a ministerial function, but it's pretty easy with "called" teachers.

The First Amendment is the trump card that the British lack. Their constitution is a creature of the legislature, and can be modified by legislative act. Despite what the Obamists and other liberals think, our Constitution is a foundational document which can only be altered by the States and the people thereof.

Individualist said...


While I like the spirit of the decision I wish there was another exanple.

This court case seems somewhat needless. If she is going on disability leave what does it matter if she returns to work or not. Won't she still be paid. The only thing I can think of is that the disability is not as much then it would make sense.

The opther problem I have is even under the ADA doesn't it have to be possible for the individual to perform their job. I know the company has to pay to give them what they need. Braile and talking computers for the blind etc but in this case if she can't stay awake how can she teach.

I don't know the law as well as you so I guess I am confused.

T-Rav said...

It takes a lot for the Supreme Court to reach a 9-0 decision on anything, so this must have seemed pretty clear-cut.

That Michigan teacher ought to be ashamed of herself. No matter her medical problems, that is not the way a member of the church conducts oneself. Her conduct in this seems to me inexcusable.

Unknown said...

Indi: Depending on the applicable state and federal law, disability is somewhere between one-half and two-thirds of regular income from the job. Also, the doctors had already determined that after a regimen of therapy and medication, she would no longer be able to claim disability.

The ADA is another example of good intentions gone wrong and government legislation gone mad. It was designed to prevent genuine discrimination against those whose disability does not disqualify them from performing their ordinary job duties or taking a new job that their disability does not hamper. The largest majority of ADA claims involve almost everything except those categories.

The importance of this case is that the church itself decided that she could not properly continue her ministerial duties. The EEOC decided otherwise. The Court came down on the side of the church having the sole power to make that determination. As I pointed out, if the church had made the decision that she could not carry out ordinary teaching duties, or janitorial duties, the result might have been different. But the church acted, and the court ultimately decided the case solely on religious protection grounds.

Lawyers and judges have to perform a little act called "distinguishing the case." They must look at a set of facts, then determine if they fit into the narrow arguments brought before the court or are subject to broader general law. Your assessment of the case and ADA rules would be correct in general, but for the single fact that the church made its final decision solely on religious grounds, thereby nullifying all the usual applications of the ADA.

tryanmax said...

I too am confused as to why they didn't just go the ADA route and claim there was no reasonable accommodation. It feels like there's a piece missing. The woman must've filed a wrongful termination suit at some point?

That said, I'm glad they went the route they did because of the outcome.

Unknown said...

T-Rav: I think the decision should have been both obvious and unanimous. But given what I know about the jurisprudence of at least four of the justices, this unanimous decision surprised me. I've read the entire case, all the arguments, and some of the outside academic discussions of the case, and frankly I can see many opportunities for those four justices to have set an entirely different course. Though I am mystified by their unanimity, I am in total agreement with the holding.

I also didn't want to go all law school on everyone, so I'll just point out that three of the four liberal justices and one conservative (Alito) concurred in the result, but wrote separate opinions stating the grounds for their concurrences. That means that the principle (the ministerial exception) is cast in concrete, but the reasoning behind the holding was not quite as self-evident to them as it is to some of us.

Your assessment of her behavior is exactly the reason the church terminated her services and the high court upheld the church's position. But again, what makes this case important is that even if a great many people, even a majority of people under other circumstances might find the church's decision unreasonable and Perich's actions perfectly reasonable, it was up to the religious institution to make its own religious determinations. That holding is why I brought up the future litigation and legislation regarding gay marriage. Precisely the same legal/Constitutional reasoning would be applied.

Unknown said...

tryanmax: In any case where there is no religious institution and no religious determination made, reasonable accommodation would apply. But whether it was an ADA/EEOC claim or a wrongful termination suit (which Perich did threaten the church with), the holding would still be the same. The religious "ministerial exception" is the key in this or any case like it. Even in a wrongful termination suit, the ministerial exception would still trump the charge that the termination was wrong or unfair, or even retaliatory. Perich consulted several attorneys during the course of the EEOC matter, and it seems they told her the same thing. Quite simply, it's easier to win an administrative decision at the EEOC than it is in the formal courts.

tryanmax said...

Pardon me for continuing, but I just want to be sure I understand. So Perich was pursuing an EEOC claim just because she didn't want to be on leave?

Unknown said...

tryanmax: Yep. That's what launched the whole thing. She wanted to start back at work, the doctors had said "next school year" and the church decided it was too soon for her to be able to carry out her ministerial functions. Like many disputes, it started out small and took on a life of its own. She announced she was coming back, the church said "not yet," and the battle was joined.

Joel Farnham said...


Wow, sometimes the Supremes do understand that there are limitations to the powers of the government.

/Sarcasm on

I am shocked! Shocked that Kagan and that Wise Latina went along with it. Aren't they infamous secular feminists with delusions of god-hood? What will their spiritual sisters think when it comes out that they voted against their faith?

Oh boy. Liberal religious doctrine is at stake here. The very fabric of liberal religiosity might be unraveling before our very eyes!

/Sarcasm off ;-)

Unknown said...

Joel: This case was not only extremely important, but it involved opinions from justices that I never expected to see. Justice Thomas was consistent, saying "Churches have unfettered freedom to decide in good faith who is a minister, and courts may not second-guess that decision." The big surprise was Kagan joining in Alito's concurring opinion. Kagan and Alito went even farther than Thomas by offering an objective rather than a subjective standard: "What should the standard be? Not so much on being labeled a 'minister" (as was the standard for this Lutheran church), but what function the employee performs: Do you lead prayers, other religious rituals and teach the faith? If so, the government cannot tell a church who it must hire or cannot fire."

The Roberts majority opinion still left open the question of how courts should determine who counts as a "minister" for the purpose of Constitutional protection, though it did say that if the church says the person is a minister, he or she is a minister, and the courts may not question that. Kagan and Alito want to close that gap so that those performing religious functions are also covered by the ministerial exception, even if the church itself has not called the person a "minister."

"[For government] to pick and choose who can be a minister is not only to prevent the free exercise of religion, it inevitably involves the government in the establishment of religion."

T-Rav said...

On an entirely unrelated note, I see that Jon Huntsman is going to drop out of the race tomorrow and endorse Mitt Romney. This is frankly less surprising than the NYT obituary for his campaign, which claimed that it initially met with "soaring expectations." The article did not say by whom.

Unknown said...

OFF-TOPIC NEWS: Huntsman is withdrawing from the race, and throwing his support to Romney. At the same time on Fox, Geraldo Rivera is doing his usual hysterical attack on Romney for not revealing his technical Mexican heritage.

tryanmax said...

Does that mean that Romney might be our first Hispanic president? Finally, after all the injustice they've had to suffer at the hands of evil white Europeans.

Unknown said...

tryanmax: Romney should probably play that for all it's worth, but he hasn't mentioned his family's past in Mexico at all as far as I know. Geraldo went off on a rant, in Spanish, proposing what Romney should be saying. It was a little mad, and demonstrated that Geraldo still doesn't get the concept of the melting pot. What he proposed for Romney was that he say that he is a proud descendant of Mexican nationals (actually, they held dual citizenship as a result of fleeing from Utah which had just made polygamous marriage illegal, and some of the kids were born in Mexico). Geraldo's way of addressing it would result in getting the Hispanic vote and alienating the entire rest of his base, and then some. God save us from the open borders/birthright citizenship crowd.

T-Rav said...

Has Geraldo Rivera ever not been hysterical about anything? I mean, really.

Unknown said...

T-Rav: True enough. But he usually says hysterical things somewhat calmly. When it comes to immigration reform, he practically jumps up and down and his voice goes up two octaves.

rlaWTX said...

about this case - wasn't part of the reason that the school decided that she could not serve her "ministerial" duties because they adhere strongly to the "don't sue" portion in Matthew? I read somewhere that she had signed an agreement to their beliefs and it included "don't sue", so when SHE decided to bring in the EEOC and a lawsuit, she broke the agreement and her "terms of call" (that's what the PCUSA calls it).

If I am accurate with the facts, then this allows churches to not only hire/fire, but also keep established requirements of behavior, right?

Unknown said...

rlaTWX: You should be an ecclesiastical lawyer. That is exactly right. The church is an affiliate of the Lutheran Church, Missouri Synod. Unlike the Evangelical Lutheran Church in America, LCMS is very scripture-oriented. That concept is built into all their "called" contracts. Interestingly, though, the Supreme Court made note of it, but still held that it doesn't matter why they make a ministerial decision, so long as it is religious-based rather than civil-based. In other words, they actually went even farther than what the church was arguing. That means that if another church were to have to deal with the issue, they would win even if it was a simple church authority decision without specific reference to a term of the contract. That's a big deal.

Unknown said...

FULL DISCLOSURE: I was a member of several Lutheran synods over the years of consolidation into the ELCA. Each time there was another synod swallowed up by the ELCA, doctrine was watered down to accommodate the former distinctions between the synods. I finally said "enough" and took membership in an LCMS church. Oddly, though, that was not a determining factor in why I became fascinated with this particular case. The principles announced by the Supreme Court would just as easily apply to ELCA Lutherans, Baptists, Methodists, Presbyterians, as well as Jews and Muslims.

rlaWTX said...

thanks, I think?

I work for a PCUSA church, and the various legal battles of the mainlines are interesting... Mostly over property rights, but Terms of Call could get into the fray with the various sides scuffling these days.

another reason that particular part caught my attention (the "Don't sue" part): when I was in high school my dad's church was granted some money from a disbanded church. a "christian" school up north sued us for the money (RE: parameters of the gift & if no grant was made within certain time period, money defaulted to this school) - without any warning, no "let's talk about it". Stressed my folks to no end, but had a good lawyer who was working with them. Finally got to court, directed verdict from judge on about day 2 in our favor & school paid legal fees. (I still think the idea of directed verdict is interesting - instead of just deciding the school's suit was pointless and tossing it, the judge told the jury what their decision was to be.

Unknown said...

rlaWTX: The more "congregational" a church is, the less likely the courts are to interfere. As the big denominations consolidated, the more leadership and accompanying doctrine became top down. The Catholic Church has always been that way, but it has shown up in many of the mainstream Protestant denominations (ELCA,, United Methodists, your own PCUSA) with consolidation and "ecumenism." Future litigation may end up being centered on whether the individual church or church school actually has the power to determine its own standards of "ministry." It will be a tightrope for the courts, because doctrine will have to be ruled on, even though the courts will be highly reluctant to do so.

The Episcopal Church is suffering from many lawsuits as local congregations withdraw from the American communion and either go independent or join up with the southern hemisphere Anglicans. The courts still don't involve themselves deeply in doctrinal issues, but "who owns what" is costing that particular Christian community considerable grief and money.

Each state has its own procedural rules, but the majority allow judges to "direct verdicts" once a jury is impaneled, evidence and testimony taken, and the judge decides that one side or the other is simply not producing a viable case. This procedure is usually used after a judge has determined that there is "a sufficient cause of action upon which relief can be granted," but after trial commences, one of the parties simply fails to produce anything that would prove its case.

An even more interesting court procedure is the "judgment N.O.V. (non abstante veredicto)." In those cases, the jury renders a verdict that is entirely inconsistent with the facts, evidence and testimony. The judge simply renders a decision "notwithstanding the verdict" and enters an opposite order. Needless to say, in both cases, appeal is available.

Unknown said...

One interesting consolidation is the United Church of Christ. It is comprised largely of former separate conservative Protestant denominations following the Lutheran and Reformed traditions, most notably the Congregationalists who fiercely defended the right of each congregation to make its own decisions. As the unification continued, traditional doctrine was abandoned, and today includes such strange members as Jeremiah Wright's black liberation UCC church in Chicago. But it retains much of its congregational nature. So if Jeremiah's successor fired a pastor or "called" employee for criticizing "God damn America," the court would have no choice but to uphold the termination. I think that comes under the heading of the doctrine of unintended consequences.

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