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.