Ministerial exception isn’t a license to discriminate

Saturday, October 8, 2011

Questions of church autonomy, government intrusion and the right of workers to pursue anti-discrimination claims took center stage this week at the U.S. Supreme Court in the case of Hosanna-Tabor Lutheran Evangelical Church v. EEOC

The case concerns the application of the so-called ministerial exception to job-discrimination laws, which gives churches the freedom to hire and fire their own ministers without government interference. The exception has roots in both religious-liberty clauses of the First Amendment — establishment and the free exercise. As my colleague Charles Haynes writes, “Government does not have the competence — and should not have the power — to determine who is or isn’t called to ministry.”

But the Hosanna-Tabor case raises another important issue: How broadly can churches define the concept of minister to avoid the reach of anti-discrimination laws, such as the Americans with Disabilities Act of 1990?

The case involved a Redford, Mich., religious school that hired Cheryl Perich to teach kindergarten. The Hosanna-Tabor Lutheran Church school officials later promoted Perich to a “called teacher” — teachers who meet the teaching and religious expectations of the school — and who can only be dismissed for cause.

Perich apparently performed well until she developed a disability — narcolepsy — which forced her to take an extended leave of absence. She got better but was not allowed to return to her job. When she threatened to file suit under the ADA, she lost her job. The Equal Employment Opportunity Commission represented Perich in the litigation, saying Perich had a right to be free from retaliation for asserting rights under the ADA.

A federal district court dismissed Perich’s EEOC-backed lawsuit, citing the ministerial exception. But the 6th U.S. Circuit Court of Appeals reversed, noting that Perich’s primary duties consisted of teaching secular subjects, including math, language arts, social studies, science, gym, and music. The church argues that Perich performed enough religious duties to fall under the ministerial exception.

Now the case is before the U.S. Supreme Court. At oral argument, Virginia law professor Douglas Laycock, arguing for the church, said: “If you teach the religion class, you’re clearly a minister.” Under this view, because Perich performed some religious functions, she falls within the ministerial exception and loses the protections of the ADA and other anti-discrimination laws.

But, Leondra R. Kruger, arguing for the EEOC, said Congress has a compelling interest in enforcing anti-discrimination laws. She said she recognized that churches have First Amendment-based rights but asserted that “Congress has not unconstitutionally infringed Petitioner’s (Hosanna-Tabor) freedom in this case by making it illegal for it to fire a fourth grade teacher in retaliation for asserting her statutory rights.”

The Anti-Defamation League, in its amicus brief in support of Perich and the EEOC, writes: “A presumptively deferential view of the ministerial exception allows the exception to swallow the rights of countless individuals to be free from discrimination.”

The ministerial exception has constitutional roots and should provide protection for churches with regard to ecclesiastical matters. But it should not be used too broadly and eviscerate the job-related protections for thousands of workers — like fourth-grade teachers of primarily secular subjects.

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