Supreme Court to weigh churches' hiring rights

September 29, 2011

WASHINGTON (RNS) The Supreme Court on Wednesday (Oct. 5.) will hear one
of most important religion cases in decades, centered on the degree to
which religious institutions should be exempt from anti-discrimination

The case started at a Lutheran elementary school in Michigan where a
teacher claimed she was fired in violation of the Americans With
Disabilities Act.

The question before the justices concerns the "ministerial
exception," a 40-year-old legal doctrine that protects churches and
other religious institutions from government interference in their
employment decisions.

Few would dispute that a religious congregation should be unfettered
when it chooses to hire or fire clergy. But what about other church

"Advocates for the ministerial exception argue that religious
institutions, in their hiring and firing, should be regulated as little
as possible," said Ira C. Lupu, a professor at The George Washington
University School of Law who specializes in church-state cases.

"On the other side are those concerned that a particular group is
cast outside the various protections of civil rights laws."

Cheryl Perich taught secular subjects and religion at Hosanna-Tabor
Lutheran School in Redford, Mich., and signed a contract as a "called
teacher," charged with advancing the religious doctrines of the
congregation that operated the school.

Her dispute with the school, which is now closed, began after she
fell ill in 2004, and took several months off to treat a chronic sleep
disorder. The congregation hired another teacher to take her place, and
asked Perich to resign. Perich, who had permission from her doctor to
return to work, threatened to sue and the congregation then voted to
fire her.

That employment decision was its prerogative, said attorney Luke
Goodrich, of the Becket Fund for Religious Liberty, which is
representing the church.

"The purpose of the ministerial exception is to protect the right of
religious institutions to choose their religious leaders," he said.

Because Perich was charged with imparting religious doctrine to her
students as a "commissioned minister," the ministerial exception
applies, he said.

Perich lost her first suit in federal court in 2008, but the
Cincinnati-based 6th U.S. Circuit Court of Appeals ruled in her favor
last year. Now the Supreme Court will consider the case, Hosanna-Tabor
Evangelical Lutheran Church and School v. EEOC.

The American Civil Liberties Union, which co-wrote a brief
supporting the government's side in the case, hopes the justices will
narrowly interpret the ministerial exception.

"While faith communities surely have the right to set religious
doctrine and decide which ministers best advance their religious beliefs
and practices, they shouldn't get a blank check to discriminate or
retaliate against their employees," said Daniel Mach, director of the
ACLU's Program on Freedom of Religion and Belief.

Perich should not fall under the ministerial exception, Mach said,
because her primary job was as a school teacher, not a minister.

"There's ample evidence in the case that Perich was fired because of
her disability and the assertion of her legal rights -- and not for any
religious or doctrinal reasons," he said.

One of the toughest questions facing the court, experts say, is
whether the government should be allowed to decide which employee duties
are "religious," and which are not.

The high court has never ruled on the ministerial exception, and its
decision will guide lower courts on whether to weigh more heavily the
rights of religious institutions or their employees.

"I'll tell you what makes this case really interesting," said Lupu.
"The last time the Supreme Court heard a case about internal church
disputes was more than 30 years ago. This makes for a certain amount of

Lupu said he'll be watching the court's three female justices, who
he says are not likely to favor a broad interpretation of the
ministerial exception because it could adversely affect the many women
who teach at religious schools. The church, then, would have to convince
five of the six male justices to see the case its way.

"A new and narrow interpretation of the ministerial exception is
certainly possible," Lupu added. "That would alter employment relations
in virtually every religious institution in the U.S."