After almost forty years of courts, lawyers and law enforcement, I can usually make sense of Supreme Court decisions without too much head scratching. But the ruling in the discrimination case that federal Equal Employment Opportunity Commission brought on behalf of Cheryl Perich against Hosanna-Tabor Evangelical Lutheran Church and School was almost impossible to understand. It involves which employees at a religious establishment can file discrimination charges against their employer.
The facts of the case are these: Cheryl Perich was hired by the Hosanna-Tabor Evangelical Lutheran Church and School as a temporary lay teacher. She was promoted to a “called” teacher in 2000 by a vote of the congregation and hired as a commissioned minister. She taught both secular and religious classes and occasionally led chapel services. In 2004, she developed narcolepsy, a condition in which the victim develops periods of extreme sleepiness every three to four hours during the day. Narcoleptics can literally fall asleep standing up. Perich was on disability leave during diagnosis and early treatment, but when she tried to return to work, she was told that a substitute had been hired for her position for the school year and she could not have her job back. She filed a complaint under the Americans with Disabilities Act, and was promptly fired. The church also removed her from their ministry.
Now, the church has claimed the “ministerial exemption” to the ADA, which says that churches have the right to hire and fire ministers. Perich claims that her case does not qualify because she is primarily a teacher, not a minister.
The Court ruled in the church’s favor, but then things got weird. First of all, this court, which is supposed to be a bastion against the “activist judge” problem of liberal judges, just established the “ministerial exception” to the ADA and all other labor laws. And then, in the ruling written by Chief Justice John Roberts, they basically said, we don’t know a secular employee from a religious one, but we’ll know one when we see one. Say what?
The “ministerial exception” has been floating around the lower courts for a while now. It is based on the premise that the Constitutional separation of church and state exempts religious employees of religious establishments from the labor laws, because the First Amendment shields churches from interference by the government.
Robert wrote for the unanimous decision that “We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister. It is enough for us to conclude, in this, our first case involving the ministerial exception, that the exception covers Perich, given all the circumstances of her employment.” Roberts wrote that allowing fired clergical employees to sue under labor laws “…interferes with the internal governance of the church, depriving the chruch of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”
While the attorneys for Hosanna-Tabor were heralding the decision, Rev. Barry W. Lynn, executive director of Americans United, had a lot of reservations. “Clergy who are fired for reasons unrelated to matter of theology – no matter how capricious or venal those reasons may be – have just had the courthouse door slammed in the faces,” Lynn told the press.
The worst case scenario would be a church classifying employees as ministers to protect themselves. Then, a person who is sexually harassed would have no recourse in the law if fired for resisting that harassment. Without a definition of what constitutes a minister, the ruling can be abused to protect predators who are senior clergy. The Court said that the Appeals Court that ruled in Perich’s favor was wrong to weigh the time she spent in her secular duties against the very limited time spent on “ministerial” duties, specifically teaching a religion class that is also taught by lay teachers who are not classified as ministers. A church could argue that licking stamps for a church mailer was a “ministerial duty” or delivering meals to the house-bound. Step back into history and one can find an enormous range of “ministerial duties” done by a local parish’s clergyman.
It is sort of hard to understand the implications for this ruling unless one is familiar with the broad range of how churches get their ministers and how they define their ministers.
The “ministerial exception” was designed to protect churches from being forced to accept a minister who is incompatible with the church. But, there are churches that use the term “minister” for people other churches would consider teachers or office workers or counselors. Since various churches have differing ideas of what is a minister, this ruling invites repeatedly revisiting the issue.