A case pending before the U.S. Supreme Court could significantly alter how much freedom religious colleges have to skirt antidiscrimination laws in dealing with their employees.
At issue in the case is the somewhat ill-defined legal doctrine of “ministerial exception,” which holds that the courts should not interfere with religious institutions’ decisions regarding employees with religious duties, such as priests.
The Supreme Court, which is scheduled to hear the case on October 5, has never ruled on the legitimacy or limits of “ministerial exception.” But most federal appeals courts, and many state courts, have long embraced it as rooted in the First Amendment’s clauses protecting religious freedom. They have generally abided by it in dealing with disputes between religious institutions and rabbis or clergy members, although they have been somewhat split on how to apply it in cases involving employees without religious titles.
The case pending before the Supreme Court, known as Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (No. 10-553), involves a conflict between a now-defunct religious elementary school and a teacher it had fired. Even so, many of the organizations that have weighed in on the dispute have voiced concern that the court’s eventual ruling, expected by the summer of 2012, could significantly affect the operations of all religious institutions, including colleges.
Lawyers for the Obama administration, for example, have filed a brief on behalf of the EEOC warning that a ruling giving religious institutions a broad right to declare themselves exempt from antidiscrimination laws “would chill employees’ ability to invoke their rights.”
More than 60 professors of law or religion at American higher-education institutions have submitted an amicus curiae, or “friend of the court,” brief similarly arguing that “the ministerial exception has breathtaking implications for denying the civil rights of employees of religious schools and institutions,” including the nation’s roughly 900 religiously affiliated colleges and universities.
On the other side of the debate, the Council for Christian Colleges and Universities, which has 109 members and 28 affiliates in the United States, has submitted an amicus brief urging the justices not to let the federal courts get involved in determining which employees of religious institutions should be classified as ministerial. “Such questions,” the council’s brief argues, “are the very type of entanglement with religion that the ministerial exception was created to avoid.”
Counting the Hours
The former teacher at the center of the case, Cheryl Perich, came into conflict with the Hosanna-Tabor church, in Redford, Mich., in January 2005 after taking sick leave and being diagnosed with narcolepsy. She had sought to return from leave to her teaching job, assuring her managers that her disease had been brought under control with the help of medication. But officials of the church, which is affiliated with the Lutheran Church—Missouri Synod, pressed her to resign, saying they were unconvinced she could carry out her duties and did not want to have to remove the teacher hired to replace her.
When Ms. Perich refused to resign and threatened legal action, church officials accused her of being insubordinate and conducting herself in a manner that violated the church’s teachings about resolving disputes internally, rather than through the courts. She was fired that April, and, the following month, filed a complaint with the EEOC accusing the school of violating her rights under the Americans With Disabilities Act by discriminating and retaliating against her.
The federal district court that took up the case sided with the church after accepting its argument that Ms. Perich was a ministerial employee. In reversing that decision in March 2010, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit undertook a detailed examination of Ms. Perich’s responsibilities. It noted that she taught 30-minute religion classes four days each week, and attended chapel with her class once a week for 30 minutes. But, it concluded, during the rest of the week she “taught secular subjects using secular textbooks commonly used in public schools,” and nothing in the court record indicated that the church relied on her to indoctrinate students in theology.
Holding that determinations of which employees fall under the ministerial exception should be based on those employees’ primary duties, the appeals panel said the district court had erred in rejecting Ms. Perich’s claim under the disabilities act. “The fact that Perich participated in and led some religious activities throughout the day does not make her primary function religious,” its ruling said. Asserting that the intent of the ministerial exception “is to allow religious organizations to prefer members of their own religion and adhere to their own religious interpretations,” the appeals panel rejected the church’s argument that the exception precluded the courts from taking up Ms. Perich’s claims related to disability.
Sacred or Secular?
Hosanna-Tabor’s lawyers argue in a brief submitted to the Supreme Court that Ms. Perich was fired for violating church rules, and that the courts cannot take her side without becoming entangled in a religious dispute, interfering with the church’s ability to determine who teaches its faith, and delving into the religious question of what constitutes a ministerial function.
The Council for Christian Colleges and Universities argues in its amicus brief that the group’s members reject “the Sixth Circuit’s view that there is a distinction between sacred subjects and secular subjects” taught by employees of such institutions. Instruction at such colleges “demonstrates how religious faith is exercised in all subject matters,” not just those that are explicitly religious, the council’s brief says.
“These institutions,” the brief argues, “have a real commitment to integrating faith into the subjects they teach; the concept of faith integration is not a subterfuge to take advantage of the ministerial exception.” Determining whether a particular class is a secular activity, it says, requires the court to examine the curriculum, to investigate what the professor discusses, and to assess whether the professor’s instruction is consistent with the intent of his or her employer, and otherwise invite “the very type of entanglement with religion that the ministerial exception was created to avoid.”
“At the college level, even a professor who devotes 100 percent of his time to teaching mathematics or theater might rightly be viewed as having a ministerial role, if the college’s mission statement or his job description tasks him with spreading the faith or with educating students in how that faith applies in the context of those particular subjects,” the brief says. The courts’ determination of when to apply a ministerial exception should take into account the institution’s stated mission, and not be based on some sort of quantitative analysis of how an employee’s time is spent, it says.
Applying ministerial exception does not strip the faculty members of religious colleges of their rights, the brief argues, because those who disagree with their institution’s employment decisions have access to grievance and appeal processes.
Worldly Protections
Ms. Perich’s lawyers argue in their brief to the Supreme Court that the sort of immunity from federal intervention sought by Hosanna-Tabor “would leave hundreds of thousands of teachers without the protection from discrimination and retaliation that Congress intended to afford them.” It would allow religious organizations to discriminate against any employee who performs an important religious function, and leave the employees of such organizations “unprotected against retaliatory dismissals” for activities such as reporting health violations or sexual abuse, or fighting for better pay. “Nothing in the right of free association—or, indeed, in any right under the Religion Clauses—grants religious organizations such a sweeping exemption from neutral and generally applicable antidiscrimination laws,” the brief says.
The Obama administration’s brief argues that the sort of broad exception to the disabilities act sought by Hosanna-Tabor “would critically undermine” the protections offered employees by a wide variety of federal laws. “The constitutional issues that can arise in litigation between religious entities and their employees are best resolved on a case-by-case basis,” it says. If, the brief argues, the court does decide to adopt a categorical exception to federal laws for cases dealing with religious institutions’ employees, it should be limited only to employees “who perform exclusively religious functions and whose claims concern their entitlement to occupy or retain their ecclesiastical office.”
Although there might be cases in which the right to expressive association trumps an employment discrimination claim against a religious organization—such as a case involving a legal challenge to a church’s practice of ordaining only men as ministers—Hosanna-Tabor did not offer any evidence that Ms. Perich’s dismissal was necessary to express some religious message, the brief says.
The amicus brief submitted by more than 60 professors of law and religion argues that the Supreme Court should do away with the ministerial exception, which already has been applied by the courts in several lawsuits, mainly involving gender discrimination, brought by employees of colleges and universities. The professors argue that the Constitution’s clauses dealing with religion do not require that such an exception be applied, because the Supreme Court has held that laws that are neutral on matters of religion, such as the disabilities act, do not violate the clause protecting free exercise of religion even if a religion is burdened by them. The ministerial exception, they say, “creates a lawless zone.”
Among the other groups that have weighed in on the case, several religious organizations, including Loma Linda University, which is Seventh-day Adventist, have filed an amicus brief arguing that the courts should defer to religious organizations in determining which employees’ positions are ministerial.
Several professors and scholars of antitrust law have submitted an amicus brief cautioning the court not to define the ministerial exception in ways that will enable religious associations to cite it in imposing cartel-like restraints on their labor market.
