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Working In These Times

Tuesday, Feb 7, 2012, 1:59 pm

Supreme Court Affirms Religious Exception Allowing Discrimination, Retaliation

BY Josh Eidelson

(Image via Shutterstock)  

Obama administration argued decision 'would critically undermine' Americans With Disabilities Act

In a unanimous ruling last month, the U.S. Supreme Court upheld for the first time a “ministerial exception” limiting the rights of some employees under the Americans with Disabilities Act. In the case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a church-run elementary school asserted that such an exception protected its decision to fire "called teacher" Cheryl Perich following her medical leave and threat to file an ADA lawsuit. Prominent organizations weighed in on both sides: The US Conference of Catholic Bishops, the American Jewish Committee, and the Muslim-American Public Affairs Council were among those filing briefs backing Hosanna-Tabor; the NAACP, People for the American Way, and the Anti-Defamation League backed Perich.

Perich's conflict with the Lutheran Church and School began in January 2005, when she told her principal that she was ready to return to work following a medical leave for narcolepsy. The principal questioned whether Perich was healthy enough to work, and told her that she had already been replaced. The church’s congregation, which is vested with decision-making powers, offered to pay a portion of Perich’s health insurance costs if she would voluntarily resign.

Perich declined the offer, and instead showed up at the school on the first day her medical leave was over, declaring she wouldn’t leave without a note documenting that she had shown up ready to work. According to the Supreme Court, when her principal told Perich the school was likely to fire her, “Perich responded that she had spoken with an attorney and intended to assert her legal rights.” A letter from the School Board Chairman to Perich charged that her “insubordination and disruptive behavior,” and “threatening to take legal action” had “damaged, beyond repair, [her] working relationship” with Hosanna-Tabor. Perich’s status as a “called teacher” was withdrawn in a congregational vote, and the school fired her.

The Equal Employment Opportunity Commission sued Hosanna-Tabor for violating the ADA’s prohibition on retaliation against workers for asserting their rights under the Act. A District Court sided with the church, citing past federal court decisions finding a “ministerial exception” which grants religious institutions discretion over who is hired or retained to do religious work. The Sixth Circuit Court of Appeals disagreed. It upheld the principle of the ministerial exception, but determined that it didn’t apply to Perich, because her job duties (teaching third and fourth grade) were mostly secular. The Appeals Court sent the case back down to the District Court for a ruling on the merits of the firing; Hosanna-Tabor appealed the case up to the Supreme Court.

In his majority opinion, Chief Justice John Roberts validated prior lower courts' precedent finding a “ministerial exception,” and ruled that it covered Perich. “Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so,” wrote Roberts, “intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” 

Roberts cited the First Amendment’s prohibitions on Congress making a "law respecting an establishment of religion, or prohibiting the free exercise thereof.” “Imposing an unwanted minister,” Roberts warned, would constitute “government involvement” in “ecclesiastical decisions,” and would violate “a religious group’s right to shape its own faith and mission through its appointments.”

Roberts’ opinion rejected the Appeals Court’s argument that the “ministerial exception” didn’t cover Perich, who had performed similar responsibilities for Hosanna-Tabor in the years before and after she was ordained by congregational vote as a “called teacher.” The Appeals Court had cited as evidence that Perich spent most of her time on secular teaching responsibilities, that the teacher brought in to replace her had not been ordained as a “called teacher,” and that “Perich’s employment duties were identical when she was a contract teacher and [later when she was] a called teacher.”  Roberts declined to issue a standard for assessing who falls under the exception for future cases, but cited Perich’s ordination, and her responsibility for some religious education, and for leading religious services twice a year, as evidence that the exception applies to her and thus leaves her outside the protection of the ADA.

Roberts’ opinion was joined by five of his fellow justices. Justice Samuel Alito, in a concurring opinion joined by former Obama Solicitor General Elena Kagan, agreed that Perich fell under the ministerial exception but set forth an approach to determing who else falls under it that puts less weight on ordination, because its meaning varies across religions.  Justice Clarence Thomas issued his own concurrence arguing that the Court should generally defer to churches’ view of which of their employees fell under the exception, because the act of weighing who is a religious employee itself infringes on the church’s religious freedom.

In its legal argument, Hosanna-Tabor explicitly identified Perich's mention of a potential lawsuit as cause for her firing. The church argued that firing Perich over threatening an ADA lawsuit was related to its religious mission because involving the ADA violated the Lutheran Church’s religious belief that such disputes should be handled internally. Perich charged that this argument, made after the firing, was an excuse. Roberts ruled that the ministerial exception would apply whether or not Perich's mention of a lawsuit was the reason for her termination.

In finding Hosanna-Tabor had the right to fire Perich, the nine Justices sided against the Obama administration, whose Solicitor General Donald Verrilli filed a brief supporting the EEOC. “Although it provided certain defenses for religion-based discrimination in employment,” wrote Verrilli, “Congress has provided no comparable defense for a religious entity that retaliates against its employees for invoking their rights under the statute.” Contrasting Perich's firing with a church's blanket refusal to hire female priests, Verrilli argued that Hosanna-Tabor “fails to demonstrate that dismissal of Perich was necessary to allow it to express any message…”

Verrilli cited the 1990 case Oregon v. Smith, in which it was a pair of employees, not an employer, invoking their First Amendment freedom of religion. The employees in Smith were both Native Americans denied unemployment benefits on the basis that they had been fired for using peyote, a drug which court have recognized to have ritual significance in their religion. In ruling against the employees, wrote the Solicitor General, the Court “held that the Free Exercise clause of the First Amendment does not provide a defense to those who violate neutral and generally applicable laws, even when their actions are based on religious belief…the ADA is just such a law.”  Roberts retorted that whereas the employees in Smith were engaged in “outward physical acts,” Hosanna-Tabor’s decision to fire Perich was "an internal church decision that affects the faith and mission of the church itself.”

Ruling in favor of Hosanna-Tabor, Verrilli argued for the Obama Administration, “would critically undermine the provisions of the ADA and a wide variety of other generally applicable laws…An exemption for religious employers would chill employees’ ability to invoke their rights under numerous statutes.”  Such logic, he wrote, “could easily be invoked as a justification for violating generally applicable laws forbidding retaliations against witnesses in civil or criminal proceedings.  No provision of the Constitution demands that result.”

A spokesperson for the Lutheran Church-Missouri Synod declined to comment, but in an interview with the Synod's newspaper, its president, Rev. Matthew C. Harrison, said, "The Court, in upholding the right of churches to select their own ministers without government interference, has confirmed a critical religious liberty in our country."

In an e-mailed statement, Rev. Barry Lynne, executive director of Americans United for Separation of Church and State, echoed the Solicitor General’s concern. “Blatant discrimination is a social evil we have worked hard to eradicate in the United States…” said Lynn.  “Clergy who are fired for reasons unrelated to matters of theology—no matter how capricious or venal those reasons may be—have just had the courthouse door slammed in their faces.”

Josh Eidelson is a freelance writer and a contributor at In These Times, The American Prospect, Dissent, and Alternet. After receiving his MA in Political Science, he worked as a union organizer for five years. His website is http://www.josheidelson.com. Twitter: @josheidelson E-mail: "jeidelson" at "gmail" dot com.

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