Supreme Court recognizes ministerial exception in discrimination laws

In what the New York Times hailed as its "most significant religious liberty decision in two decades," the United States Supreme Court ruled unanimously that religious institutions have the freedom to handle the employment of their leaders without involvement of the government, negating the federal employment discrimination laws.

The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, was decided on Jan. 11 and centered on Cheryl Perich, a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School.

Perich, until her diagnosis of narcolepsy, taught both secular and religious subjects at Hosanna-Tabor.  In 2004, Perich took a leave of absence for disability, but, when cleared by her doctors to resume her duties in 2005, she found the school had already replaced her, even though she had refused a severance package.  

According to a New York Times article, when Perich informed the school she was being represented by counsel, she was terminated because she violated religious doctrine by pursuing litigation, instead of resolving the problem within the church.  

Christopher ‘Scott' Peters, associate professor of political science at the University of Northern Iowa, explained the ruling showed the court's view "that in order to control their religious doctrines and teaching, churches have to have control over who they recognize and employ as ministers."

"The court said that it is crucial to the exercise of religion and that it trumps the state's interest in non-discrimination," Peters said.

Peters said it is hard to determine what effect the case will really have.

"There have been other cases over the years that have said similar things," Peters said.  "The overall effect of the decisions will hinge subsequent cases defining who is a minister and who is not."

He said the effect depends on "how much leeway the churches are given."

Referencing historical documents such as the Magna Carta, where King John agreed that the church "shall be free, and shall have its rights undiminished and its liberties unimpaired," John Roberts, Chief Justice of the Supreme Court, wrote that the court recognizes ministerial exception, according the original case document.  

"The members of a religious group put their faith in the hands of their ministers," Roberts wrote in the document. "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."

Roberts said "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."

He said, though the court agrees ministerial exception should not only apply to the heads of religious congregations, they are "reluctant, however, 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. Peters said Clarence Thomas, an associate justice on the U.S. Supreme Court, wrote a concurring opinion that goes even further than the opinion of Roberts.  

Thomas said courts should "defer to religious organizations' good-faith understanding of who qualifies as a minister."

"The question whether an employee is a minister is itself religious in nature, and the answer will vary widely," Thomas wrote. "Judicial attempts to fashion a civil definition of ‘minister' through a bright-line test or multifactor analysis risk disadvantaging those religious groups whose beliefs, practices and membership are outside of the ‘mainstream' or unpalatable to some."

Samuel Alito and Elena Kagan, associate justices of the Supreme Court, wrote another concurring opinion that grappled with the issue of who exactly is a minister and how it would apply more broadly.

In his opinion, Alito wrote, "virtually every religion in the world is represented in the population of the United States."

"It would be a mistake if the term ‘minister' or the concept of ordination were viewed as central to the important issue of religious autonomy that is presented in cases like this one," Alito wrote.  "Instead, courts should focus on the function performed by persons who work for religious bodies."

Peters said their view is "only recognizing someone as a minister if those duties are integral to the mission of the church."

"If the church's ability to hire or fire a particular individual would harm the mission of the church, that person should be considered a minister," Peters said.

A pastor's perspective

Kevin Wilkening, senior pastor at Cedar Heights Baptist Church in Cedar Falls, said, though he appreciates the court's acknowledgement of the historical context of the first amendment, religious institutions "already have this freedom."

"The question was whether it was going to be taken away," Wilkening said. "Thankfully, we don't have to worry about that today."

Wilkening said it was difficult to determine what exactly constitutes a minister.  He said though he was ordained clergy, not every denomination requires ordination exams.  He said teachers of religious doctrines should be covered by ministerial exception as well, but the U.S. is going to have to leave it to later times to "determine the definition of religious doctrines."

Wilkening said he is concerned the "church somehow will think it can now discriminate."  

He said, however, the "Gospel does not allow it."

Wilkening referenced Micah 6:8, which says, "He has shown you, Oh man, what is good.  And what does the Lord require of you, but to do justly, to love mercy, and to walk humbly with your God."

According to Wilkening, this verse, among many others, forbids any sort of discrimination.

"How can we say, as Christians, that we don't want a black man, a Hispanic man, an Asian man, to shepherd our souls," Wilkening said.  "I don't understand why we would exclude people on that basis."

"You should never fire someone because of a disability," Wilkening continued.  "But if your disability keeps you from accomplishing your task, what should be done?"

Wilkening said the New York Times article about the ruling, written by Adam Liptak, talked about the ramifications of sexual harassment in a religious workplace.

"The Church would be on the forefront in not allowing sexual harassment," Wilkening said.  "This ruling does not stop churches from reporting criminal activities."

He said churches should be "protecting the ones who can't protect themselves."

"The Gospel compels us to be for people," Wilkening said.  "We cannot allow sexual harassment, or any other criminal activity, to go in the church and say we're living the Gospel.  It's not redemptive or restorative or us looking like Jesus."

Wilkening said religious institutions should, however, be allowed to remove individuals who are living in sin, according to their doctrine, such as alcoholics or homosexuals in the Christian church.

He said if his congregation decided he was doing something he should not be doing, they could and should remove him; it comes straight from Robert's Rules of Order.  

"There was a concern that if the government looks over our shoulders the religious institutions across the nation would not be able to hire without the government second guessing their decision," Wilkening said.  "On the flip side, churches should be able to remove individuals who do not meet the institution's code of conduct or constitution."

A take from UNIFI

Corey Cooling, a member of the UNI Freethinkers and Inquirers (UNIFI), said he thinks "it is an interesting way for the case to come to the Supreme Court."

"In the church's opinion, their ‘problem' with her (Perich) is that she sought outside counsel with a problem she had with the church," said Cooling, a junior philosophy and physics double major. "I think that a church restricting its members to seek counsel under threat of expulsion is generally not a good idea."

Cooling said he believes it's not a good idea because it "creates an environment where if a person feels unable to resolve something within the church, they are going to be forced out for trying to defend themselves."

However, he also said it was "wholly necessary for church administrators to have the power to remove people from their positions if they aren't teaching whatever the official teachings of the church are."

On the other hand, Cooling also said he feels this ruling "enables a form of abuse of power for the church administrators."

Cooling questioned whether a science teacher in a Catholic high school could be fired for teaching evolution, even though their duties clearly do not involve religious teachings?

"There should be a definite distinction between employers whose role is to teach religious subjects, and those who do not," Cooling said.  "This rule should apply to those who teach religious topics."

He feels employees, such as a secretary or a janitor, "clearly have little to do with the religious aspects of running the church" and should get the same protection as other Americans.

Cooling said he believes the ruling would have a negative impact if someone with a "legitimate disability could be fired from their job."

"Because of ‘ministerial exemption' they would be unable to seek compensation because the church doesn't have to play (by) the same rules as everybody else," Cooling said.

"I think a religious institution, if any institution, would be the most understanding and forgiving about this, rather than firing somebody," he added.  "Normal employees don't have to worry about this."

Cooling said this was a "tough" case.  

"I don't think the government should force religious institutions to comply by discrimination laws because if somebody wanted to found a church on the belief that one race is better than another, which is their right, the government can't interfere with the free exercise of that religion," Cooling said.

When asked his thoughts about churches and other religious institutions removing people they consider to be living in sin, such as homosexuals or alcoholics, Cooling said a "minister of a church should be an example of the doctrine of that church."

"However, I feel that employees of an institution should be free to do what they want in the privacy of their own homes without fear of being fired by their employer," Cooling said.  "This gets complicated when a church employs people.

"Ministerial exception should be for cases related directly to breaches in the doctrine of that religion, and only for those who are in a capacity to potentially affect others," he added.  "I understand the importance of religious institutions having control over their religion, but I don't think that power extends to the suspension of protections for employees of religious institutions."