Hosanna in the Highest Court

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC is probably the High Court's most important ruling on Free Exercise of Religion since Employment Division v. Smith (1990). Unlike Smith, however, Hosanna-Tabor seems not to be attracting much criticism.

Respondent Cheryl Perich was employed as a "called" teacher by Hosanna-Tabor Lutheran School. Called teachers are recognized as "ministers of religion" and can teach religious classes. Ms. Perich took disability leave due to an illness (narcolepsy). When she notified the school that she would soon be able to resume her duties, she was informed that she had been replaced and was offered a settlement in return for resigning from her post. She refused.

The first day she was medically cleared to return to work-Perich presented herself at the school. [The school principal, Stacey] Hoeft asked her to leave but she would not do so until she obtained written documentation that she had reported to work. Later that afternoon, Hoeft called Perich at home and told her that she would likely be fired. Perich responded that she had spoken with an attorney and intended to assert her legal rights.

Following a school board meeting that evening, board chairman Scott Salo sent Perich a letter stating that Hosanna-Tabor was reviewing the process for rescinding her call in light of her "regrettable" actions. Salo subsequently followed up with a letter advising Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich's "insubordination and disruptive behavior" on February 22, as well as the damage she had done to her "working relationship" with the school by "threatening to take legal action." Id., at 55. The congregation voted to rescind Perich's call on April 10, and Hosanna-Tabor sent her a letter of termination the next day.

Perich filed a charge with the Equal Employment Opportunity Commission, alleging that her employment had been terminated in violation of the Americans with Disabilities Act.

Here is the Supreme Court's unanimous decision, from the SCOTUS blog.

The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Moreover, because the respondent in this case was a minister within the meaning of the ministerial exception, the First Amendment requires dismissal of her employment discrimination suit against her religious employer.

This is a fine example of two forms of liberty in collision: freedom from discrimination in employment and free exercise of religion. The Court was certainly right to uphold the latter over the former in this case.

One of the fundamental aspects of religious liberty is the liberty to form a church and to organize it according to shared principles of faith without interference from the state. If the state could say who a church can or must ordain or who a church can or must defrock, that liberty would be destroyed. For that reason, the Court recognized a "ministerial exception" to employment discrimination laws.

Suppose, for example, a group of Native Americans organize a church (I use the term in the widest possible sense) around traditional native religious beliefs. Suppose that among those beliefs is that only members of a recognized tribe can belong to the church or serve it in any capacity including all paid positions. I hold that they would be well within their rights to do so. If I were able to sue their church on the grounds that they are discriminating against me by refusing to consider me for employment precisely because I am not a tribal member, that would be destructive of their rights under the Free Exercise Clause.

I gather that the Court was not willing to go as far as Justice Thomas. It might still be possible for me to sue if was employed by the church as a gardener with no religious duties. J. Thomas would bar that as well. However, the Court does seem to recognize that a church has complete authority to decide who is a minister or has a religiously important job. That probably means that their holding is as extensive as Thomas would have it in all practical effect.

On Slate's Political Gabfest, Emily Bazelon wondered whether the ruling in Hosanna-Tabor comes in conflict with the ruling in Smith. In the latter case, the court held that a law restricting a religious practice could survive free exercise scrutiny so long as it had a valid secular purpose and was generally applicable to persons regardless of religious identity.

Though interesting, the question is not difficult. The decision in H-T is narrowly targeted to employment discrimination laws. The Free Exercise Clause does not give persons a general immunity to the laws. It certainly does not allow a church to do whatever it wants to do to its members or clergy. Human sacrifice is still illegal as is female circumcision. Churches cannot arbitrarily seize the property of their members or imprison them, etc.

The free exercise of religion is among the most fundamental liberties protected by the Constitution. The Court was right to protect it in this case.

Comments

[larry kurtz]

Good post. If peyote can be upheld, is cannabis a protected sacrament, too, Ken?

[caheidelberger]

Thanks for pointing out the "called" aspect of the woman's employment. When phrased as a question of churches being able to decide who gets to serve as their own clergy, I can see the wisdom of the ruling. Extending it to gardeners and other secular(?) employees is a step too far.

But I wonder: is there room for abuse under this ruling? Does this ruling give churches cover to declare every one of their employees "ministerial" and thus remove their anti-discrimination protections? Couldn't I start the Church of Cory and declare that every person I hire, from my music director and theological research assistant down to my church bike rack polisher is in a position to represent and preach the Gospel of Cory to our congregants and seekers of truth? And then when I hear the janitor mention that he agrees with Ken Blanchard on Obama's lack of leadership, Boom! Fired!

Even Hosanna-Tabor doesn't seem completely cut and dried. It doesn't seem that Perich was fired for any religious reason. I can accept a church firing a gay pastor on the basis of their reading of scripture saying homosexuals can't be pastors. That's free exercise of religion. But was Hosanna-Tabor really exercising religion, or were they just mad at Perich for making having narcolepsy and making a stink? If that's the case, did the court wrongly apply "free exercise"... or is this firing like Fred Phelps shouting "God hates fags": one of the unpleasant but perfectly constitutional acts that we accept as a price of a strong First Amendment?

[Donald Pay]

Hiding behind Christian religion to do an decidedly anti-Christian act is pretty telling about the nature of this so-called "Christian" schools. They are nothing more than profit centers, using the First Amendment to hold people in virtual slavery, then discard them on a whim. These fake Christian "ministers" need to understand they aren't being "called" by God. They are "called" because this is a nice way for these profit centers to get around treating people with dignity. May the people associated with Hosana-Tabor Evangelical Lutheran Church obtain justice in the hell they are likely to go to.

[Ken Blanchard]

Larry: There is no good reason to ban the ceremonial use of peyote. That doesn't mean that this practice has constitutional immunity. That was the finding in Employment Division v. Smith. It's a judgment call. A state might, for example, allow ceremonial use of peyote for adults but not for children. It might do the same thing for communion wine. These are matters for legislatures.

[Ken Blanchard]

Donald: To say that religious schools are "nothing more than profit centers" is flamboyantly ignorant. Religious schools have long provided the poor with a better education than they could have received anywhere else. Those who established them and contributed to their establishment and maintenance did so because they thought that they were serving God and their fellow human beings. Far from being "profit centers" these schools have always been dependent on charity.

Recently a lot of Protestant religious schools have been established precisely because their founders didn't want their children taught such things as Darwinism. I have no sympathy for their anti-Darwinism at all, but I am not such a fool as to think that their motives involve profit.

The people who teach at these schools are, for the most part, answering a call. They are sacrificing a lot to serve God and their students. Your contempt for them condemns you, not them.

[Donald Pay]

Nah. Most of the anti-Darwinist effort is centered in the same motives as those selling snake oil. There are a lot of people out there eager to be sold snake piss. A lot of that "faith" is simply great marketing, building on the fears of rather stupid people.

[Ken Blanchard]

Donald: you set yourself in judgment of a lot of people about whom you know little or nothing. I think that makes you a left wing Archie Bunker.

[Jack]

Mr. Aversa,Your quote is out of context. The rceerfnee to ordination of women in the Catholic Church being something that the government cannot become involved in is a quote from the BRIEF IN FAVOR OF THE PLAINTIFF. So even the government recognized that this was not involved in the decision, even if it had gone for the plaintiff.This is a very important decision. It not only upholds the ministerial exemption, it effectively gives the Church and other religious entities the right to decide who is a minister and who is not. Even 45 minutes a day of religious instruction (see decision) is enough to be a minister and a stop watch cannot be used to determine a minister. Frankly, I did not think this one would ever fly: she was clearly fired because she was narcoleptic, not for a the remotest religious reason. WOW. This has really raised the wall of separation to a new height in a new (and good) way. The court has unanimously ruled out government meddling in any hiring of people even remotely related to the religious function of the group. It effectively overturned the Persons with Disabilities Act too for religious entities too, if the person was a minsterial. Wow.That this didn't involve the conscience question is irrelevant, this was not about that issue. After this decision and remember that the justices we Catholics rightly hate agreed with it I am looking forward to a conscience case. Even the Obama appointees understand that the First Amendment was intended to protect churches, not the government. Bring on the conscience cases!Oh, can I claim, Fr. Z., the credit for sending you the link? . . . . .