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As in many cases that touch on religion, Supreme Court justices seemed divided today as they considered the case of a fired Missouri-Synod Lutheran elementary teacher classified as a "commissioned minister." But they seemed to agree that there's no easy, uniform principle that would allow church employees to seek redress in the courts without entangling the courts in questions of religious doctrine.

"This is tough and I'm stuck on this," Justice Steven Breyer said. "I don't see how you can avoid going into religion to some degree. You have to decide if this is really a minister, for example, and what kind of minister. That gets you right involved. Or if you're not going to do that, you're going to go look to see what are their religious tenets? And that gets you right involved. I just can't see a way of getting out of the whole thing."

In June 2004, Cheryl Perich fell ill at a church golf outing and was hospitalized. She took a disability leave of absence and was finally diagnosed with narcolepsy in December, halfway through the next school year. She told the school that she wanted to return to work in February, but the school principal said that a long-term substitute had a contract through the end of the year and that she was concerned about the safety of the students. The principal and school board also began making plans for a "peaceful release proposal." Perich declined the offer and showed up for work when her doctor released her and her medical leave ended. She was sent home and told that she'd likely be fired. When she threatened to sue, the church "rescinded her call."

Douglas Laycock, a University of Virginia law professor who represented the church, argued that Perich violated the church's teachings by threatening to sue, and that the church is clearly covered by the "ministerial exception" to the 1964 Civil Rights Act. While "there will be line-drawing problems" about who counts as a minister, he said, "here I think it's very easy. She's a commissioned minister in the church. She holds ecclesiastical office. She teaches the religion class."

Perich's lawyer, Walter Dellinger, argued that it's not so simple: "She was not a minister and the principal reason is she carries out such important secular functions in addition to her religious duties." (This, along with the fact that the school did not reference church doctrine during the termination process, was the basis for the 6th U.S. Circuit decision reinstating Perich's lawsuit.)

"I'm sorry to interrupt you, but that can't be the test," said Chief Justice John Roberts. "The Pope is a head of state carrying out secular functions, right? Those are important. So he is not a minister?"

The question of who counts as a minister has loomed large over the case—it's the reason that some legal scholars have called it one of the most important religion cases in a generation.

Laycock allowed that secular courts do have some jurisdiction to determine who is a minister, and suggested that a church can't simply declare all of its participants ministers as a pretext to avoiding government intrusion.

"The fact that you're expected to witness to the faith when the occasion arises doesn't make you a minister," he said. "We think there should be deference to good faith understandings. But we are not arguing for a rule that would enable an organization to fraudulently declare that everyone is a minister when it's not true."

It was difficult to say precisely how many of the justices were willing to grant that Perich was, indeed, a minister. The split came more over how broadly the ministerial exemption should apply. Within the first moments of questioning, Justice Sonia Sotomayor asked whether a church should be allowed to invoke the ministerial exception in the case of "a teacher who reports sexual abuse to the government and is fired because of that reporting." It's not a pure hypothetical, she said. "Now, we know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and I believe children."

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October (Web-only) 2011, Vol. 55

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