What’s More Important than Church Doctrine?

Can the justices decide an employment case without making religious decisions? Says Breyer: 'This is tough and I'm stuck.'

Ted Olsen|October 5, 2011 05:01 PM

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 When she threatened to sue, the church "rescinded her call."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."

"The government can do many things to force reporting," Laycock said. "If the government's interest is … protecting the children, then you can assess whether that government interest is sufficiently compelling to justify interfering with the relationship between the church and its ministers. But the government's interest is at its nadir when the claim is we want to protect these ministers as such, we want to tell the churches what criteria they should apply for selecting and removing ministers."

(Laycock added, "The one case I am aware of cuts the other way. A priest accused of sexually abusing children was fired, sued to get his job back, and the church invoked the ministerial exception and that case ended. They were able to get rid of him.")

Dellinger brought the child abuse example up as well. "The State's interest in allowing citizens to have access to its courts and to its agencies is paramount—in cases like child abuse, reporting of school safety problems and others."

"It's not paramount," Justice Antonin Scalia interrupted. A Catholic priest can't just sue if he gets removed from his duties for getting married, he suggested. Dellinger agreed. "The reason is there are ample doctrines to protect church autonomy. One is that under the Establishment Clause, there can be no reinstatement ordered by a court of someone into an ecclesiastical position."

Dellinger and Laycock were not the only lawyers arguing before the court in this case. Leondra R. Kruger, assistant to the U.S. Solicitor General, argued the government's anti-discrimination case. And, to the surprise of many justices, she argued that the First Amendment had limited, if any, application in the case. It's the right of expressive association that's at issue, Kruger argued. "We don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry. … We don't see that line of church autonomy principles in the religion clause jurisprudence as such. We see it as a question of freedom of association."

Justices Scalia and Samuel Alito were incredulous. But so was Justice Elena Kagan, who called the view "amazing."

But Kruger stood her ground, saying that the question wasn't about religious rights, but about the right to tell the government about illegal conduct. "The government's interest in preventing retaliation against those who would go to civil authorities with civil wrongs is foundational to the rule of law."

That government interest is even stronger, she said, than eradicating discrimination in the workplace—which is why she said that a woman could not sue over being excluded from the Catholic priesthood because of her gender.

"When you say that, are you not implicitly making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?" asked Alito. "You're making a judgment about how important a particular religious belief is to a church."

Not only that, said Breyer, "But then you have to say that it's more important to let people go to court to sue about sex discrimination than it is for a woman to get a job. I can't say that one way or the other, so I'm stuck."

The court is not expected to rule in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC until next year.

Related Elsewhere:

The Supreme Court site has the oral arguments transcript.

Christianity Today previewed the case in July.

On Monday Christianity Today noted the differences between Hosanna-Tabor and a religious employment case the Supreme Court decided not to consider, regarding World Vision.

More information on the case, including more analysis of the oral arguments, is available from SCOTUSBlog.