Exceptional Power: Supreme Court Says 'Ministerial Exception' Trumps Civil Rights Laws When Religious Organizations Hire Clergy

Article excerpt

Cheryl Perich was on a golf outing with some friends in June of 2004 when she had an asthma attack - or so she thought.

At the hospital, a physician diagnosed her problem as narcolepsy, a condition that causes sufferers to unpredictably fall into deep sleeps, from which they usually cannot be roused. The doctor recommended that she slop working during treatment.

Perich, who taught at a private school run by Hosanna-Tabor Evangelical Lutheran Church in Redford, Mich., was granted leave. About seven months later, having undergone successful treatment for the condition, Perich tried to return to work.

Leaders of the Missouri Synod congregation told her not to bother. She had been replaced, and the school did not want her back. Perich believed that she was being discriminated against based on her medical condition and consulted with an attorney; in response, the congregation stuck by the termination, citing her decision to con-suit with con attorney and contemplate legal action against the school.

Claiming that she was retaliated against for exercising her rights under the Americans with Disabilities Act, Pencil sued. In just about any other employment context, she would have had a strong case. Federal law bars discrimination against people on the basis of race, sex, religion, national origin or disability.

But in Pencil's case, there was an important wrinkle: Many Lutheran churches allow instructors to seek a special designation known as a "called teacher." Such teachers may instruct in secular subjects but also have specific religious duties and are responsible for imparting faith and doctrine to their charges.

Perich had sought this designation. She had to earn it through six years of study. Thus, she was technically a minister, officials at her school argued. Perich disagreed with this designation, asserting that she spent most of her time teaching secular subjects.

The matter reached the U.S. Supreme Court, which sided with the school and found that Perich fell under the definition of "minister." And that made the difference. Although secular employers are barred from engaging in various forms of discrimination, religious organizations, thanks to court rulings, have been granted an out from these laws under a policy known as the "ministerial exception."

The ministerial exception isn't explicitly found in the Constitution. It was crafted by judges about 40 years ago, and its constitutionality had not previously been tested before the nation's highest court.

The Supreme Court's decision to hear Perich's case, therefore, was significant. And the ruling that resulted from it, a unanimous decision against Perich that upheld the ministerial exception, may eventually have widespread ramifications. Legal observers say it appears to be the first step in what might turn out to be a lengthy process as the court examines hiring and firing in religious settings.

In its Jan. 11 ruling, the high court held that when ministerial employees are involved, courts may not interfere in a house of worship's decisions about who to hire and fire - even if a firing wm motivated by issues that had nothing to do with religion.

"The interest of society in the enforcement of employment discrimination statutes is undoubtedly important," Chief Justice John G. Roberts wrote for the court. "But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."

Continued Roberts, 'The First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way."

But critics of the decision say the court went too far. Americans United for Separation of Church and State filed a friend-of-the-court brief in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission supporting the right of houses of worship to hire and fire clergy on the grounds of theology but arguing that this right should not extend to bias unrelated to religious belief. …