One of our most time-honored responses to a perceived injustice is to exclaim that “there ought to be a law!”  Often, or at least sometimes, legislatures oblige.  So do judges, who are, after all, human.  They respond indignantly to injustice, just like the rest of us and, what‘s more, they are, or at least think they are, in a position to do something about it.

That brings me to a case the Supreme Court agreed to hear last month, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  The case involves a complaint filed by a former teacher at the school, Cheryl Perich, who was fired after she attempted to resume work after a disability leave.  The facts recited by the appellate court, which found for Perich and the EEOC, certainly do not make the school leadership look good.  Absent any further consideration, I’m tempted to fall into my “there ought to be a law” mode and to be grateful that there, indeed, is a law, the Americans with Disabilities Act, to deal with employers who seem to be behaving badly.

But as my friend, Notre Dame law professor Rick Garnett, argues, there’s more at stake in this case than merely the resolution of an employment discrimination and disability claim.  Courts have long recognized that the religious freedom guaranteed by the First Amendment insulates at least some church employment decisions from government scrutiny and second-guessing.  This is the so-called ministerial exception, which represents judges’ recognition that courts are not and ought not to claim to be competent to resolve matters of internal church governance.  Matters of doctrine and church polity ought to be beyond the reach and ken of judges.  Thus where “ministerial” employees are concerned, the ordinary rules governing employer-employee relations ought not be applied.

Well, in this case, Cheryl Perich was regarded by the church and school as a “called teacher” and “commissioned minister,” which would seem to qualify her terms of employment as falling under the ministerial exception.  The federal district judge saw this and found for the church in her complaint.  But the appeals court engaged in what amounts to bean counting, observing that she spent many more hours a week teaching secular subjects than she did in her explicitly religious duties.  By that measure (regardless of what the church said or her status under its rules), she was not a ministerial employee and the church was not protected by the ministerial exception.  In other words, the judges know better than do the church authorities what it means to be a minister in this church and school.

This is precisely the kind of circumstance which the ministerial exception, and indeed the First Amendment free exercise clause was intended to guard against.  Without knowing all the details of the case, I’m inclined to feel sorry for Cheryl Perich and to wish that she and her erstwhile employer had been able to resolve this dispute amicably, within the garden of the church, protected from the wilderness of the state.  But I’d hate for the EEOC and the appellate court to have the last word in this case, because that would mark a great abridgement of our religious liberty, of the freedom of churches to govern themselves and to decide who shall be a minister and how he or she shall serve.

My friend the law professor said it much more eloquently than I can:

To be clear, the ministerial exception is constitutionally required and valuable, but it does not rest on assumption that religious institutions and employers never behave badly. Certainly, they do. Its premise is not that churches are somehow “above the law.” They are not, and should not be. Its point is not “discrimination is fine, if churches do it.” It is, instead, that there are some questions secular courts should not claim the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach, and some relationships — such as the one between a religious congregation and the ministers to whom it entrusts not only the “secular” education but also the religious formation of its members — that government should not presume to supervise too closely.

I’ll let him have the last word.  Let’s hope that a majority of the Supreme Court agrees with him.

Tags: constitution, freedom of religion, justice, religious freedom, secular

This entry was posted on Tuesday, May 3rd, 2011 at 4:05 pm by Joseph M. Knippenberg and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.