Ministerial Exception?
Stanley Fish offers a thoughtful assessment of the Hosanna-Tabor v. EEOC case recently argued before the Supreme Court.
A teacher in a school run by the Lutheran Church, Missouri Synod, (not the Evangelical Lutheran Church in America, which is the largest Lutheran body in the US,) was fired in what she contends is a violation of the Americans with Disabilities Act. The school responds that she had violated a “core Lutheran belief” by taking the matter to the courts at all. She was also deemed (the school contends) to be a “commissioned minister,” even though most of her duties consisted of teaching secular subjects.
The “ministerial exception” exempts churches from some state and federal employment statutes. Specifically, churches are exempt from the provisions of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of race, color, religion, sex, or national origin.(A standard example here is the Roman Catholic priesthood, which excludes women on theological grounds, not on grounds of competency.)
It’s a difficult situation. as Fish explains:
If the ministerial exemption is to have any bite, there must be a way of distinguishing employees central to a religious association’s core activities from employees who play only a supporting role (the example always given is janitors). But if the line marking the distinction is drawn by the state, the state is setting itself up as the arbiter of ecclesiastical organization and thus falling afoul of the establishment clause. And if the line is drawn by the religious association, the religious association is being granted the power to deprive as many of its employees as it likes of the constitutional protections supposedly afforded to every citizen. It is these equally unpalatable alternatives — this Scylla and Charybdis — that the justices find themselves between in oral argument. What a mess!
The LCMS finds itself in the (I hope!) unpalatable position of having to defend a firing in apparent violation of the ADA on grounds that, because it is a church, it gets to discriminate against the disabled. (The teacher in question has narcolepsy, apparently not to a degree which would make it impossible to fulfill her duties.) I find myself with two conflicting reactions:
1. Why on earth would the LCMS want to go all the way to the Supreme Court to argue THIS case? It makes them look like they’re using a religious veneer to cover up a rotten practice of discrimination, which, one would hope, violates LCMS’ sense of Christian justice surely as deeply as the teacher’s going to court did–if not more deeply.
2. Or is it like a situation in which free-speech advocates hold their noses and defend pornographers, on grounds that the most egregious cases can demonstrate the importance of the principle?
Thoughts?
There has been a great deal of discussion on Mirror of Justice about this case. I think from the view of many people there, religious organizations should have an absolute right to hire and fire free from any government involvement, and should also have an absolute right to classify employees as “ministerial” as they wish, whether the employees are ministers, teachers, organists, janitors, or air-conditioner repairmen. The issue for them is that it may be very difficult to draw the line in some cases (e.g., is the organist a guy who plays a keyboard instrument, or is his choice and performance of liturgical music religious in nature?). And if it is difficult to know where to draw the line, it is better to keep government out of the picture altogether, even though it is admitted that some religious organizations may treat their employees unfairly.
It seems to me, at minimum, all employees of religious organizations ought to know the terms of their employment, and consequently at minimum a religious employer out to make it clear during the job interview whether the job was ministerial, and exempt government anti-discrimination policies, or whether the job was a straightforward job with normal government rights and protections. However, those I was arguing with balked at any government requirement even to tell an employee what his status was.
I lean toward letting the government have at least some say in determining who is and who is not a ministerial employee. I do not see why a religious organization that hires “secular” employees like a cleaning staff, maintenance workers, gardeners, and so on should be permitted to exempt themselves from all government restrictions. Obviously, the government should not have the right to say the Catholic Church is discriminating against women who want to be priests and force the Church to ordain women. But in all cases where the question is where the line should be drawn, I don’t think it is necessary to say it’s so difficult to draw the line that no line should be drawn.
This is just one of a number of cases that some bring up when trying to claim Christians, or Catholics, are an embattled minority fighting for their existence. The issue, it seems to me, is that religious organizations are, in so many cases, so very much “of this world” that they cannot be allowed to maintain they are wholly other. If you run hospitals, adoption agencies, colleges with dormitories, and so on, you are going to have employees that are no different from secular organizations that run hospitals, adoption agencies, colleges with dorms, and so on. A minister or a religion teacher may not be “of this world,” but surely a gardener or janitor is.
I can’t see how religious organizations could use their position(if they are really committed to the Gospel) to discrimate against someone.
The problem is they don’t act according to Gospel values all the time.
Worst , it seems policy makers think they can act above the law themselves while easily dismissing staff.
Fairness in the workplace demands some kind of checks and balances.
The instant case, though, given the law, is indeed “a mess”, especially since Churches wil want to have the broadest discretion possible.
Isn’t it important to check on exactly what the law says, on precedent, and on what the sense of Congress was when it was passed? If the language was left deliberately vague, it’s up for grabs unless precedent clearly goes one way or another.
Whatever is decided, though, it’s important that the core religious functions of churches not be touched. And as David N says, that definition has got to be completely up to the churches. If this goes against the Lutherans, perhaps it will be necessary either to scrap the law or rewrite it. When does it date to? Why was it thought desirable? Were governments impinging on churches’ hiring practices?
Perhaps the SC can use *locale of employment* as a deciding factor in such cases?
If a janitor, for example, is deemed a “ministerial employee” in a school, I would leave the decision to the church school. On the other hand, I would not recognize a ministerial exception for a janitor employed in a church-run hospital. As for shelters, health clinics, soup kitchens, etc., perhaps the SC can offer some guidance. I would be comfortable with this same approach being applied to other lines of work.
Without further thought for now, perhaps the SC could, in short, prescribe a matrix approach — locale of employment, clientele, percentage of time devoted to ministerial vs non-ministerial duties, etc. Give the employee the right to challenge the accuracy of his or her job description including the hours/percentage of time devoted to each of the two broad duty categories. Acknowledging such a right would not override an employer’s right to assign duties, but the govt could have the right to assess the accuracy of an employee’s job description.
Giving exceptions to religion is a terrible practice. Jesus said that the servant is not greater than the master and that the servant would be persecuted like the master. Privileges given religion has everything to do with the “triumph” of Christianity and/or other religions. It is natural for the state to buy into the privilege of religion because there is no more powerful ally in exercising power. The model is all screwed up. The Master dies on the Cross and his followers specialize in empire. The paradox of our times is that the State is forcing the religious to treat children right and in this case to treat this Lutheran worker right. The constant paradox is there is a lot of money and power in religion. The church had the idea long before Sears and Roebuc.
“Giving exceptions to religion is a terrible practice.”
Two hundred plus years of jurisprudence on church-state issues, and all the complexities therein, dismissed with eight words. Amazing. Maybe even a tad fundamentalist?
Anthony, I don’t remember any jurist helping Jesus as he was in custody from tribunal to tribunal. So it might depend on who your God is.
Unfortunately, life is more complicated than that. I fear you hold for a fundamentalist interpretation of scripture, which can be very dangerous
This resonates with the Catholic bishops’ repulsive distortions of the First Amendment that got them off for decades before judges started ruling they could not exempt themselves from child protection statutes. The court cannot tell bishops how to handle priests, they said.
But the First Amendment does not allow bishops to rely on religious doctrines like forgiveness and redemption as excuses to criminally endanger children. Neutral, generally applicable laws to protect minors or discriminate against people do not create a privileged class immune from such obligations.
Catholic bishops claimed in effect the right to be as negligent as they want in managing sexual predators in order to practice their Catholic faith. The bishops are fighting this case too.
Read “God vs the Gavel” by law prof Marci Hamilton to see how the balance has tipped dangerously in deference to religious institutions.
Even churches can get pretty cynical. I can see the dilemma, but it would not surprise me to learn that she became a minister as soon as she challenged her firing.
This is actually more complicated than it seems. The issue, I suspect, is whether in the scheme of things the ADA is closer to the SSA payments in the case brought by Amish business owners, or the smoking of peyote by Indians using it as part of a religious service. When the original employment non-discrimination categories were created, they touched on issues that would obviously trip First Amendment considerations — e.g., no discrimination on account of religion, or gender, or national origin (what if your church is Serbian Orthodox)? You get the idea — it’s not clear to me that the ADA burdens the practice of religion or that religious practice should be exempt on the basis of non-religious considerations, like cost, because lots of small, not for profit organizations are similarly burdened.
So it is possible that the application of the ADA would pass constitutional muster in ways that Title VII would not, and the issue is purely one of congressional intent — did Congress intend to exempt churches from the ADA?
This case has myriad amicus briefs that were filed in support of the Lutheran Church, among them the USCCB.
http://www.scotusblog.com/case-files/cases/hosanna-tabor-evangelical-lutheran-church-and-school-v-eeoc/
Draw your own conclusions.
For Catholic employers, the following seems relevant:
Administrators of temporal goods: 1° in making contracts of employment, are accurately to observe also, according to the principles taught by the Church, the civil laws relating to labour and social life …
Canon 1286 (paragraph 1), Code of Canon Law
Much closer to home, the NLRB recently went after Manhattan College (a Catholic College) when they tried to use their religious exemption to keep adjunct faculty from unionizing:
http://www.usatoday.com/news/religion/2011-02-11-Catholic_labor_union_10_ST_N.htm
The interesting side-effect is that the NLRB questions whether a religious college is really religious if it’s primary purpose isn’t propagating a faith. Manhattan is appealing.
Why, in actual fact, was she fired.? . Is the legal reason given the only issue? I think more information is needed before getting into the church/state problem.
Just read the Fish piece. Interesting headline the NYT tacked onto it: “Is Religion Above the Law?” Slightly incendiary, that. Where is this going? Who wants it to go there?
“Two hundred plus years of jurisprudence on church-state issues, and all the complexities therein, ”
And how many years of jurisprudence on slavery as well as the denial of the vote to women and blacks were there?
Wrong is wrong irrespective of length of time being wrong.
I’ve read that when a federal court is presented with a case which calls for conflicting laws to be applied and the arguments on both sides are equally compelling, that the court will favor the side which is appealing to something mentioned explicitly in the Constitution.
Thus, if in this case the justices see equal right on both sides they would go with the side which is appealing to an explicit article of the Constitution, which in this case would be the guarantee of religious rights.
The problem in this case seems to be whether the arguments are equally compelling.
Ann, remember, logic is everyone’s servant. An excellent case can be made for any position. You just have to be willing to go there.
Oh, nonsense, David S.
Just once I’d like to see an instance where religious exemption is used in the cause of good instead being to used to do someone harm :(
The government can stand up for the disbled against the exemption, and I hope it will. As mentioned in the Wikipedia page on Employment Division v. Smit, the SC has held that religious institutions aren’t exempt from laws against, for instance, bigamy (Mormon polygamy), or child labor laws, etc. ….
‘The First Amendment forbids government from prohibiting the “free exercise” of religion. This means, of course, that government may not regulate beliefs as such, either by compelling certain beliefs or forbidding them. Religious belief frequently entails the performance of physical acts—assembling for worship, consumption of bread and wine, abstaining from certain foods or behaviors. Government could no more ban the performance of these physical acts when engaged in for religious reasons than it could ban the religious beliefs that compel those actions in the first place. “It would doubtless be unconstitutional, for example, to ban the casting of statues that are to be used for worship purposes or to prohibit bowing down before a golden calf.”
But Oregon’s ban on the possession of peyote is not a law specifically aimed at a physical act engaged in for a religious reason. Rather, it is a law that applies to everyone who might possess peyote, for whatever reason—a “neutral law of general applicability,” in the Court’s phrasing. The Court characterized Smith’s and Black’s argument as an attempt to use their religious motivation to use peyote in order to place themselves beyond the reach of Oregon’s neutral, generally applicable ban on the possession of peyote. The Court held that the First Amendment’s protection of the “free exercise” of religion does not allow a person to use a religious motivation as a reason not to obey such generally applicable laws. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.” Thus, the Court had held that religious beliefs did not excuse people from complying with laws forbidding polygamy, child labor laws, Sunday closing laws, laws requiring citizens to register for Selective Service, and laws requiring the payment of Social Security taxes…’
RE Leo & Barbara’s post: I had read somewhere that the woman had been asked to resign because she missed work due to illness. When she refused and at that time threatened to file an ADA complaint, they fired her on the religious grounds she was going outside the community to complain. The lawyers here would know better, but I believe one can’t use that religious exemption as a smokescreen or an excuse just to engage in conduct otherwise illegal. The fact that she had health issues doesn’t seem like a violation of any core tenets of Lutheranism, so if that was actually the real reason they fired her, they shouldn’t be able to justify it on the grounds of religious freedom.
Nearly all of the analyses I’ve encountered have focused on the issues delineated by Professor Fullam and others on the comment thread, which is logical since it cuts to the heart of the Supreme Court’s concern with the case, but very little attention has been paid to the specifics of Ms. Perich’s circumstances. Her lawyer (obviously not an impartial observer) attests that Ms. Perich was offered the opportunity to retake her position in the classroom at the start of the following school year.
http://www.virginia.edu/uvatoday/newsRelease.php?id=14915
She refused and insisted that she return to work immediately. There was an ensuing confrontation, the precise details of which I would imagine to be the matter of some significant contestation between the two parties, and Ms. Perich indicated her intention to bring a lawsuit.
My question is this: if, for the moment, we assume that the school’s intentions were sincere, i.e. that she would be teaching her section again the following semester, might there be some compelling reason for it? In my experience, having multiple teachers in elementary and middle school during a single academic year is immensely disruptive and potentially quite deleterious to the learning process. Do we know the details of the dates of her medical leave and attempt to return? (Was she gone one month? Two? Five? Was she trying to return in December? May?)
Might there be an analogy to be made in suggesting that it’s not unlike a starting QB who goes down in week 4 of the season with a torn ACL, and the reserve steps in, guiding the team for the next 10 games, doing an adequate (or even excellent) job. The starter then returns with 2 games left and expects to re-take his role immediately, but there is ambivalence among the staff as to whether or not it might make more sense to stick with the one they’ve been using the last couple months and let the starter re-claim his starting role the following season. (An imperfect analogy to be sure, and utterly devoid of religious considerations, but might it shed some insight on why the school may have asked Ms. Perich to wait until the following fall to start back?)
Not the central substance of the SC’s interest in the case, I know. Just curious about people’s thoughts since the school seems to be so unhesitatingly vilified and unqualifiedly condemned by nearly everyone I’ve read.
Michael Bayer, it’s not only not the central substance, it’s probably of no interest whatsoever. The ADA has a hardship clause built right into it, so if it would be unreasonable to accommodate an employee in a particular circumstance, then the employer can defend on those grounds.
I do not take any position on the underlying reasonableness of the school’s determination not to rehire, or to fire, the teacher. The problem is that it seems to want an end run around any inquiry into the reasonableness of its actions by seeking an incredibly broad exemption to the ADA altogether that is only fitfully related, if related at all, to sectarian objections, other than, they are quite handy.
There are lots of problems with the ADA, you won’t find me disputing that, and these problems stem from a variety of sources — the vague definition of what constitutes a disabiliy (though that does not seem to be an issue here), and the blithe assumption that somehow the costs of hiring disabled workers will be evenly distributed so as not to disadvantage any particular entity.
Excellent comment by Barbara.
Actually there are two parts to this thread: how the court will go based on contemporary law and precedent and also what we think would really be just in the case at hand and its broader applications.
I have some problems with the institutional discretion upholders in the latter at least, because they hold the levers of power and despite disclaimers can easi.ly trod on an individual given the leeway.
In this discussion it would be helpful for all to understand the concept of “commissioned minister” within the Lutheran Church-Missouri Synod.
Those who are commissioned generally are those who are theologically trained within the LCMS college, university and seminary system. Teachers are commissioned by virtue of the requirement that they be theologically trained and certified. While some teachers may enter the school system without the necessary theological training, most are required to receive the theological training and adhere to the rules regarding commissioned ministers once they have been employed. This certification is meant to assure that teachers within the system are in agreement with the doctrinal teachings of the church body since nearly all classroom activities have theological content.
They are in every way ministers of their congregation even though their daily work is within a school.
In addition, teachers in the Lutheran school system are “called” to their positions in the same way that pastors are called to serve. Teachers are not hired. In most cases, the decision of employing a particular teacher is the result of a process that is directed on doctrinal grounds and is agreed upon by the entire church body through an election.
When one understands the historical process used in Lutheran Church-Missouri Synod schools, it is much easier to see why the case in question has landed in the Supreme Court.
I am not familiar enough with all of the details of the case to judge the appropriateness of the teacher’s complaint. But I have little doubt that a decision against the congregation would be a shift of major significance in the historical interpretation of the ministerial exception.
My hunch is that the court will decide this case in an extremely narrow sense so that it could not be interpreted as having an impact on the concept of the ministerial exception.
Well, an exaggeration. An excellent case can be made for most, if not all, popular positions. Popularity is a reliable filter for sheer craziness. If a lot of people believe something, there’s probably a solid logical defense for it – even if most of the people who believe it can’t articulate it.
Rich Balvanz 10/19/2011 – 2:07 pm :
Thanks, very much, for that, Rich. I wonder how much of what you explained was clearly understood by the EEOC before they jumped into this. If they did understand it, what they’ve done could be reasonably interpreted as deliberately pushing the edge of an envelope. To what purpose?
I encourage all of the commenters and the author of the post to read the briefs and listen to the oral argument from this case to get a full understanding of the facts and issues involved:
http://www.scotusblog.com/case-files/cases/hosanna-tabor-evangelical-lutheran-church-and-school-v-eeoc/
Also of note in the transcript of oral argument, both Justice Scalia and Justice Kagan were shocked at the government’s argument in favor of the teacher, in which the lawyer claimed the religion clauses of the first amendment do not add any additional protection to a religious employer’s choice of minister to differentiate it from a labor union’s choice of leader. Kagan and Scalia both called this argument “amazing!” and not in a good way.
David Smith, as to the purpose for pursuing this case….I am a somewhat cynical person, so you might want to take this with a grain of salt.
In several areas of the United States lay teachers at religious schools – particularly Catholic schools – are lobbying state legislators to pass laws that would make lay teachers subject to state labor laws and also allow them to collectively bargain. This is occurring even though many Catholic dioceses already allow and support unionization of lay teachers and employees of Catholic schools. However, these teachers associations are not affiliated with national teachers union groups.
The ministerial exception is what stands in the way, since the churches themselves have had the ability to classify who is a minister and – indirectly – divert unionization.
My guess is that the teachers unions are the behind-the-scenes advocates for this case. The American Federation of Teachers would certainly love to add to its roster the thousands of teachers now employed by religious elementary and high schools across the country. In fact, the AFT is one of the supporters of a bill in Pennsylvania that essentially overturns Catholic canon law giving bishops the leeway to deal with teachers associations as they deem appropriate.
A successful challenge to the ministerial exception would eliminate the need to pass state-by-state legislation “freeing” the religious school teachers to collectively bargain.
The Lutheran Church-Missouri Synod stands alone when it comes to its method for employing and retaining teachers. Though the LC-MS is small by comparison, it is has the second largest school system of any religious body in the United States. Its schools are generally small relative to the Catholic counterparts. But from the standpoint of seeking a case in order to overturn the ministerial exception, the EEOC picked the wrong denomination.