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 associations 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?

Lisa Fullam is professor of moral theology at the Jesuit School of Theology at Berkeley. She is the author of The Virtue of Humility: A Thomistic Apologetic (Edwin Mellen Press).

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