How Is the Supreme Court Supposed To Decide Who Qualifies as a Lutheran Minister?

The law, lawyers, and the court.
Oct. 5 2011 8:12 PM

Ministers of Justice

The Supreme Court asks which is more important: preventing discrimination or protecting religion?

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Photograph by Buccina Studios/Thinkstock.

What do you get when you ask a secular court comprised of some very religious people to determine whether religious groups are liable for civil rights violations in secular courts? As we saw this morning, in one of the most important religion cases in years, you get a Möbius strip of church-state wrangling—the state enmeshed in a fight with the church over how to disentangle the state from the church. Want to see the Supreme Court take a difficult case and make it so much more difficult? Tune in.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

In 1999, the Hosanna-Tabor Evangelical Lutheran Church School in Michigan hired Cheryl Perich as “contract teacher.” After completing some religious classes, she became a “called teacher”—meaning she could be dismissed only for cause. Perich taught mainly secular subjects, including math, science, and gym, although she did teach a religion class four days a week and led a chapel service twice a year. In 2004 she took a medical leave and was eventually diagnosed with, and treated for, narcolepsy. She was then cleared by her doctors to return to teaching. Following a few exchanges with the administration about whether she was fit to do so, Perich was threatened with termination. She then threatened to sue under the Americans with Disabilities Act, which prohibits job discrimination against a person with “a physical or mental impairment that substantially limits one or more major life activities.”

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But the ADA contains the same “ministerial exception” as other civil rights laws, a 40-year-old doctrine that precludes courts from interfering in matters “involving the employment relationship between a religious institution and its ministerial employees.” The idea is that you can’t use civil rights laws to force Catholic churches to hire female priests, or orthodox synagogues to ordain Catholics, without running afoul of the First Amendment. The courts of appeals have for years struggled with questions about this ministerial exception, ranging from “What is a minister?” to “How the hell should we know what a minister is?” We can agree that the cafeteria lady isn’t a minister. But what about a secular teacher who performs some religious duties?

In Perich’s case, a federal appeals court determined—by counting the hours she devoted to secular and religious duties—that since her primary duties were secular, she was not a minister and could proceed with her ADA claims. The Supreme Court has never heard a ministerial exception case and presumably took to the case to clarify this issue.

Hah.

Please don’t be fooled by those who argue that this is a case of the dreaded federal government brashly intruding into private church affairs. Even University of Virginia professor Douglas Laycock, who represents the school this morning, concedes that there are plenty of church matters in which the courts could assess whether the ministerial exception applied, and whether it was being used as a pretext in a retaliation case. Nobody claims today that all religious institutions are immune from any and all court scrutiny. The question is who is a “minister” and who gets to decide?

The case is thus about line-drawing. Laycock would say that anyone who holds ecclesiastical office, or anyone who teaches religion, is a “minister” who can be fired without recourse to the courts. The Equal Employment Opportunity Commission and Perich argue that they don’t want to micromanage internal church staffing decisions but that they do want judicial recourse when basic civil rights laws are broken. Both lines get blurrier as the morning goes on.

Laycock opens with a reference to the “bedrock principle” that “churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church.” Justice Sonia Sotomayor quickly explains that what bothers her is the possibility of the ministerial exception being used to deny court scrutiny of “a teacher who reports sexual abuse to the government and is fired because of that reporting.” She adds, grimly, “We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children.”

Justice Anthony Kennedy points to the circularity of asking the court to formulate a test for a fired teacher who “can't even get a hearing.” He tells Laycock, "You're asking for an exemption so that these issues can't even be tried!"

Chief Justice John Roberts asks how the court is meant to decide what a minister is in the first place. He wonders whether it covers “a teacher who teaches only purely secular subjects, but leads the class in grace before lunch?” Laycock says that this is an easy case because Perich was “a commissioned minister.” Roberts replies that this in fact solves no problems: “There are some churches who think all of our adherents are ministers of our faith. Now, does that mean that everybody who is a member of that church qualifies as a minister?”

Justice Elena Kagan asks whether “any religious teacher is a minister under your theory.” Laycock says yes.

Justice Stephen Breyer explains that Perich violated a tenet of the Lutheran faith: that disputes are resolved in the church, not the courts. Breyer then asks Laycock whether Perich knew she was in violation of this principle when she threatened to sue. Justice Samuel Alito says this is precisely why courts shouldn’t be looking into these types of questions. What “Martin Luther actually said about suing the church,” Alito observes, or what constitutes “a central tenet of Lutheranism,” are simply not inquiries courts are well-suited to perform.

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