By Wendy Kaminer, author, lawyer and civil libertarian. Ms. Kaminer is the author of I’m Dysfunctional, You’re Dysfunctional, and was awarded a Guggenheim Fellowship in 1993. This post was first published at the Atlantic.com.
Religious institutions can sidestep workplace discrimination laws when it comes to hiring and firing clergy. But what about more secular employees, such as teachers and office administrators?
Religious organizations enjoy essential and generally uncontested immunity from anti-discrimination laws in hiring and firing clergy according to religious doctrine: The Catholic Church isn't liable for refusing to ordain women anymore than a Church of White Supremacy would be liable for refusing to ordain blacks. But the scope of this exemption from employment laws, known as the "ministerial exception," is hotly contested. Does it automatically apply to employees other than clergy -- to parochial school teachers or administrators and others that religious employers might describe as important religious functionaries? That question is before the Supreme Court this term in Hosanna-Tabor v EEOC, scheduled for argument on October 5th.
The legal context for this case is a recurrent conflict between the constitutionally protected autonomy of religious institutions and their obligation to comply with generally applicable secular laws, enacted in the interests of general public welfare and, in this case, equal employment rights. The Supreme Court has addressed this conflict before: in Boerne v Flores, it struck down federal legislation effectively expanding religious exemptions from federal, state, and local laws. In Employment Division v Smith (the case that gave rise to the law at issue in Boerne), the Court held that Native Americans who ingested peyote sacramentally were not exempt from state drug laws (and could, therefore, be denied unemployment benefits when fired for using peyote.)
But Smith addressed individual practices associated with a minority faith (practices criminalized and demonized by the war on drugs.) Hosanna-Tabor involves the governance of mainstream religious institutions. Whether and how much that factual distinction matters will help determine the scope of the "ministerial exception" and the rights of hundreds of thousands of employees in religious organizations, especially Cheryl Perich, a former teacher at Hosanna-Tabor Evangelical Lutheran Church and School.