Private: Church, State, and the Americans With Disabilities Act

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.

Perich taught kindergarten and elementary school students, concentrating on secular subjects and using secular public school texts. But she had qualified as a "called teacher," earning a certificate of mission into the church's "teaching ministry." She taught a religion class 4 days a week, led her students in prayer, and conducted chapel services twice a year -- as did other teachers who were not "called" members of the teaching ministry.

Then, after some five years at the school, Perich fell ill and obtained a disability leave, with a promise that she could return to work when she got well. Months later, she was diagnosed with narcolepsy, successfully medicated, and assured by her doctor that she was fit to work. The school, however, had hired a replacement in her absence and resisted her efforts to return, disputed her doctor's assertion that she was healthy, and asked her to resign, claiming that she might endanger her students.

Relations between Perich and school officials broke down. She was told to leave the school when she reported for work, and when the principal informed her that she was likely to be fired, Perich responded that she had consulted a lawyer regarding a possible disability discrimination claim. The school fired her, citing her allegedly insubordinate and disruptive behavior and her threat to take legal action. Perich filed a charge with the EEOC, which sued the school under the Americans with Disabilities Act (ADA) for retaliating against her for raising a discrimination complaint. (Retaliation is explicitly prohibited by law.) Perich intervened, making similar retaliation claims under state and federal statutes. (Briefs in the case are available here.)

If Hosanna-Tabor were a public school or a private secular one, this would be an easy case, and Perich would likely prevail. The school's allegedly retaliatory actions were clearly prohibited by statute. While the ADA expressly allows religious organizations to discriminate on the basis of religion, it does not permit them to discriminate on other grounds or to retaliate against employees who complain about discrimination. The terms of the statute are not in dispute; but claiming a ministerial exception, Hosanna-Tabor challenges the constitutionality of retaliation provisions as applied to this and similar cases. The school describes Perich as a "commissioned minister" who held an "ecclesiastical office" and performed "important religious functions." In addition, it claims that Perich was not fired for invoking anti-discrimination law, but because she invoked the law in violation of church doctrine, instead of resorting to an internal conflict resolution process. (To school officials, this is a distinction with an important difference.)

Perich and the EEOC argue that her primary functions were secular and, as a "called teacher," her duties were no different from the duties of teachers not certified as members of the teaching ministry. They question the sincerity of the school's claim that Perich violated doctrine by consulting a lawyer and point out that the church personnel manual endorses the principals of the ADA. Perich notes that the school didn't mention its "theological reasons" for firing her until after she filed suit, that the school principal also consulted counsel regarding potential liabilities under the ADA for Perich's dismissal, and that after she was fired, allegedly for doctrinal violations, she remained on the church roster of commissioned ministers "eligible for called positions at other schools."

The federal district court was unconvinced by these claims and ruled for Hosanna-Tabor. The 6th Circuit Court of Appeals vacated and remanded the case, ruling that Perich was primarily a secular employee, not covered by the ministerial exception. In addition, the Court held that determining whether doctrinal violations were the actual reasons for firing her or mere pretexts cynically raised in defense of her suit would not involve judicial entanglement in questions of religious doctrine: courts would not have to decide whether church doctrine disdains litigation, but only whether such disdain was, in fact, at issue in this case.

The Supreme Court accepted review, and questions about Cheryl Perich's individual status as a ministerial employee and the reasons for her firing have evolved into questions about general rules governing claims by employees of religious organizations. Hosanna-Tabor urges the Court to promulgate a categorical ministerial exception applying to all employees that religious employers classify as performing important religious functions. It argues, additionally, that courts should refrain from inquiring whether a stated theological reason for dismissing an employee is sincere or pretextual, claiming that the inquiry would require judges to take sides in internal doctrinal disputes (which virtually everyone agrees would violate First Amendment freedoms.) The EEOC objects to a categorical ministerial exception, arguing that courts should decide whether exceptions apply on a case by case basis, which would allow retaliation challenges to proceed (at least past the courthouse door.) Additionally, the EEOC argues that courts can consider the sincerity of a doctrinal claim without determining the substance of the doctrine itself.

The stakes are high: If the Court agrees with Hosanna-Tabor, then employees labeled ministerial by their employers would be precluded from challenging retaliation for invoking their rights under a range of state and federal employment laws (civil rights, health and safety, and minimum wage laws) or even for alleging criminal activity. (Perich points to a Michigan case holding that a Catholic school teacher was not protected by the state whistleblower statute when she was allegedly fired for reporting suspected sexual abuse.) If the Court rules for the EEOC, religious employers could not claim automatic exemptions from general laws but would bear the burden of demonstrating that an employee is ministerial and that allowing her claim to proceed would violate the organization's First Amendment rights.

So, this dispute about the First Amendment rights of religious organizations deeply implicates individual rights of access to the courts and enforcement of workplace rights and regulations. Hosanna-Tabor asserts that courts should defer to a religious organization's characterization of an employee as ministerial, taking the organization's "good faith" claims at face value and blocking lawsuits by allegedly ministerial employees. The trouble is, religious employers are merely human, and they don't always act in good faith (as the facts in this case suggest.) Recognizing, at least implicitly, the possibility of bad faith, Hosanna-Tabor denies that it is seeking a "right to arbitrarily designate just anyone as a minister," with no judicial review. It suggests that courts adopt a rebuttable presumption that an employee classifed as a minister is indeed one, placing the burden of proof on the employee to demonstrate that the classification is a sham.

But if you accept Hosanna-Tabor's expansive understanding of its First Amendment rights, which prevent courts from even considering whether a religious employer is sincere in claiming a theological reason for firing someone, then you might also prevent or greatly limit a court's inquiry into the good or bad faith of a ministerial classification. The result would be a remarkable rule allowing religious employers to decide for themselves, and for the judiciary, whether or not they should be immune to lawsuits by employees. It's not hard to imagine how they'd decide their own cases.

If the Court rules against Hosanna-Tabor and declines to presume the validity of an alleged ministerial exception, would it unduly burden religious organizations with complicated lawsuits involving doctrinal disputes? Federal courts have been deciding cases involving ministerial exceptions for years, and religious employers have survived. Hosanna-Tabor had an arguable exception claim in the Perich case, but reasonable judges could disagree about its merits; and the 6th circuit decided the claim without delving into church doctrine. A harder question is whether the case-by-case approach advanced by the government would entangle courts in the internal affairs of religious groups and unduly threaten their autonomy and associational rights.

I'd be more sympathetic to these concerns if religious organizations valued their autonomy consistently and refrained from feeding so voraciously at the public trough. Parochial schools depend, in part, on public funds providing them with computers, textbooks, and remedial teachers, as well as students whose tuitions are subsidized by vouchers or tax breaks. Public colleges and universities can be required to support proselytizing sectarian student groups. Taxpayer dollars fund "faith-based" social services. Religious organizations have fought hard for these public dollars, with no apparent concern for their autonomy, successfully resisting claims that church/state partnerships violate prohibitions on establishing religion.

As a result, religious institutions perform essential public welfare and educational functions and lay claim to public funds that might otherwise be channeled to public schools and other secular service agents. In providing these non-ministerial services they employ hundreds of thousands of people entitled to the protection of workplace laws, as Perich points out. I don't agree that religious organizations have a right to public funds, but when that right is recognized, it should at the very least entail the willing assumption of responsibilities under public laws -- not wholesale exemptions and a wholesale assault against them.

I don't know the extent of any public support that Hosanna-Tabor or the Lutheran Church-Missouri Synod have enjoyed. I do know that Hosanna-Tabor seeks a Supreme Court ruling that would apply broadly to religious institutions, including parochial schools and service providers, that do enjoy significant taxpayer support. If government entanglement in religion is a sin, they should be last in line to throw stones.

Constitutional Interpretation, Disability rights, First Amendment, Supreme Court