A reader of this blog with quite a bit of expertise on employment law and who is also sensitive to the religious issues involved has sent me what I think is the best analysis I have seen of the Hosanna-Tabor v. EEOC case currently before the Supreme Court, having to do with a Lutheran school that fired a called teacher because of her disability, then claimed a “ministerial exemption” from having to follow the disability laws because the employee was a “minister.” Here is part of what he said, which I post with his permission (honoring also his request for anonymity):
The argument of Hosanna-Tabor that their action was based on religious reasons seems to be cooked up post-facto, and so I imagine that Ms. Perich would be able to successfully prove them pretextual–which then puts the burden of proof back upon the school to show that they are not in fact pretextual. Since their case as represented in the court documents doesn’t seem strong in this area, I think they ought to lose the case, if it is argued on those lines.
This also raises the question: Can a church or religious institution justify any action on the basis of religious motive? It seems to me Hosanna-Tabor already stepped outside the recognized limits of LCMS ecclesiology by purporting to treat a woman teacher at a Christian school as a “minister,” when, quite properly according to their theology, the priestly office is limited to men in the LCMS. The application of this category to religious school teachers only, it seems, to circumvent labor laws, strikes me as both cynical and irreligious. Can any employment action can be dragged into the category of religious conviction when the stated institutional convictions of the supervising denomination are clearly at odds with it? This is the elephant in the room which the EEOC has been mighty delicate not to take a shot at.
I worry that the outcome of this case, whether Hosanna-Tabor wins or loses, will be to confuse 1st Amendment jurisprudence and set bad precedents in one direction or another.
I know the New Testament prohibitions about going to court to solve church disputes–it’s much better to be defrauded–but it’s possible for a church to obey the law in regards to its ministers without anyone going to court. The Reformation battled the notion that the church needs only follow canon law and not the laws of the state, addressing the situation that priests and nuns were subject only to canon law, even when they committed overt crimes. The doctrine of vocation taught that the laws of the state also were instruments of God’s social order, and that the church didn’t have the right to impose a competing legal system of its own.
We have the rights of the church vs. the rights of the pastors. (Since the plaintiff here is a teacher, perhaps many pastors haven’t been seeing how the case would also apply to them.) Or should pastors claim no legal rights other than those of the church?