Should ministers have any legal protections?

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.

Exactly.  However the course rules, harmful precedents are going to be set.   This raises another question:  Do ministers have any legal protections?  If the ruling goes in favor of the school, that would seem to mean that churches and other religious organizations could mistreat their pastors and probably other employees with impunity, claiming a “ministerial exception” that makes them exempt from honoring the legal rights that other citizens have.

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?

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • http://LeitersburgLutheran.org Terry Culler

    An interesting question and not as simple as it sounds. FWIW, I fall on the side of saying that no pastor should step outside ecclesial systems to assert a “right”. Congregations can mistreat pastors, but pastors can also mistreat congregations. Should the congregation then sue the pastor for being a jerk? Those who have knelt and received a laying on of hands, promising to teach the pure Gospel with the help of God ought to know that their only help in time of trouble is that One whom they promised to lean on.

    As to the lady in this court case–I probably don’t know enough to comment on it, but I will anyway. A school teacher is not a teacher in the sense which Paul meant when he wrote to Timothy. That teacher was, in reality, a pastor. That said, it is hard to see how the school could claim a “religious” or doctrinal reason for not rehiring her. My fear is that in doing so they may actually lead to a diminution of church authority. Even beyond that, I think my sympathies are with the teacher in this instance.

  • http://LeitersburgLutheran.org Terry Culler

    An interesting question and not as simple as it sounds. FWIW, I fall on the side of saying that no pastor should step outside ecclesial systems to assert a “right”. Congregations can mistreat pastors, but pastors can also mistreat congregations. Should the congregation then sue the pastor for being a jerk? Those who have knelt and received a laying on of hands, promising to teach the pure Gospel with the help of God ought to know that their only help in time of trouble is that One whom they promised to lean on.

    As to the lady in this court case–I probably don’t know enough to comment on it, but I will anyway. A school teacher is not a teacher in the sense which Paul meant when he wrote to Timothy. That teacher was, in reality, a pastor. That said, it is hard to see how the school could claim a “religious” or doctrinal reason for not rehiring her. My fear is that in doing so they may actually lead to a diminution of church authority. Even beyond that, I think my sympathies are with the teacher in this instance.

  • Paul

    I’d like to see the LCMS move quickly to ‘undo’ the recent and novel elevation of Commissioned “Ministers” to “Servant of the Word” (Minister) status. This case is one example of many which demonstrate the confusion this ill-advised action has caused. The relationship between a congregation and its pastor is quite different from that with its teachers, DCEs, DPMs, etc. It has also confused the relationship between Ordained and Commissioned Ministers. The Council of District Presidents should make such an Overture to the next Synod Convention to rectify this.

  • Paul

    I’d like to see the LCMS move quickly to ‘undo’ the recent and novel elevation of Commissioned “Ministers” to “Servant of the Word” (Minister) status. This case is one example of many which demonstrate the confusion this ill-advised action has caused. The relationship between a congregation and its pastor is quite different from that with its teachers, DCEs, DPMs, etc. It has also confused the relationship between Ordained and Commissioned Ministers. The Council of District Presidents should make such an Overture to the next Synod Convention to rectify this.

  • Michael

    For the vast majority of people employed in any type of religious ministry, special legal privileges for ministers is a horrible deal for them. In fact, the law is only gives extra privileges to the person who makes all final decisions, which is not necessary the minister — associate pastors and even lead pastors still might be under whim of the person at the church who makes these decisions. When one allow for extra privileges for church’s top leaders , one takes away rights from everyone else who works in a church. The “right” for a minister to fire someone who becomes disabled doesn’t come at the expense of non-Christians, but rather it comes at the expense of ordinary people working at the church who aren’t in the top echelon of leadership — church librarians, teachers, administrators, associate pastors, music leaders, etc.

  • Michael

    For the vast majority of people employed in any type of religious ministry, special legal privileges for ministers is a horrible deal for them. In fact, the law is only gives extra privileges to the person who makes all final decisions, which is not necessary the minister — associate pastors and even lead pastors still might be under whim of the person at the church who makes these decisions. When one allow for extra privileges for church’s top leaders , one takes away rights from everyone else who works in a church. The “right” for a minister to fire someone who becomes disabled doesn’t come at the expense of non-Christians, but rather it comes at the expense of ordinary people working at the church who aren’t in the top echelon of leadership — church librarians, teachers, administrators, associate pastors, music leaders, etc.

  • http://www.cyberbrethren.com Rev. Paul T. McCain

    I’m surprised the school didn’t simply argue that it is a long standing and time honored understanding and teaching in the Church that a called servant who is unable to discharge his/her duties may be dismissed from the call for that reason.

    The woman in question suffered from narcolepsy and took a long leave of abscence, returned, and apparently again exhibited those symptoms.

    Simply put, you can’t have a classroom teacher literally, at any moment, falling asleep.

    That represents an inability to discharge her duties.

    There is no “reasonable accommodation” for such a situation.

    Hence the school rightly discharged her.

    Ironically, the school, as far as I can tell, has since closed and the woman in question is no longer on the roster of The LCMS.

  • http://www.cyberbrethren.com Rev. Paul T. McCain

    I’m surprised the school didn’t simply argue that it is a long standing and time honored understanding and teaching in the Church that a called servant who is unable to discharge his/her duties may be dismissed from the call for that reason.

    The woman in question suffered from narcolepsy and took a long leave of abscence, returned, and apparently again exhibited those symptoms.

    Simply put, you can’t have a classroom teacher literally, at any moment, falling asleep.

    That represents an inability to discharge her duties.

    There is no “reasonable accommodation” for such a situation.

    Hence the school rightly discharged her.

    Ironically, the school, as far as I can tell, has since closed and the woman in question is no longer on the roster of The LCMS.

  • Tom Hering

    “There is no ‘reasonable accommodation’ for such a situation. Hence the school rightly discharged her.” – @ 4.

    State and federal disability agencies have lots of ways to deal with a situation like that – to the benefit of all concerned. Why didn’t the school take that route?

  • Tom Hering

    “There is no ‘reasonable accommodation’ for such a situation. Hence the school rightly discharged her.” – @ 4.

    State and federal disability agencies have lots of ways to deal with a situation like that – to the benefit of all concerned. Why didn’t the school take that route?

  • helen

    Tom Hering @ 5
    Somebody got up on his high horse and ditched her because he thought he could.
    Or a committee (lynch mob?) did.
    I sometimes wonder how much Christianity exists among the bureaucracies!

    From all I’ve read, any parish Pastor below DP has no legal protection.
    And congregations have to ask “his Lordship the DP’s” permission to file a complaint,
    so they don’t either. How did we get here?
    I sort of thought this was why the Saxons left Germany!

  • helen

    Tom Hering @ 5
    Somebody got up on his high horse and ditched her because he thought he could.
    Or a committee (lynch mob?) did.
    I sometimes wonder how much Christianity exists among the bureaucracies!

    From all I’ve read, any parish Pastor below DP has no legal protection.
    And congregations have to ask “his Lordship the DP’s” permission to file a complaint,
    so they don’t either. How did we get here?
    I sort of thought this was why the Saxons left Germany!

  • Tom Hering

    helen @ 6, I suspect there are personality conflicts behind the whole situation. Isn’t that often the case? Someday we may know, when the legal actions have ended, and people are free to talk.

  • Tom Hering

    helen @ 6, I suspect there are personality conflicts behind the whole situation. Isn’t that often the case? Someday we may know, when the legal actions have ended, and people are free to talk.

  • Joe

    On correction to the anonymous lawyers analysis – the LCMS did not muddy up the idea of minister for this law suit; we muddied it up a long time ago to take advantage of a tax break.

  • Joe

    On correction to the anonymous lawyers analysis – the LCMS did not muddy up the idea of minister for this law suit; we muddied it up a long time ago to take advantage of a tax break.

  • Eric Brown

    I think you can expect the courts to make decisions but on the basis of how our own internal structure works. Paul at #4 hits the nail on the head — there are three reasons we have for removing a person from a call – these are false doctrine, manifest immorality, and inability (or refusal) to perform. Those are the standards we have – let actions be judged upon those standards.

  • Eric Brown

    I think you can expect the courts to make decisions but on the basis of how our own internal structure works. Paul at #4 hits the nail on the head — there are three reasons we have for removing a person from a call – these are false doctrine, manifest immorality, and inability (or refusal) to perform. Those are the standards we have – let actions be judged upon those standards.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    This is one that is perplexing on many levels. At the same time, not knowing all the details I try to stay away from making any judgments. Much of what I have read, seems to give a one sided treatment in favor of the teacher. But even there, one sees some holes in her argument. And she turned down the dispute resolution process our church has in place. I don’t know what her reasons are, but it seems to me, one should at least try that before going to court. Though I think that could be made better too.

  • http://www.utah-lutheran.blogspot.com Bror Erickson

    This is one that is perplexing on many levels. At the same time, not knowing all the details I try to stay away from making any judgments. Much of what I have read, seems to give a one sided treatment in favor of the teacher. But even there, one sees some holes in her argument. And she turned down the dispute resolution process our church has in place. I don’t know what her reasons are, but it seems to me, one should at least try that before going to court. Though I think that could be made better too.

  • Carl Vehse

    “The argument of Hosanna-Tabor that their action was based on religious reasons seems to be cooked up post-facto”

    This was also discussed on the April 26th Cranach thread:

    So, the [6th U.S. Appeals] court noted that not only is discriminating against a qualified individual’s disability unlawful, but also unlawful is discriminating (by retaliation) against an individual opposing an unlawful discrimination. In deposing the called commissioned teacher on the basis of “insubordination and disruptive behavior,” which consisted of opposing an unlawful act by her employer, the church’s action seems tantamount to admitting they did indeed unlawfully discriminate against the teacher in both ways prior to their claiming a “ministerial exception.”

    And on top of those acts of discrimination, according to EEOC v. Hosanna-Tabor (p. 7), Perich’s response on February 22 that “she would assert her legal rights against discrimination if they were unable to reach a compromise” was to the principal telling her she would likely be fired. The principal here appears to have violated church doctrine because a called minister cannot be fired, but only deposed for valid reasons.

    A few hours later that evening the Hosanna-Tabor school board issued a letter saying they were reviewing the process for rescinding her call. A second letter notifying Perich that they would indeed request her call be rescinded at a voter’s meeting specified the reason as “Perich’s ‘insubordination and disruptive behavior’ on February 22″ to the threat of being fired.

    No wonder four justices in the SCOTUS hearing repeatedly brought up the issue of pretext.

  • Carl Vehse

    “The argument of Hosanna-Tabor that their action was based on religious reasons seems to be cooked up post-facto”

    This was also discussed on the April 26th Cranach thread:

    So, the [6th U.S. Appeals] court noted that not only is discriminating against a qualified individual’s disability unlawful, but also unlawful is discriminating (by retaliation) against an individual opposing an unlawful discrimination. In deposing the called commissioned teacher on the basis of “insubordination and disruptive behavior,” which consisted of opposing an unlawful act by her employer, the church’s action seems tantamount to admitting they did indeed unlawfully discriminate against the teacher in both ways prior to their claiming a “ministerial exception.”

    And on top of those acts of discrimination, according to EEOC v. Hosanna-Tabor (p. 7), Perich’s response on February 22 that “she would assert her legal rights against discrimination if they were unable to reach a compromise” was to the principal telling her she would likely be fired. The principal here appears to have violated church doctrine because a called minister cannot be fired, but only deposed for valid reasons.

    A few hours later that evening the Hosanna-Tabor school board issued a letter saying they were reviewing the process for rescinding her call. A second letter notifying Perich that they would indeed request her call be rescinded at a voter’s meeting specified the reason as “Perich’s ‘insubordination and disruptive behavior’ on February 22″ to the threat of being fired.

    No wonder four justices in the SCOTUS hearing repeatedly brought up the issue of pretext.

  • Michael

    @Bror Erickson@10

    “Much of what I have read, seems to give a one sided treatment in favor of the teacher. But even there, one sees some holes in her argument.”

    I think you and other posters are giving too much attention to this case in question — Dr. Veith is asking about the big picture. I think the question remains: Should someone who works at a religious institution be given all the rights that an employee has at a non-religious institution?

  • Michael

    @Bror Erickson@10

    “Much of what I have read, seems to give a one sided treatment in favor of the teacher. But even there, one sees some holes in her argument.”

    I think you and other posters are giving too much attention to this case in question — Dr. Veith is asking about the big picture. I think the question remains: Should someone who works at a religious institution be given all the rights that an employee has at a non-religious institution?

  • Carl Vehse

    Rev. McCain (#4) stated: “The woman in question suffered from narcolepsy and took a long leave of abscence, returned, and apparently again exhibited those symptoms.”

    Where is the evidence that the woman “apparently again exhibited those symptoms”? It doesn’t seem to be in the U.S. District Court Opinion and Order, the Sixth U.S. Court of Appeals decision, or the October 5th oral arguments before the SCOTUS.

    “”That represents an inability to discharge her duties.”

    Where is the evidence for this? The U.S. Circuit Court opinion records that Perich had submitted to the school board her doctor’s signed work release note and that “her doctor had reaffirmed that she was healthy and ready to work.” Also remember, all parties had submitted motions to the U.S. Circuit Court for summary judgment, which meant there was no dispute of the submitted material facts of the case, and the parties requested judgment as a matter of law.

    “There is no “reasonable accommodation” for such a situation. Hence the school rightly discharged her.”

    Well, actually, the “voters’ assembly recinded her call.” But as previously noted, the recorded reason was “Perich’s ‘insubordination and disruptive behavior’ on February 22,″ in response to being told she would likly be fired, that “she would assert her legal rights against discrimination if they were unable to reach a compromise.”

  • Carl Vehse

    Rev. McCain (#4) stated: “The woman in question suffered from narcolepsy and took a long leave of abscence, returned, and apparently again exhibited those symptoms.”

    Where is the evidence that the woman “apparently again exhibited those symptoms”? It doesn’t seem to be in the U.S. District Court Opinion and Order, the Sixth U.S. Court of Appeals decision, or the October 5th oral arguments before the SCOTUS.

    “”That represents an inability to discharge her duties.”

    Where is the evidence for this? The U.S. Circuit Court opinion records that Perich had submitted to the school board her doctor’s signed work release note and that “her doctor had reaffirmed that she was healthy and ready to work.” Also remember, all parties had submitted motions to the U.S. Circuit Court for summary judgment, which meant there was no dispute of the submitted material facts of the case, and the parties requested judgment as a matter of law.

    “There is no “reasonable accommodation” for such a situation. Hence the school rightly discharged her.”

    Well, actually, the “voters’ assembly recinded her call.” But as previously noted, the recorded reason was “Perich’s ‘insubordination and disruptive behavior’ on February 22,″ in response to being told she would likly be fired, that “she would assert her legal rights against discrimination if they were unable to reach a compromise.”

  • Richard

    Bad facts make bad law. The ADA and Rehabilitation Act make it clear that employers have a duty to accomodate those with recongized disabilities. There is a high burden on employers to show they are unable to accomodate. The exception that is being argued sounds as if it will fail. My two cents as an employment law attorney in the federal sector.

  • Richard

    Bad facts make bad law. The ADA and Rehabilitation Act make it clear that employers have a duty to accomodate those with recongized disabilities. There is a high burden on employers to show they are unable to accomodate. The exception that is being argued sounds as if it will fail. My two cents as an employment law attorney in the federal sector.

  • Tom Hering

    From the U.S. EEOC website (emphases added):

    Religious Organization Exception: Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” Factors to consider that would indicate whether an entity is religious include: whether its articles of incorporation state a religious purpose; whether its day-to-day operations are religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether it is not-for-profit; and whether it affiliated with, or supported by, a church or other religious organization.

    This exception is not limited to religious activities of the organization. However, it only allows religious organizations to prefer to employ individuals who share their religion. The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability. Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.

    Ministerial Exception: Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act. This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority. The exception applies only to employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction. Some courts have made an exception for harassment claims where they concluded that analysis of the case would not implicate these constitutional constraints.

  • Tom Hering

    From the U.S. EEOC website (emphases added):

    Religious Organization Exception: Under Title VII, religious organizations are permitted to give employment preference to members of their own religion. The exception applies only to those institutions whose “purpose and character are primarily religious.” Factors to consider that would indicate whether an entity is religious include: whether its articles of incorporation state a religious purpose; whether its day-to-day operations are religious (e.g., are the services the entity performs, the product it produces, or the educational curriculum it provides directed toward propagation of the religion?); whether it is not-for-profit; and whether it affiliated with, or supported by, a church or other religious organization.

    This exception is not limited to religious activities of the organization. However, it only allows religious organizations to prefer to employ individuals who share their religion. The exception does not allow religious organizations otherwise to discriminate in employment on the basis of race, color, national origin, sex, age, or disability. Thus, a religious organization is not permitted to engage in racially discriminatory hiring by asserting that a tenet of its religious beliefs is not associating with people of other races.

    Ministerial Exception: Courts have held that clergy members generally cannot bring claims under the federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act. This “ministerial exception” comes not from the text of the statutes, but from the First Amendment principle that governmental regulation of church administration, including the appointment of clergy, impedes the free exercise of religion and constitutes impermissible government entanglement with church authority. The exception applies only to employees who perform essentially religious functions, namely those whose primary duties consist of engaging in church governance, supervising a religious order, or conducting religious ritual, worship, or instruction. Some courts have made an exception for harassment claims where they concluded that analysis of the case would not implicate these constitutional constraints.

  • Joe

    Carl – as a lawyer let me inform you that everyone moves for Summary Judgment and everyone thinks that there are no MATERIAL facts in dispute because the facts that cut against your position are clearly not material.

    When you have cross motions for SJ – there are tons of facts in dispute, the trick is to convince the court that the disputed facts don’t matter or that you win even if the facts do matter and cut against you.

  • Joe

    Carl – as a lawyer let me inform you that everyone moves for Summary Judgment and everyone thinks that there are no MATERIAL facts in dispute because the facts that cut against your position are clearly not material.

    When you have cross motions for SJ – there are tons of facts in dispute, the trick is to convince the court that the disputed facts don’t matter or that you win even if the facts do matter and cut against you.

  • Tom Hering

    Reading the U.S. EEOC statement above, I’m guessing the teacher’s minister status won’t hold water in this case unless her duties were primarily religious instruction, rather than reading, writing, and arithmetic.

  • Tom Hering

    Reading the U.S. EEOC statement above, I’m guessing the teacher’s minister status won’t hold water in this case unless her duties were primarily religious instruction, rather than reading, writing, and arithmetic.

  • Carl Vehse

    Joe, I agree with you that there are “tons of facts in dispute.” However both parties did present motions for summary judgment and it was granted, as evidenced by the Court order (and also noted in the U.S. Court of Appeals decision vacating the order).

    The question I have is whether the SCOTUS is limited to the material facts presented in the District Court case or can they go fishin’ for more facts?

  • Carl Vehse

    Joe, I agree with you that there are “tons of facts in dispute.” However both parties did present motions for summary judgment and it was granted, as evidenced by the Court order (and also noted in the U.S. Court of Appeals decision vacating the order).

    The question I have is whether the SCOTUS is limited to the material facts presented in the District Court case or can they go fishin’ for more facts?

  • Carl Vehse

    According to 42 U.S.C. Subchapter I, § 12113 (d) Religious entities:

    (1) In general
    This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

    (2) Religious tenets requirement
    Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

  • Carl Vehse

    According to 42 U.S.C. Subchapter I, § 12113 (d) Religious entities:

    (1) In general
    This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

    (2) Religious tenets requirement
    Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

  • DonS

    “Issue: Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.”

    This is the actual issue before the Court. The church/school argues that the teacher falls under the ministerial exception because she taught daily religion classes, and was fired because of disruptive behavior based on her alleged refusal to pursue in-church remedial processes rather than filing outside legal action.

    As Richard said above, bad facts make bad law, and this case has marginally bad facts, given that the plaintiff is a sympathetic figure because of her debilitating disability.

    The ministerial exception is vitally important to churches, given the intrusive nature of governmental interference in the workplace today. How can one argue that churches have full rights under the Freedom of Exercise Clause of the 1st Amendment, if the government is permitted to micromanage church employment relationships? This is the basis of the exception, and it is a necessary one.

    The ideal is that churches would be entirely exempt from state and federal employment laws for all of their employees, including their closely related and religiously-based enterprises, such as private schools, but that they would also be scrupulous in loving their neighbor and taking better care of their employees than government laws otherwise require. Most do exactly this, to the best of their limited financial ability. Unfortunately, however, not all do, and so we end up with these kinds of cases which do the Christian community no good.

    Hopefully, the Court will overlook the facts, and focus on the law, for the good of future Church-State relations. Both parties appear to have done some wrong here, and they need to work those issues out privately. However, if the Court does rule for the plaintiff, then hopefully that ruling will be narrow and circumspect, focusing on the specific status of this particular employee, and the fact that she, being female, had no authority to be a minister in the LCMS, and was rather merely teaching a curriculum developed by others in ministerial leadership in the church.

  • DonS

    “Issue: Whether the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.”

    This is the actual issue before the Court. The church/school argues that the teacher falls under the ministerial exception because she taught daily religion classes, and was fired because of disruptive behavior based on her alleged refusal to pursue in-church remedial processes rather than filing outside legal action.

    As Richard said above, bad facts make bad law, and this case has marginally bad facts, given that the plaintiff is a sympathetic figure because of her debilitating disability.

    The ministerial exception is vitally important to churches, given the intrusive nature of governmental interference in the workplace today. How can one argue that churches have full rights under the Freedom of Exercise Clause of the 1st Amendment, if the government is permitted to micromanage church employment relationships? This is the basis of the exception, and it is a necessary one.

    The ideal is that churches would be entirely exempt from state and federal employment laws for all of their employees, including their closely related and religiously-based enterprises, such as private schools, but that they would also be scrupulous in loving their neighbor and taking better care of their employees than government laws otherwise require. Most do exactly this, to the best of their limited financial ability. Unfortunately, however, not all do, and so we end up with these kinds of cases which do the Christian community no good.

    Hopefully, the Court will overlook the facts, and focus on the law, for the good of future Church-State relations. Both parties appear to have done some wrong here, and they need to work those issues out privately. However, if the Court does rule for the plaintiff, then hopefully that ruling will be narrow and circumspect, focusing on the specific status of this particular employee, and the fact that she, being female, had no authority to be a minister in the LCMS, and was rather merely teaching a curriculum developed by others in ministerial leadership in the church.

  • Joe

    Carl – the S.C. as an can look at anything in the record (.ie. anything that was filed below). So in theory they could remand the case because they think there are material facts in dispute – I doubt, however, they would have taken the case just to do that.

  • Joe

    Carl – the S.C. as an can look at anything in the record (.ie. anything that was filed below). So in theory they could remand the case because they think there are material facts in dispute – I doubt, however, they would have taken the case just to do that.

  • Carl Vehse

    In his “Reflections on Hosanna-Tabor — Justice Breyer’s statutory question, lawyer Marty Lederman noted:

    The ADA’s prohibitions against retaliation and coercion, however, appear not “under this subchapter,” i.e., in Subchapter I, but instead in Subchapter IV, and therefore are not subject to the tenets exemption. Accordingly, Perich’s attorney, Walter Dellinger, was correct in stating at oral argument that “Congress expressly did not apply the religious exemptions of the ADA to retaliation [claims].”…

    The school did not have a religious tenet prohibiting narcoleptics from teaching students; and therefore, as the case comes to the Court, Perich did have a good-faith, reasonable basis for threatening to go to the EEOC to complain of a case of substantive disability discrimination. Accordingly, she did have a “right granted” by the statute to turn to the EEOC, and the anti-retaliation/coercion provisions in turn apply. To be sure, the Establishment Clause requires the Court to accept Hosanna-Tabor’s representation that Perich’s turn to civil authorities itself violated the school’s religious tenet. But Congress did not extend its “tenets” exemption to cover an employee’s good-faith invocation of her substantive ADA rights. Therefore Justice Breyer’s proposed statutory fix is unavailing here, as even the school’s attorneys appear to acknowledge. (Indeed, the ramifications of Justice Breyer’s reading would appear to be fairly dramatic: If the ADA’s tenets exemption applied full-stop to church doctrines forbidding employees from invoking their federal rights before civil authorities, that would presumably mean that any church that construes Corinthians similarly to the interpretation of the Lutheran Synod would be entitled as a statutory matter to prevent all of its employees — not only “ministerial” employees — from exercising their statutory right to “oppose[] any act or practice made unlawful by [the ADA] . . . [and to] participate[] in any manner in an investigation, proceeding, or hearing under [the ADA].” It’s difficult to imagine that Congress would have intended such a result.

    Lederman’s prediction is that the Court will resolve the case on constitutional rather than statutory grounds.

  • Carl Vehse

    In his “Reflections on Hosanna-Tabor — Justice Breyer’s statutory question, lawyer Marty Lederman noted:

    The ADA’s prohibitions against retaliation and coercion, however, appear not “under this subchapter,” i.e., in Subchapter I, but instead in Subchapter IV, and therefore are not subject to the tenets exemption. Accordingly, Perich’s attorney, Walter Dellinger, was correct in stating at oral argument that “Congress expressly did not apply the religious exemptions of the ADA to retaliation [claims].”…

    The school did not have a religious tenet prohibiting narcoleptics from teaching students; and therefore, as the case comes to the Court, Perich did have a good-faith, reasonable basis for threatening to go to the EEOC to complain of a case of substantive disability discrimination. Accordingly, she did have a “right granted” by the statute to turn to the EEOC, and the anti-retaliation/coercion provisions in turn apply. To be sure, the Establishment Clause requires the Court to accept Hosanna-Tabor’s representation that Perich’s turn to civil authorities itself violated the school’s religious tenet. But Congress did not extend its “tenets” exemption to cover an employee’s good-faith invocation of her substantive ADA rights. Therefore Justice Breyer’s proposed statutory fix is unavailing here, as even the school’s attorneys appear to acknowledge. (Indeed, the ramifications of Justice Breyer’s reading would appear to be fairly dramatic: If the ADA’s tenets exemption applied full-stop to church doctrines forbidding employees from invoking their federal rights before civil authorities, that would presumably mean that any church that construes Corinthians similarly to the interpretation of the Lutheran Synod would be entitled as a statutory matter to prevent all of its employees — not only “ministerial” employees — from exercising their statutory right to “oppose[] any act or practice made unlawful by [the ADA] . . . [and to] participate[] in any manner in an investigation, proceeding, or hearing under [the ADA].” It’s difficult to imagine that Congress would have intended such a result.

    Lederman’s prediction is that the Court will resolve the case on constitutional rather than statutory grounds.

  • helen

    Tom Hering October 17, 2011 at 9:40 am
    helen @ 6, I suspect there are personality conflicts behind the whole situation. Isn’t that often the case? Someday we may know, when the legal actions have ended, and people are free to talk.

    There are also people who, when faced with a situation/illness they don’t understand, react by getting rid of the person who presents the situation/has the illness. Un Christian, but not uncommon.

    [I have had a neighbor (a Sunday School teacher!) justify stones thrown at a retarded boy who had only come on the block to sit in his wagon and watch the other boys play. His reasoning: "the boy would have to get used to it." I said, "Not in my yard, he doesn't!" ]

    Carl has probably read the material more thoroughly than I have, but I also saw a doctor’s certification of fitness for work, and no “subsequent symtoms” reported.

    IF the mess that is DRP, (and serves as nothing but a CYA for the bureaucracy) is now Missouri’s “religious tenet” we are in really sad shape. It’s a license to throw stones!

  • helen

    Tom Hering October 17, 2011 at 9:40 am
    helen @ 6, I suspect there are personality conflicts behind the whole situation. Isn’t that often the case? Someday we may know, when the legal actions have ended, and people are free to talk.

    There are also people who, when faced with a situation/illness they don’t understand, react by getting rid of the person who presents the situation/has the illness. Un Christian, but not uncommon.

    [I have had a neighbor (a Sunday School teacher!) justify stones thrown at a retarded boy who had only come on the block to sit in his wagon and watch the other boys play. His reasoning: "the boy would have to get used to it." I said, "Not in my yard, he doesn't!" ]

    Carl has probably read the material more thoroughly than I have, but I also saw a doctor’s certification of fitness for work, and no “subsequent symtoms” reported.

    IF the mess that is DRP, (and serves as nothing but a CYA for the bureaucracy) is now Missouri’s “religious tenet” we are in really sad shape. It’s a license to throw stones!

  • http://facebook.com/mesamike Mike Westfall

    Which article of the Constitution gives Congress the power to make laws about whom an employer may hire or fire?

  • http://facebook.com/mesamike Mike Westfall

    Which article of the Constitution gives Congress the power to make laws about whom an employer may hire or fire?

  • Joe

    Its in the “but its not fair” article or was it the “there ought to be a law” article …

  • Joe

    Its in the “but its not fair” article or was it the “there ought to be a law” article …

  • Richard
  • Richard

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