Big day at Supreme Court for religious freedom

An extremely important religious liberty case is being argued in front of the Supreme Court today. I have been meaning to cover the case for months, but it kept falling into the deeper recesses of my guilt file. The case involves the firing of a Lutheran school teacher from a Lutheran school. The particulars of the case are unique and the story of the teacher who was fired is compelling. But because of the way the lower courts have ruled and because of the possible outcomes of a SCOTUS decision, today is just huge.

I’m going to excerpt this Baptist Press story for the details of the two sides in the case:

Cheryl Perich was a teacher at the Lutheran Church-run school Hosanna-Tabor, based in eastern Michigan, when doctors diagnosed her with narcolepsy and she missed work for several months. The school, its small staff stretched, hired a replacement teacher for the spring semester. Perich wanted to return to her job during the spring, but the school noted that it had hired a replacement for the semester; the school also wasn’t convinced she was physically ready to return to work. She threatened to sue if she wasn’t reinstated.

The school fired her, saying she had violated church teachings by immediately turning to legal action instead of going through the church’s own process for dealing with such disputes. Perich filed a lawsuit with the EEOC, alleging that the firing was retaliatory for her narcolepsy. That question of retaliatory firing could muddy the broader issue of whether religious schools have autonomy in personnel decisions. The U.S. Sixth Circuit Court of Appeals sided with Perich, saying she should not fall under the “ministerial exception,” as a church employee, so she could sue. The court drew out two columns titled “secular” and “religious” and tallied how many minutes of the day Perich spent on each. The court added the totals and concluded that she spent more minutes on secular education than religious, and so she did not fall under the “ministerial exception” for church employees.

The lawyers for the school blasted the circuit court’s “mechanistic” approach to Christian education.

So how well are the media covering it? I think it’s fair to say the lead-up to the case could have received more coverage — particularly on news pages as opposed to op-ed pages where most of the ink was spilled — but this is not a case of media silence.

For example, religion reporter Peter Smith of the Louisville Courier-Journal had a helpful piece on the matter. And it was written in such an engaging matter that it got picked up widely, including by USA Today. He begins by saying that the case is uniting an impressive interfaith group:

Leaders of Roman Catholics, Mormons, Presbyterians, United Methodists, Seventh-day Adventists, Hindus, United Sikhs, Muslims, Episcopalians, Reform Jews and Orthodox Jews are united.

So are the conservative National Association of Evangelicals and its liberal counterpart, the National Council of Churches.

So are devotees of Santeria, Yoruba and other religions you may not know.

Even the various Baptist denominations are all on the same side.

They all support the right of religious groups to hire and fire teachers who could be construed as “ministers” on grounds that would be otherwise discriminatory, whether due to race, gender and disability or other reasons. The case could affect hundreds of thousands of teachers and other employees in faith-based schools and organizations.

He explains that dozens of denominations have filed amicus briefs with the court in support of the freedom and that only one group, the Unitarian Universalist Association — has taken a contrary view.

He explains the Who, What, Where, When and Why and moves immediately into the “so what?” of the case, which he says revolves around the issue of the ministerial exception:

“The basic rationale underlying the doctrine seems straightforward,” wrote Howard Friedman, a professor emeritus of law at the University of Toledo, in the magazine Liberty.

“For a religious institution to thrive, it must be free from government constraint in selecting who will ‘preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large,’” Friedman wrote, quoting federal case law.

“Laws against religious discrimination in employment should not permit the government to tell a Presbyterian church, for example, that it must hire a rabbi,” he wrote.

But the question has gotten murkier in recent court cases in which religious groups claim that other workers besides the most obvious — clergy — are ministers and don’t have the right to challenge their dismissals.

That includes teachers, in the case of the Lutheran school.

Lutheran school teachers routinely teach the doctrines of the faith, no matter their subject area. But Smith shows how the ministerial exception is also used by various religious bodies to cover other folks, such as administrative assistants and professors at seminaries.

Some of the arguments for and against the school are laid out, although the arguments are certainly not exhaustive (nor could they be in a brief news article).

Smith did a good job of showcasing how broad the coalition of religious groups united in support of religious freedom over anti-discrimination laws, including Church of the Lukumi Babalu Aye and Templo Yoruba Omo Orisha. I do wish the story had gotten a bit more into the “free exercise” clause of the First Amendment, though.

For those interested in the arguments in the case and what it could portend for federal involvement in church decisions, you should check out this op-ed from historian Thomas S. Kidd in USA Today which highlights how the Obama administration did not side with religious groups in the amicus brief it filed:

But in a jarring departure from precedent, the Department of Justice argued in an August brief that the ministerial exemption, if it even exists, is exceedingly narrow, applying only to clergy whose duties are “exclusively religious” (forgetting that even ministers have many earthly duties). …

When framing the Bill of Rights, James Madison and the other Founders wanted the government to have no power to mandate church policies. They wanted no national denomination, either. So they prohibited Congress from making laws respecting an establishment of religion, and guaranteed churches and other religious organizations the “free exercise of religion.”

One cannot imagine a more obvious feature of an establishment of religion, or a clearer violation of free exercise, than the government dictating to a church that it must rehire a religious teacher, especially a person who has violated church teachings or behavioral codes. The Justice Department’s position, if vindicated, raises the possibility that courts and bureaucrats may, in the name of contemporary norms of fairness, begin requiring religious organizations to hire any number of candidates who do not accept that faith’s tenets. One could easily imagine future decisions forcing churches, synagogues, or mosques to hire employees who do not adhere to the tradition’s norms of sexual behavior, for example.

When Justice filed that opposition brief, it dramatically raised the stakes in the case. That’s because Justice opposes the existence of the ministerial exception altogether and argues that if the Court recognizes an exemption, it be narrowly construed as applying to people who perform “exclusively religious functions.” I have no idea whether the court would find this argument in any way compelling but if they did, it would dramatically change the landscape and open up churches to a wide array of discrimination litigation.

Just a huge, huge case. So let us know if you see any particularly good or bad stories coming out of the day’s arguments.

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  • Mollie

    Nina Totenberg at NPR weighs in with her take on the case, headlined “Go Away You Pesky First Amendment: Do Civil Rights Laws Apply To Parochial Schools?” Ok, maybe I made part of that headline up.

    But if you’re looking for the perspective of those who think that religious freedom should be second to civil rights laws, it’s a good read.

  • Scott Peters

    Not knowing all the details, I’m not sure why the teacher didn’t file for FMLA while she was treated for Narcolepsy. Our society has become way too litigious and I wish mediators would become more involved before people and governments spend thousands of dollars on legal costs.

    What ever happened to having people sit down and work out their issues without a bunch of attorneys getting involved?

    Regardless, the Supreme Court needs to be very careful about how they pursue any idea of “religious freedoms” and how they apply to private schools. People pay good money, while still paying taxes on property for public schools, for the best education they can find.

    Seems like most of these issues can, and should, be worked out between parties without getting the Supreme Court involved.

  • Rev. Paul T. McCain

    It is sad that a person who, supposedly, is rostered in The Lutheran Church—Missouri Synod, would pursue this matter as she has. The well known fact is that the Church has always had as one of the reasons for dismissing a servant of the church has been incapacity and incapability of fulfilling their duties. A teacher who suffers from a physical condition that would cause her to miss months of work, or perhaps worse yet, fall asleep during the day, can not serve in her position.

    In The LCMS our rostered teachers are considered part of the church body’s roster of professional church workers, or using the nomenclature the IRS understands, “Ministers of Religion.”

    This is a *huge* case for all religious organizations.

  • Mollie

    And an op-ed in the Wall Street Journal with some more about why folks are particularly concerned with what Justice is arguing. It includes a quote from Sonia Sotomayor that indicates the argument might not have much traction with this court.

  • Jeffrey

    A note. DOJ did not file an amicus brief, they are a party in the case representing EEOC.

  • Nicole Neroulias

    We heard from the church/school’s side (ministerial exception) over lunch at this year’s Religion Newswriters Association conference. At the time, several of us – I think Bob Smietana expressed this in a question at the time? – felt it would have been a more useful presentation if we could have heard from both sides. Otherwise, my general impression was that this isn’t an ideal “ministerial exception” case, given the disability angle and the issue that the teacher barely served in a religious capacity. But I guess you go to the Supreme Court with the case you’re given, not the case you wish you had.

  • Dave

    According to the on-line version of the amicus brief, a Sikh organization joined the Unitarian Universalists in support of the teacher.

  • Deacon John M. Bresnahan

    The Wall Street Journal Article by Michael Mcconnel is excellent. It looks at many angles of the case in a comprehensive manner usually not seen.
    What strikes me as particularly destructive of the First Amendment is the concept that the state can look at a church position and using some sort of a tally sheet,be the determiner of whether someone is covered by the “ministerial exception.” In general,this should be up to each religion
    For example, Catholic deacons are duly ordained and even considered by the Church as members of the Catholic hierarchy of bishop, priest, and deacon.
    Yet most deacons spend all day on a secular job to support themselves and their families. I can envision this as a possible excuse for all sorts of government mucking around in religion and the Church making the First Amendment virtually a dead letter–as slowly seems to have been happening since WWII.
    I wonder if we’ll ever see a long background or in-depth story titled “The Slow Demise of the First Amendment” in the mainstream media somewhere.

  • Mollie


    I agree on both parts. I know first-hand how terribly difficult it is to put panels together but the more dialogue from opposing sides, the better. And as for the case, I think it’s just a horrible case. The teacher and administrators of the school are my kind of Lutherans and I am just sick that it ever got to the point that it did. I firmly believe in the free exercise clause so I’m not sure how relevant the facts of the case are, but I do wish that Christians would work together better when difficult circumstances arise. How sad would it be if everyone lost a portion of their First Amendment rights because these folks couldn’t work out a better solution.

    I can’t really think of a better example, though, then bad cases making bad laws. Really unfortunate situation here.

  • Crystal Etzel

    Here’s the thing. Two actually. All pastors are ministers but not all ministers are pastors. In the LCMS pastors are ordained to minister and to dispense Word and Sacrament. Other “ministers” in the LCMS are school teachers,principals, etc. To the LCMS these servants would fall under the “ministerial exception” because the LCMS considers them ministers. They are called like pastors as well. They aren’t hired like public school teachers are.

    That Ms. Perich was teaching secular subjects is irrelevant to the discussion because ALL subjects taught in an LCMS school are taught with the understanding that God underpins them. In that sense there is no “secular” study at a parochial school. The 6th Circuit didn’t know what it was talking about.

    Read the amicus brief by the LCMS. It’s instructive.

  • Jeffrey

    This actually is a perfect case test the buy boundaries of a ministerial exception because it is the pivot point of disagreement. It’s fairly clear that the actual minister isn’t covered by civil rights laws, the dispute is over non-ministers, non-religion teaching/advising employees. So a kindergarten teacher who teaches Basic bible stories a half hour a day is a perfect test of how wide or narrow the exception is. What s the slippery slope to janitors, crossing guards, lunch ladies, admissions counselors, and nurses at a hospital.

    In terms of the journalism, while the “strange bedfellows” lead is cute, it isn’t really newsworthy since they aren’t strange bedfellows. It would be news if these groups actually disagreed since they are united in defending the same self-interested principle. They all have something to gain or lose in the outcome, which applies neutrally on left and right, Christians and minority religions.

  • Hugh Higgins

    This just hits me as another example of how intrusive government has gotten. At this point, I would almost be willing to give up all anti-discrimination laws, as applied to non-governmental institutions or corporations, rather than witness this society becoming a society of litigants, prosecutors, lawyers, juries, judges, and–us, the defendants. For the first time, I may be ready to vote Libertarian or even Republican if necessary. I don’t think the Democrats “get” individual rights, especially when it comes to religion.

  • dalea

    This caught my eye:

    “One irony and injustice in the ministerial rule is that women employees of denominations that do not ordain women suddenly become ministers at the moment they file a lawsuit,” the coalition wrote.
    It continued: “Although some Roman Catholic, Muslim and Orthodox Jewish women may not become priests, imams or rabbis,…the courts and churches confer ministerial status upon them just long enough to keep their lawsuits out of court.”

    The LCMS strongly opposes women ordination yet is here arguing that a women is part of its ministry. Very odd and should be a focus of the coverage.

  • Mark Baddeley

    This comment is probably going to be a line-ball as to whether it is about the journalism or the substance of the issue. What struck me when I read:

    The court drew out two columns titled “secular” and “religious” and tallied how many minutes of the day Perich spent on each. The court added the totals and concluded that she spent more minutes on secular education than religious, and so she did not fall under the “ministerial exception” for church employees.

    And the statement that Justice argued that either there is no ‘ministerial exception’ or if there is it needs to be construed as narrowly as possible, is the parallel in the UK.

    The UK seems to have gone down the same route – churches are only exempt from equal opportunity legislation for ‘ministers’ and these are defined as people for whom their job is primarily (in terms of calculating time per week) spent in liturgical and Christian teaching duties. And some people would like even those roles subject to equal opportunity legislation as well.

    It seems to me there is some great possibility for some stories looking at the parallels between the Obama administration’s views and the UK’s views on this, as well as any differences. Given the different approaches in the two countries to constitutional law, religious freedom and the like, I’m surprised both governments ended up in the same position contemporaneously.

  • Chris Jones

    They are called like pastors as well. They aren’t hired like public school teachers are.

    That’s the theory, but if a teacher can be “fired” by the congregation then it seems to me that that shows that she was hired, not called, by the congregation. A divine call is supposed to be for life. As I understand it, a called pastor in the LCMS can be removed only for teaching false doctrine or living in an immoral manner that denies the Gospel. If the “divine call” given to a teacher is the same as the “divine call” given to a pastor, then the conditions of employment for teachers should be the same as for pastors (i.e. you can’t fire them, but you can depose them (or “defrock” as it is popularly called) for immorality or false doctrine).

    Another report I read on this situation (I can’t recall where) did not say that the teacher was fired; it said that the congregation “rescinded her call.” That way of putting it just highlights the contradiction between what a divine call is supposed to be and what happened to this teacher.

  • Don Neuendorf

    As was noted above, called workers in the LCMS (whether pastors, teachers, directors of Christian education, etc.) may be removed for false doctrine, immoral life, OR for the inability to fulfill the duties of their call. As far as I know it’s been that way for 150 years in the LCMS.

    In regard to women “suddenly becoming ministers” when a lawsuit is filed: the LCMS has considered teachers to be called workers from its founding. When women were admitted to the ranks of teachers (but not to the roster of clergy) they were, eventually, also placed in that same category as called workers, or as the formal terminology goes “ministers of religion: commissioned.” (commissioned as opposed to ordained)

  • melxiopp

    I thought one of the major disagreements between the LCMS and the WELS is that WELS considers its teachers to be ministers and the LCMS disagreed.

    The WELS believes that there are many different forms of one, divinely established Ministry. These forms of the Ministry include pastor, Christian day-school teacher, staff-minister and others. The LCMS teaches that only the pastoral office is divinely established, while all other church offices are human institutions. (


    Wisconsin [WELS] teaches that the pastor of a local congregation is only one form of the divinely instituted public ministry. Other forms are teachers, professors, called administrators, etc. The specific form is determined by the church’s call. Missouri [LCMS] seems to teach that the only divinely instituted form of the public ministry is that of pastor of a local congregation. All other positions are auxiliary to this. However, there appears to be a number of different teachings on the church and ministry current in the Missouri Synod. (

    That “all pastors are ministers but not all ministers are pastors” seems to be splitting hairs. Where is the line drawn? Is everything a church spends time, talent or treasure on a ‘ministry’? And if so, does this make every employee and volunteer of a church a ‘minister’? Can a church have employees that are simply employees? Must the courts become expert in and than apply each religious body’s own doctrine to the question of who is clergy vs. minister vs. employee vs. volunteer, etc.?

  • Mollie

    A few things to keep in mind. While the LCMS has particular methods for calling teachers — and pastors — those are unique to it. As are the distinction between Word & Sacrament ordained ministry (pastors) and inculcation in the faith (teachers). Some Christians aren’t sacramental and see less of a distinction between those two roles but that doesn’t mean that Baptists, for instance, shouldn’t be protected by the First Amendment.

    As for people confused by how females can teach the faith yet not be ordained into Word and Sacrament ministry, it’s probably helpful to think of similarities with nuns in the Catholic tradition.

  • bob smietana

    When the Becket Fund lawyers representing Hosanna-Tabor Lutheran Church spoke at RNA, they said the Justice Department is trying to eliminate the ministerial exemption.
    Doing so would allow, for example, a rabbi to sue his congregation.
    But that’s not what the government’s brief argues. Instead, this is the issue at hand: “Whether the judicially recognized “ministerial exception” to the Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327 (42 U.S.C. 12101 et seq.) bars review of the termination of a parochial school teacher who, although formally titled a commissioned minister, teaches primarily secular classes and performs the same job duties as noncommissioned lay teachers.”

    In other words, it’s a question of whether the ministerial exemption applies to Cheryl Perich, not whether the ministerial exemption is valid in general.

    Most of these First Amendment cases are fact-specific and this one has some really interesting facts- such as that the LCMS does not ordain women as clergy and that the church in question says it fired Perich for violating church teaching -because she threatened a lawsuit – but the LCMS in the past has been a party to lawsuits, so there doesn’t seem to be a church teaching against lawsuits.

  • bob smietana

    One other interesting thing about this case, that applies to another issue in the news these days. The church in question is arguing it should be exempt from civil law on religious grounds. It’s making that argument that in some cases religious law should trump civil law, according to the First Amendment.

    However, that principle is exactly what the anti-shariah law groups in Tennessee, Oklahoma, and other states are so upset about. They argue that religious law should never trump civil law. Just something to keep in mind

  • dalea

    TurboTax even has a very helpful explanation about ministerial taxation, which clears up the subject of who is a minister and who is not:

    To be treated as a minister, you must be duly ordained, commissioned or licensed by a church or church denomination and have the authority to conduct religious worship, perform sacerdotal functions and administer ordinances or sacraments. The same goes if you are a Christian Science practitioner or reader. Your earnings from services you performed are generally subject to self-employment tax, with one significant exception we’ll discuss next.

    So, the question of determining if she is a minister should rest on her tax returns. If she filed as a minister, and if the church treated her as one when doing withholding, the matter is cleared up. But if she was treated as an employee for tax purposes, then she is an employee.

  • Mollie

    bob smietana,

    Becket is just one of many groups that reads the Justice petition as questioning the ministerial exception altogether. See, for example:

    But two weeks ago, the Department of Justice filed an opposition brief that dramatically raises the stakes in Hosanna-Tabor. Rather than simply arguing that the ministerial exception should not extend to the teacher under the facts of this case, DOJ’s brief disputes the general existence of the ministerial exception. (It instead acknowledges only that the Establishment Clause might bar a court order reinstating a minister or litigation that requires a court to resolve a dispute over religious doctrine. See Brief at 32-36. It opposes recognition of any “prophylactic categorical exemption,” and argues, only as a fallback, that if the Court nonetheless recognizes such an exemption, the exemption should be very narrowly limited to those employees who perform “exclusively religious functions.” See Brief at 48-51.)

  • Mollie


    As was explained upthread, the LCMS has ministers-commissioned (teachers, for example) and ministers-ordained (pastors).

  • Mollie

    By the way, one never knows how these things will go I suppose, but the folks I spoke to who witnessed oral arguments today said their impression was that there was unanimous agreement in support of the ministerial exception and that the test applied by lower courts (minutes here and there) was idiotic.

    So that’s good news for those folks who support broad First Amendment rights. I didn’t speak to anyone who was advocating for the opposing view, however.

  • melxiopp

    Mollie, the point seems to be that US tax law assumes one is a minister only if he/she has been:

    1. ordained, commissioned or licensed (LCMS pastors and teachers both fit this bill, as you point out)

    2. by a church or church denomination (if the teacher was hired by the school rather than the church, this may be pertinent) and

    3. have the authority to conduct religious worship, perform sacerdotal functions and administer ordinances or sacraments (the LCMS does not allow commissioned female teachers to perform these activities).

    Thus, the teacher is not a minister according to US tax law via TurboTax. Heck, by claiming teachers are ministers, the LCMS might actually accidentally back itself into a theological position it does not (wish to) hold.

    The point isn’t whether my reading of the law and the LCMS’s doctrines is correct, it’s that there is a lot to deal with when discussing this issue – it’s difficult to understand how various churches, religions and laws define “minister”. It would be helpful if journalists would quote experts who can enunciate the complexity of the theological and legal issues at stake – not just the parties on each side of the debate.

  • Julia


    Sounds like Catholic nuns are not considered ministers by the IRS.

    On the other hand, I am allowed to baptize – are all Catholics ministers, including lay people and nuns as well as priests? Additionally, Catholics believe the bride and groom administer the sacrament of matrimony and the priest is just an official witness.

    My Catholic grade school, high school and college mingled religious insight into almost all the classes I took. Maybe with the exception of math.

  • Mollie

    Ted Olsen has a great write-up of the day’s proceedings over at Christianity Today.

    It sounds like the government lawyer wasn’t aruging against the ministerial exemption so much that the First Amendment wasn’t really an issue in the case. This apparently went over like a lead balloon among the justices.

  • Ted Olsen

    Bob, et al: The govt lawyer didn’t argue that the ministerial exemption doesn’t exist, but that its existence is based on the right of expressive association, not the First Amendment.

    BUT you are right on to draw the connection between this case and Shariah discussion. That is a brilliant insight, because one of the key things at stake here is the LCMS desire to settle its employment disputes in its own synod system, not civil courts. It was the employee’s desire to turn to the civil courts rather than religious arbitration that got her fired. And it’s the Obama administration arguing that no, religious doctrine shouldn’t trump the right to turn to civil courts: “The government’s interest in preventing retaliation against those who would go to civil authorities with civil wrongs is foundational to the rule of law.”

    FWIW: My writeup on the oral arguments is here:

  • Ted Olsen

    Jinx! Mollie, you owe me a Coke.

  • bob smietana

    Ted– nice work, as usual.
    The oral arguments are fascinating, especially Bryer’s quote – ‘This is tough and I’m stuck.’
    The justices didn’t seem to buy the argument that a church should have unlimited authority to label people as ministers. But they also didn’t seem to know where that limit should be.

  • Robert

    It is important to note that in addition to false doctrine, immoral lifestyle, or inability to perfom one’s duties, LCMS entities also terminate workers’ calls solely for financial reasons, just like a secular company. So, the line between the two kingdoms is, in practice, very blurry. Perhaps the Lord will use this case to clarify things a bit.

  • Justin

    Just a point of clarification…Bob, the anti-shariah laws, from what I understand, are more for preventing civil laws from being based on a purely religious juridical codification outside of the constitution and other general methods of civil lawmaking or allowing them to have any special status in how judgments are rendered in courts. This case however seems completely different, in the nuanced way court cases always are, in that it is dealing with how religious bodies are or aren’t allowed to deal with ministerial duties within the body itself. Therefore, as far as a court case would go, this case would, at least to me, seem to have little, if any, parallel to the issues dealt with in the anti-sharia law making situations.

  • Julia

    For Catholics, singing in the choir is participating in the liturgy in a way that the assembly is not. A choir director is required to understand the religious calendar and how that affects what is to be sung at Mass. It would be awful to be forced to hire anybody who is proficient in music, but knows nothing about liturgical proprieties and requirements.

    The problem is using the word “minister”. It’s used differently or not at all by various religious groups.
    The language needs to be changed.

  • Bob Smietana

    Just a point of clarification…Bob, the anti-shariah laws, from what I understand, are more for preventing civil laws from being based on a purely religious juridical codification outside of the constitution and other general methods of civil lawmaking or allowing them to have any special status in how judgments are rendered in courts


    Actually, what the church is saying in this case is that it does have special status so the ADA doesn’t apply to them.

  • Mollie

    Justin says anti-Sharia laws are about “preventing civil laws from being based on a purely religious juridical codification outside of the constitution” and Bob says “actually” the church is pointing to its First Amendment freedoms.

    Which are … in the Constitution.

    So while I am interested in how this ruling could relate to anti-sharia efforts, I don’t quite get how you’re saying it would.

  • Jeffrey

    If a fourth grade math teacher sued her Islamic school, the school wouldn’t be able to fire her because she went to the courts because she had a Shariah-based arbitration available. Under the anti-shariah laws, that arbitration wouldn’t be recognized because it is based in Shariah. But that’s exactly what the LCMS I’d arguing here: wencan fire fire her because she refused to bring her dispute to a religious-run arbitration based in LCMS law.

  • rob in williamson county

    How sad would it be if everyone lost a portion of their First Amendment rights because these folks couldn’t work out a better solution.

    Indeed–this sums up the entire issue for me, and, although I sympathize with the teacher’s position, the LCMS couldn’t follow any other course once the lawsuit was filed. I hope the (majority of) justices take a strict constructionist stance…and ask themselves “WWJMD” (what would James Madison do). I wish both parties could have better applied Paul’s words in 1 Corinthians 6: “Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother takes another to court—and this in front of unbelievers!”

  • sari


    I think the anti-shariah laws specifically address changing civil law to conform to religious law. At the same time, there is definitely a push for the secular to dictate the sacred, be it proposed anti-circumcision legislation in CA that lacks a religious exemption or efforts to ban kosher/halal slaughter (already effected in some European countries and New Zealand). It’s also a major reason, imo, that religious institutions are so against legislation to legitimate gay marriage.

    The legal definition of “minister” suggests that the church paradigm is being applied, incorrectly, to all religious institutions.

  • Justin


    The whole internal activity versus external activity of a religious body is what the distinction is here. The ADA would not apply because a teaching position within the system of the LCMS is considered a ministerial position (i.e. a completely internal activity within a religious body, church discipline light one might say) and thus would absolutely be covered under the protection provided by the First Amendment, as Mollie has noted. The anti-sharia lawmaking efforts is an attempt to keep court decisions and civil laws from being determined by religious juridical laws (e.g. not applying the book of Leviticus in and of itself as a direct sourcebook to write laws of the land or to make court decisions based on the juridical punishments found therein, to use an example from the Christian/Hebrew scriptures), an attempt push internal religious laws out from the internal church governmental aspects of a religious body into the external life of the secular laws of the Nation or a particular state.

    The State has every right under the Constitution to keep direct borrowing from religious juridical laws out of the secular laws and court judgements of the land, it does not have the right to decide how internal ministerial duties are judged or what bylaws those duties will be judged by within a religious body (with the exception of direct physical harm done to its citizens. i.e. a church body attempting to kill or maim a member based on a decision/bylaw within the church governmental set up).

  • Justin

    But we are getting far afield from directly dealing with how this piece was actually reported in the press, feel free to respond, Bob, but I will stay away from dealing with the issue that the piece deals with itself any further lest my posts start wearing out their welcome and start getting spiked.

  • Craig

    Regarding the Shariah Law discussion, I think clarification is important. In predominately Muslim countries, “Shariah Law” is THE law. It doesn’t address clergy issues or internal church issues exclusively. Shariah Law also deals with divorces, child custody and other civil matters. “Cannon law” as the term is used in the U.S., essentially deals with rules and regulations for the internal governance of the church including the selection and expulsion of ministers.

  • Karl

    In an ideal situation, her case should depend on something like whether the LCMS has a functional arbitration system and whether she agreed that she would not pursue any litigation in civil courts. The whole situation sounds sad.

    Paranoia: Perhaps people want to get rid of the ministerial exception so that, say, Catholic priests or CCD teachers could sue if they are disciplined for entering homosexual unions. This is eerily reminiscent of the attempt to require that parishes have lay-trustee ownership (i.e., the diocese doesn’t own the property).

  • Bob Smietana

    The big question in this case is what does the word “minister” mean in a legal sense in the ADA. Does it mean clergy – pastor, rabbi, etc– or does it mean “anyone who teaches religion.” The lower court ruled it basically meant clergy – the church’s lawyer argued at the Supreme Court that minister means means anyone who teaches religion.

    On the Shariah law issue, it doesn’t matter how that religious law is applied overseas. It matters how US courts treat Shariah or any religious law. The US has a long history of deferring to religious law in certain cases. The Lutheran church is this case is arguing that its religious rules trump civil law.

  • Mollie

    Bob Smietana,

    Everything I read indicated that the church was arguing that the First Amendment of the Bill of Rights in the U.S. Constitution prohibiting government from prohibiting the free exercise of religion trumps anti-discrimination laws. Did I misunderstand the First Amendment argument? Were they also arguing — along with Justice lawyers — that the First Amendment wasn’t in play? And what was their strategy in doing so? The First Amendment would seem like the obvious defense here ….

  • bob smietana

    Hi Mollie:

    You’re right — they’re arguing that the 1st Amendment requires the court to defer to the church in this case.
    In essence, they are saying the dispute between Perich and the church is a religious dispute and so the civil law doesn’t apply. Their lawyer argued she was fired for violation religious teaching.

    The 1st Amendment issue is what brought the anti-shariah law bills to mind – because those bills want to prevent civil courts from deferring to religious teaching.

    This case is also interesting because of the dispute also over what the word “minister” means – with the church saying that it’s anyone who teaches religious content – and the government saying that it refers to people whose jobs are primarily religious

  • Craig

    Mollie, et al: I’m a lawyer. I read some of the briefs and the transcript of the the oral argument. Here’s my take:

    1. The Church is taking the position that the first amendment ministerial position applies and knocks this case out of Court. They are also arguing that the ministerial exception trumps all claims unless they are a sham. (Note: I think the Churh’s attorney didn’t push the Court to say “all claims no matter what” which would have been the most extreme position.

    2. The ex-teacher/minister originally said she “wasn’t a minister” even though she pretty much dropped that argument. She took a parsonage and was “called” by the church etc. She’s now taking the position that the ministerial exception should apply only to folks who are primarily ministers and not teachers who also handle religious subjects, lead prayers, etc. She also adopted the U.S. position which was:

    3. That no Church is “above the law” and is allowed to discriminate or retaliate for claiming one’s rights. In essence, what if a church fires an employee for reporting child abuse or threatening to do so? (This example was used by Justices Ginsburg and Sotomayor). Justice Scalia was “shocked” by the extreme of the government position that unless a minister was dismissed for what I would call “theologic reasons” then the whole of civil law (especially as it relates to retaliation claims, although I’m not clear on that) would apply.

    The problem with the government’s position is that a minister/priest/pastor/rabbi, etc. who gets dismissed from employment can claim that it was based on a pretext of something else (i.e., discrimination based on age, gender, races, etc.) and sue. That would put the government in a position to determine whether or not the Church engaged in a religious decision or a non-religious decision in firing. Scalia’s example was: a woman writes on cannon law. She is fired by the church. The church says: her research on cannon law was flawed. Woman says she was fired because she was a woman. Now the Court has to review the cannon law papers and say: “was this valid theology on cannon law”? That would violate the first amendment.

  • Craig

    To clarify my post above: the church’s position was that a “sham” would only be in play if a church assigned everyone in its employ as a “minister.” For instance if the custodian was “ordained” to wax the floors, etc. This is in contrast to “pre-text” meaning that some one was let go for discriminatory reasons but a pre-text is used that it was based on ministerial performance or belief.

  • Joshua Theilen

    While I do not want the government intruding in how churches “hire” or “fire” people, especially teachers and preachers, I am amazed that no one from the church/school side of things is asking questions as to whether or not the church/school has a responsibility to take care of a person that they have Called. It seems rather unmerciful to me that a teacher who has a definite physical disability would be pushed aside so that the church could save money. While the government should stay out of it, the church has a moral responsibility to do everything that it can to support its called workers (to use a marriage analogy) “in sickness and in health.”

  • Maine DeMolay Jr Couns

    very good