The Ministerial Exception Makes It to the Supreme Court

The Supreme Court this week granted review on the issue of whether religious organizations have a constitutional right to discriminate against their employees. That is right—there is a legal argument that religious organizations should have a constitutional right to treat their employees in ways no secular organization could.

Although the lower courts have been entertaining arguments in this sphere for decades, this is the first time the Supreme Court has waded into what is called the "ministerial exception." Don't be misled by the name of the doctrine, though. These cases do not involve simply ministers, priests, or rabbis. Religious organizations obviously should have a right to choose their clergy according to their own lights.

The doctrine, though, was extended to include others who are not clergy per se, e.g., teachers whose role is more secular than religious, as in this particular case.

The case is Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, and involves teacher Cheryl Perich. She developed narcolepsy and, therefore, took a medical leave. The head of the school promised to hold her job for her. When her health improved, she returned to the school, but was told she could not come back yet. She had to wait until the beginning of the next school year.

She argued that the school violated the Americans with Disabilities Act ("ADA") by excluding her on the basis of her illness. The church school has responded that it had the power to remove her for disobedience to its leaders' order to wait until the next year, regardless of the ADA.

Then, in the courts, the school raised the flag of the First Amendment, arguing that she was a religious employee and the courts should not interfere. She taught secular subjects but also some religion classes and led the students in prayer.

In most employment contexts, an employer who behaved like the church school in this case would be accountable to state and federal anti-discrimination laws protecting the sick and disabled. The United States Court of Appeals for the Sixth Circuit found that the First Amendment was not a bar to her claims, and, therefore, concluded that the church could be liable under the Americans with Disabilities Act.

This case reminds me of Lynette Petruska's struggles. She was chosen by a Catholic university to be its chaplain. There was no requirement that the position be held by a priest and, therefore, it was open to a woman. The school, however, eventually shoved Petruska out of her position to replace her with a man. It was gender discrimination. The United States Court of Appeals for the Third Circuit held that she had no rights, because the university was religious and she was a chaplain, so gender discrimination was their right.

At this early stage in the case, in this column, I will not delve into the niceties of the legal doctrine that will be debated at the Court. Rather, I want to paint the big picture for my readers so that they can understand what is happening in this and other related cases.

There are two sides of this debate. First, there are the religious groups, which have been trying to construct a moat or a wall around religious institutions that would shield them from accountability for discrimination against their employees. They are fond of arguing for their "autonomy" from the law. They trade on the American inclination to trust and revere religious institutions.

On the other side are the employees who find themselves shocked by a religious institution they intuitively trusted that fires them in violation of our shared cultural norm against many kinds of discrimination. Cases have involved racial, gender, and disability discrimination. They also have involved sexual harassment. For example, seminaries have argued that seminarians may not bring a sexual harassment claim after the seminarian was sexually propositioned by superiors.

This is a clash of old-time First Amendment thinking—which treats religious institutions as benign institutions that should be left to their own devices—and civil rights. Americans have an instinct for fairness and justice, and assume that if anyone, including their religious employer, treats them discriminatorily, they should have legal recourse. But religious institutions and their lawyers sink tremendous resources into blocking such legal recourse. (Never forget—all those who hold power are likely to abuse it in some way, and religious institutions are run by humans, not gods.) The church in this case is seeking the right to exclude the courts from "interfering" with their employment decisions.

If the church school wins this case, which it should not, I think that Congress and the state legislatures owe it to potential employees of religious institutions to warn them of their lack of protection from invidious discrimination. Most come into such institutions expecting that they will receive better treatment than your average corporation. Without such a warning, employees unwittingly place themselves in a position of weakness and risk at work. All religious institutions should be required to include language in their employment contracts that states the following:

This is a religious institution, which treats all of its employees as though they are religious. You must understand that that means that we will take the position if we discriminate against you that the federal and state anti-discrimination laws cannot apply. Therefore, if this institution engages in invidious racial, gender, or disability discrimination against you, you may have no legal recourse.

This is what is at stake in this case.

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