U.S. Supreme Court Hears Oral Arguments in Crucial Religious Freedom Case

Joe Hepworth

Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC was argued in the Supreme Court on October 5, 2011. A Wall Street Journal editorial summarizes the case:

[The case] concerns a commissioned minister, Cheryl Perich, who taught elementary school and led chapel devotions at a small Lutheran school outside Detroit. Ms. Perich became ill and was replaced in the classroom by a substitute. In the middle of the school year she sought to return and then, instead of attempting to work out the dispute through the church’s reconciliation process, she threatened to sue. As relations broke down, the church congregation voted to withdraw Perich’s “call” to the ministry, and she ceased to be eligible for her prior job. She sued under the Americans with Disabilities Act, with the support of the federal Equal Employment Opportunity Commission.

The federal statutes outlawing employment discrimination based on race, sex, age and disability contain no express exception for church employers. But for 40 years lower courts have applied a “ministerial exception,” which bars the government from any role in deciding who should be a minister. Courts have reasoned that the separation between church and state protects the ability of churches to choose their own clergy just as it protects the state from any control by churches. The Supreme Court has never spoken to the issue.

But who counts as a minister? Cheryl Perich’s duties included leading students in prayer and worship, but she also taught secular subjects, using ordinary secular textbooks. The sole disagreement in the lower courts was whether her job was sufficiently religious to be considered ministerial. The Supreme Court will consider, for the first time, how to make that determination.

As usual, the Court focused the arguments. Several seconds into Mr. Laycock’s argument on behalf of the church, Justice Ginsburg questioned whether the church’s failure to decommission Perich as a minister meant that the church still considered her to be qualified. Justice Sotomayor focused on the so-called “pretext exception”to the ministerial exception, noting that the ministerial exception cannot be a pretext for discrimination. Justice Alito, noting that the ministerial exception was not new, asked whether there had been a significant number of pretext cases litigated (Mr. Laycock was aware of only two that arguably fit that characterization).

Justice Kennedy posed a question concerning retaliation, noting that Perich could not even get a hearing on retaliation if the ministerial exception applies. Justice Scalia joined the argument and made the point that “It’s none of the business of government to decide what the substantial interest of the church is.”

Chief Justice Roberts asked how the Court decides who is covered by the ministerial exception and who is not. Justice Ginsburg questioned whether the extent of religious duties mattered or whether commission as a minister is all that matters. Justice Scalia then questioned whether the courts could determine whether a commission as a minister is a sham, wondering whether a sham is different from a pretext. Mr. Laycock conceded that the courts could determine whether someone was a minister for purposes of the exemption. The Chief Justice took the argument further, noting that different churches have different ideas about who is a minister. The argument then turned to the definition of a minister.

The Chief Justice asked the first question to the Solicitor General, arguing for the Justice Department: “Is the position of the United States that there is a ministerial exception or that there is not a ministerial exception.” Ms. Kruger responded:  “[I]f the ministerial exception is understood as a First Amendment doctrine that governs the adjudication of disputes between certain employees and their employers, we agree that that First Amendment doctrine exists.” The Chief Justice narrowed his question:  “Is there anything special about the fact that the people involved in this case are part of a religious organization?” Ms. Kruger seemed to respond that there was not:  “[W]e don’t think that the job duties of a particular religious employee in an organization are relevant.”

Justice Scalia remarked that the United States’ position was “extraordinary.” “We are talking about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application?”

Justice Alito asked whether the United States accepts the proposition that one of the central concerns of the Establishment Clause was preventing the government from choosing ministers. Ms. Kruger responded:  “No, Justice Alito, we don’t dispute it. What we do dispute is that what is happening when the government applies generally applicable anti-retaliation law to a religious employer is that it is choosing a minister on behalf of the church.”

Justice Breyer stated that it’s “obvious” that the government could not tell the Catholic Church that it had to ordain women, and asked how telling the Lutheran Church that it had to allow its ministers to sue in civil court was different. Ms. Krueger attempted to distinguish the two:

The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are deeply rooted in religious doctrine. But the interests in this case are quite different. The government has a compelling and indeed overriding interest in ensuring that individuals are not prevent from coming to the government with information about illegal conduct.

Justice Alito followed up by asking if the government were not asking the courts to make a judgment about the relative importance of church doctrine. Justice Kagan then asked whether the United States accepted the ministerial exception for substantive discrimination but not for retaliation. Ms. Krueger attempted to avoid the question until the Chief Justice interposed, “I think that question can be answered yes or no.” Ms. Krueger eventually seemed to answer with a qualified “no.”

A decision is expected before the end of the year. The transcript of the oral argument is available here. The Wall Street Journal published an editorial by Michael W. McConnell, who wrote an amicus brief on behalf of major Protestant denominations. The editorial is available here. An interview of Bill McGurn, Wall Street Journal columnist, discussing the case is available here.  

Photo:  Cheryl Perich at the Supreme Court, 5 October 2011, by UDC Law Student and ICLRS Extern Megan Taylor