Church-State Separation Case Impending

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Mark your calendars. October 5th is the scheduled oral argument before the Supreme Court of the United States for Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission

The long and the short of it: The EEOC has rules about hiring and firing designed to avoid discrimination. Churches claim that they need to be able to discriminate (or at least not be held accountable for discrimination) because it is their religious thang to hire and fire who they want because they are churches. More specifically, from one perspective, pastors and such are “called” not really hired, and from another perspective (leading to the same outcome) church communities, they say, need to be able to chose their own religions.

Like if they wanted to fire Jesus, back in the old days, the Roman version of the EEOC would have no case if it claimed that the church was being, say, antisemitic.

There is a law that has been on the books for decades that seems to provide this exception for churches, but that is being challenged.

Here is an abstract from Cornell’s Legal Information Institute of the case:

Respondent Cheryl Perich taught for five years at Petitioner, Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”), including four years as a commissioned minister. In 2004, Hosanna-Tabor hired a new teacher to fill Perich’s position after Perich missed several months of teaching due to narcolepsy. When Hosanna-Tabor did not permit Perich to return to her former position, Perich threatened to sue under the Americans with Disabilities Act (“ADA”). Hosanna-Tabor fired Perich, and Perich initiated legal proceedings with the Respondent Equal Employment Opportunity Commission (“EEOC”), alleging that Hosanna-Tabor fired her in retaliation for threatening to sue. Hosanna-Tabor argues that the ministerial exception to the ADA, which prevents employment suits against religious entities by their religious employees, bars Perich’s lawsuit because she fulfilled an important religious role. Perich and the EEOC contend that there is no ministerial exception under the anti-retaliation provisions of the ADA, and that the Establishment Clause, freedom of association principles, and Free Exercise Clause do not bar her suit. The United States Court of Appeals for the Sixth Circuit determined that Perich did not fall under the ministerial exception because she taught secular subjects with minimal religious components. The Supreme Court will decide whether the ministerial exception applies to a teacher at a religious school who teaches both secular and religious material.

According to Howard Friedman (a law expert guy):

Hosanna- Tabor raises the question of how many other employees of religious organizations should be subject to the same risks of having no recourse when they have been dismissed for frivolous or perverse reasons having no relation to religious doctrine. The 6th Circuit held that whether an employee is a “minister” for purposes of this exemption depends on whether “the employee’s primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.” It found that Cheryl Perich’s duties were not primarily religious so she could pursue a claim that she was dismissed in violation of the Americans With Disabilities Act. Some other circuits have concluded that the ministerial exception applies so long as an employee of a religious organization has some religious duties or responsibilities, even if those are not the person’s primary duties. That test would have precluded Perich from suing.

Churches. They want to act just like businesses. But then they want to be treated like something special. This is clearly a cake-eat-also situation.


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5 thoughts on “Church-State Separation Case Impending

  1. Yeah, this would be more like if FTB were to insist that all employees of its web host firm must be atheist (or at least agnostic, I suppose) rather than the actual bloggers.

  2. Actually, it’s not like either of those things.

    It’s more like if FTB had an atheist blogger that they were also paying to do tech support, and the blogger got sick and they decided to fire her, and the blogger tried to sue to get her job back, and FTB said, “Mumble mumble, that doesn’t count!”

    Let’s be clear here, the question here is not whether the ministerial exemption is appropriate. The question is on the limits of the ministerial exemption. Randy Owens describes one possible limit to the ministerial exemption that would likely save Perich’s case. But we don’t even need to get that far, because Hosanna-Tabor didn’t fire her because of her beliefs, they fired her because of something completely unrelated, and then tried to use the ministerial exemption as legal cover. That’s fucked up, and frankly, religious people should be a lot more pissed off about it than atheists, because it is making a complete mockery of the ministerial exemption.

    Even if you think, for example, Catholic schools should be able to discriminate on the basis of their dumb beliefs in hiring any employee — even insisting that the janitor cannot be gay, for instance — even if you think that, Hosanna-Tabor’s actions are still fucked up.

  3. I hope this case will also remove, or lead to the removal off, the “religious purity oath” requirements that “faith-based” businesses can demand from their employees, whether they conduct religious business or not.

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