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Publication: The Humanist
Date published:
Language: English
PMID: 24075
ISSN: 00187399
Journal code: GTHU

Catholic churches are under no obligation to hire women priests, and if a Presbyterian pastor suddenly decides to start frequenting a Mormon temple, the church can fire him. No questions asked.

But what if a church decides to fire a minister simply because he's too old, or he gets sick or they just decide he's the "wrong" race? Is this OK?

It is according to the U.S. Supreme Court. In an important decision handed down on January 11, 2012, the high court for the first time embraced a controversial legal concept called the "ministerial exception."

The "exception" is to the nations civil rights laws. Most employers must abide by anti-discrimination statutes. They can't fire you because of your race, religion, national origin, sex, or disabilities.

Religious groups get some exceptions to these laws when it comes to hiring and firing ministers. After all, we wouldn't want the government telling houses of worship whom they could and could not place at the pulpit.

Yet it's important to remember that the ministerial exception is a court-created rule, and it's only about forty years old. While many lower courts have adopted this standard, the Supreme Court wasn't given an opportunity to address it until last year.

A case reached the high court dealing with a Michigan woman, Cheryl Perich, who was fired from a Lutheran private school after she took leave to seek treatment for narcolepsy. Perich's condition was brought under control, but when she tried to return to work, officials at the school said they had replaced her and didn't want her back Perich, believing she had been discriminated against on the basis of her illness, sued. The federal Equal Employment Opportunity Commission backed her suit.

If Perich had been working at a public school or even a secular private school, her case probably would have been a slam dunk. She would have won and either regained her job or been given some type of financial compensation.

But there was an important wrinkle: Perich had sought and secured status as a "called" teacher at the Hosanna Tabor Evangelical Lutheran School. In Lutheran parlance, this means she was responsible for not just education in secular subjects but also some religious duties. The "called" status, which Perich worked toward for six years, made her a minister, school officials argued. Perich countered that she spent most of her time teaching secular subjects and wasn't really a minister.

The question was, could the church fire her for reasons totally unrelated to religion? No one disputes that if Perich had joined Scientology, the church could have shown her the door. But she didn't join Scientology. She got sick. Was that reason enough?

The Supreme Court said yes, because Perich was in fact a minister. The ministerial exception, the high court declared, is valid and applies in this case.

Interestingly, this was a unanimous ruling. The Supreme Court these days is divided along sharp ideological Unes, and church-state cases are almost never unanimous. So what's going on here?

Sure enough, a close reading of the opinion in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission shows how unanimity was reached: It is a very narrow ruling that applies only to ministers.

The high court clearly expects to be revisiting the issue. On the most compelling questions, it simply kicked the can down the road. The lead opinion, written by Chief Justice John G. Roberts, is blunt.

"The case before us is an employment discrimination suit brought on behalf of a minister, challenging her church's decision to fire her," Roberts wrote. "Today we hold only that the ministerial exception bars such a suit. We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise."

And arise they will. Thanks to the spread of "faithbased" initiatives, houses of worship are extending their reach into the social-service arena. Many religious groups hire people outside their faith to staff these projects.

Houses of worship also hire people who clearly don't have ministerial duties. A secretary who handles clerical tasks and a custodian who tends to the building and grounds are examples. The right of churches to restrict even these jobs to members of their faith is protected- but can they now fire them, even if they belong to the church, simply by claiming that they, too, fall under the ministerial exception?

We don't know. Justice Clarence Thomas ventured into this territory a bit, asserting in a concurring opinion that courts should "defer to a religious organizations good-faith understanding of who qualifies as a minister."

Justices Samuel A. Alito and Elena Kagan didn't go that far. In their concurrence, they said courts should look at the specific duties employees perform at houses of worship and opined that the exception should apply to any person "who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith."

But six justices remained mum on the subject, meaning that we won't know where they stand until this issue surfaces before the high court again.

Humanists might be tempted to look at all of this and shrug. Who cares what the churches are doing? I submit that such an attitude would be a mistake. As I mentioned, houses of worship have extended their reach into society in recent years. I know humanists who have worked for religious schools, religious social-service agencies, and other religious entities. Will these employees enjoy any sort of job protection in the workplace? Can their lack of belief be used as grounds to fire them from positions that don't involve or require the imparting of religious views?

It all depends on how the courts ultimately define "minister." And for that decision, we must wait another day.

Author affiliation:

Rob Boston is senior policy analyst at Americans United for Separation of Church and State and a board member of the American Humanist Association.

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