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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