US Supreme Court Chooses Religious Freedom Over Government Discretion

by Jeffrey Scott Shapiro

This week the United States Supreme Court made a landmark unanimous decision that protected the Free Exercise Clause of the First Amendment. The decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, rejected an argument made by the Obama Justice Department, which sought to eliminate the “ministerial exception” in employment discrimination law.

The ministerial exception allows religious organizations to terminate employees who perform religious responsibilities. The Hosanna-Tabor decision reinforces the First Amendment principle that religious organizations can continue to choose their own leaders.

The majority opinion, authored by Chief Justice Roberts stated that although protecting employee rights against discrimination are important, the First Amendment dictates that the right to exercise ones religion freely is more important.

“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Roberts opined.

“But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” When those principles are in conflict, the First Amendment has struck the balance for us.”

The case involved Cheryl Perich, a Redford, Michigan teacher at the Hosanna-Tabor Evangelical Lutheran Church and School who was fired in 2005 after she was diagnosed with narcolepsy, which would typically be considered a violation of the American Disabilities Act.

Perich was hired as what is known in religious schools as a “lay teacher” in 1999, but was trained by her new employer to become what’s known as a “called” teacher. Called teachers instruct their “according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.”

In 2004, Perich had serious medical problems, but she tried to come back to work in 2005. By then, the school had hired another teacher by then however, and said there was no open position for her. When she informed her employers she was prepared to litigate the case to get her position back, she was terminated for “insubordination and disruptive behavior.”

School and Church leaders said her threat violated a doctrine of the Lutheran Church-Missouri Synod that dictates disputes are resolved within the church, not court.

The Washington Post quoted Richard W. Garnett, director of Notre Dame Law School’s Program in Church, State, and Society, who said, the ruling was monumental one for religious freedom.

“The government doesn’t get to second-guess religious communities’ decisions about who should be their teachers, leaders and ministers,” he told the Post.

Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, however disagreed saying that, “Blatant discrimination is a social evil we have worked hard to eradicate in the United States.”

In many cases, the US Supreme Court has provided a balancing test to offer criteria to decide how the Court should review substantially similar cases in the future in areas such as Free Speech, the Establishment Clause and Equal Protection.

In 2008, in District of Columbia v. Heller, which struck down the Washington, D.C. gun ban, the Court hinted the appropriate test was the “Rational Basis Review” test when reviewing firearms laws in that it said the government could impose “reasonable regulations” when passing firearms laws. In this case, the justices declined to provide a test for determining who is protected by the “ministerial exception.”

The absence of a balancing test in this case leaves the door open for other challengers in the future since it is unclear who is actually protected by the privilege – a clear message from the Court that they do not feel the exception should be narrowly defined.


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Posted Jan 13th 2012 at 9:29 am in News, Supreme Court | 76 Comments