Whose rights? Supreme Court tackles key church-state case -- Oct. 6, 2011 column

By MARSHA MERCER

Does teaching kids reading, writing, arithmetic and some religion – even leading them in prayer -- in a religious school make a teacher a minister?

And, if so, does that prohibit her from suing under workplace discrimination laws if fired?

Not at all, says the Obama administration, which has landed squarely in the middle of a war between religious liberties and civil rights.

Yes, absolutely, say many religious groups, arguing that religious institutions should be exempt from laws that prohibit bias in hiring and firing decisions.

And so, on Wednesday, frustrated Supreme Court justices grappled with an odd question.

“What is the legal definition of a minister?” asked Justice Antonin Scalia, a query echoed by others on the bench.

University of Virginia law professor Douglas Laycock contended that anyone who teaches a religion class is a minister.

“We think if you teach the doctrines of the faith…you’re a minister,” said Laycock, representing Hosanna-Tabor Evangelical Lutheran Church and School in Michigan in the case of teacher Cheryl Perich who complained to the Equal Employment Opportunity Commission that she was wrongly fired.

At the heart of the case is the “ministerial exception,” a legal doctrine that lacks sex appeal but is extremely important. Four decades ago, federal appeals courts accepted the idea that the First Amendment protects the right of religious organizations to make their own decisions about hiring and firing of clergy. Anti-discrimination laws that cover other employers don’t apply.

A woman who wants to become a Catholic priest can’t sue for gender discrimination, for example, because the church has the right to say who can and can’t be priests.

But just how far does the exemption go? Federal courts have ruled differently, and the Supreme Court may settle the matter. The ruling could affect millions of employees of religious groups across the country working in schools, colleges, hospitals and social service agencies.

Some federal civil rights laws do contain certain exemptions for religious organizations, but religious groups argue they should be exempt from all anti-discrimination laws as every employee is carrying on the ministry.

In 2004, Perich, who taught fourth grade, got sick and took medical leave. In time, her illness was diagnosed as narcolepsy, a sleep disorder, and she received medication to control the condition.

But when her doctor certified that she could return to the classroom after she’d been gone six months, the school refused to rehire her. Another teacher had been hired, and Perich was told to resign.

Perich refused and said she’d file a discrimination claim with the EEOC. She was fired, she says, in retaliation for threatening to file the complaint. School officials said she was a “called” teacher and under church teachings could not take her grievance outside the church.

Perich taught mainly secular subjects – math, reading, communication skills – and a religion class four days a week. Sometimes she led the class in prayer. Other teachers who were not Lutherans did roughly the same work.

The EEOC took Perich’s claim that that she’d been discriminated against under the Americans with Disabilities Act to federal court. The 6th U.S. Circuit Court of Appeals sided with Perich.

“The case is remarkable,” Vanderbilt University law professor Brian T. Fitzpatrick said in an interview, because the court could rule that religious institutions are shielded from all anti-discrimination laws.

The justices wrestled with whether the courts can interfere with religious organizations’ decisions without meddling in church tenets.

Arguing for the government and the EEOC, former Solicitor General Walter Dellinger said, “This is a circumstance in which an organization is going into the public arena providing a public service, and in that situation, it ought to be governed by the same rules.”

The government has an interest in making sure citizens have access to the courts, he said.

Afterward, Cheryl Perich told reporters, “My situation really had nothing to do with religion.”

“I can’t fathom how the Constitution would be interpreted in such a way as to deny me my civil rights as an elementary school teacher, “ she said, according to a Religion News Service report. “I sure hope the court agrees.”

So do I.
(c) 2011 Marsha Mercer. All rights reserved.