Court sets clash between religious liberty and workplace fairness -- Jan. 12, 2012 column

By MARSHA MERCER

If only angels ran churches, the Supreme Court’s landmark ruling that ministers may not sue for job discrimination would be less troubling.

Unfortunately, ordinary mortals are in charge of religious institutions, and, mortals sometimes need a nudge to do the right thing. That’s why we have federal, state and local laws prohibiting employment discrimination.

But in the most significant church-state ruling in years, the court on Wednesday said all government – and that includes the courts – must stay out of religious groups’ decisions to hire and fire ministers and other leaders. The court also left the decision of who qualifies as a minister to the religious groups themselves.

Religious organizations and their allies claimed a great victory for religious liberty.

“If ministers were allowed to sue for employment discrimination, judges and juries would wind up deciding who is a good minister, worthy of retention, and who is not,” University of Virginia law professor Douglas Laycock wrote on CNN’s Belief Blog. “These cases end with a jury deciding whether the employer had a good enough reason to justify its decision.”

Laycock represented Hosanna-Tabor Evangelical Lutheran School in Michigan in the Supreme Court case. Cheryl Perich, a teacher, complained to the Equal Employment Opportunity Commission that she was wrongly fired.

Ms. Perich was hired as a lay or contract teacher and became a spiritually “called” teacher. She took a series of religious courses and was commissioned as a “Minister of Religion.” She mostly taught secular classes and spent about 45 minutes a day in religious duties, such as leading her pupils in prayer.

She became sick with what eventually was diagnosed as narcolepsy and took disability leave. When she was ready to return, the school told her she no longer had a position. She threatened to sue, which went against Lutheran principles to resolve disputes internally, and was fired. She went to the EEOC, alleging she had been discriminated against under the Americans with Disabilities Act.

The EEOC brought suit against the school, alleging that Perich had been fired in retaliation for threatening to sue.

The Supreme Court unanimously affirmed the “ministerial exception,” a legal doctrine long ago accepted by federal appeals courts that says the First Amendment protects the right of religious organizations to make decisions to hire and fire clergy and grants them an exception to laws that prohibit job discrimination.

For example, the Catholic Church has the right to decide who can and can’t be a priest, and a woman who wants to be a priest can’t sue for gender discrimination.

The Hosanna-Tabor decision went farther, saying the exception applies to employment discrimination laws on all levels.

Thus the court has put the country to a test of values. Employment discrimination laws that protect other workers will not apply to employees in religious schools, colleges, hospitals and social service agencies – if employers deem the workers to be ministers, priests, rabbis, imams or other leaders. What now?

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, and other civil rights advocates worry that the ruling will make fighting discrimination in the workplace that much harder.

“Blatant discrimination is a social evil we have worked hard to eradicate in the United States,” Lynn said.

Even some who support the ministerial exception, like University of Alabama law professor Paul Horwitz, say religious groups should use their power carefully and be sensitive in their behavior toward ministers.

There are good reasons “to avoid thinking of the state as the font of all power and the solution to all problems, but taking that step requires us to think much more carefully about institutional responsibility,” Horwitz wrote in a September draft of an article for Northwestern University Law Review Colloquy.

Virginia’s Laycock concedes that some churches will use power wisely and some won’t, but overall he says religious freedom demands that churches make the choices.

The Supreme Court has affirmed the autonomy of churches and other religious groups. It’s up to the mortals in charge to call on their better angels for guidance in the workplace.

© 2012 Marsha Mercer. All rights reserved.
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