Theology up for debate at SCOTUS?

Replies to This Discussion

Permalink Reply by Carl Vehse on October 27, 2011 at 8:52pm

"But when some board members expressed concern that she wasn’t medically ready for work, she threatened to sue for discrimination."

Using similar logic, when someone won big money at Las Vegas, no Martians visited Disneyland.

The U.S. District Court Opinion and Order clear explains under the section, Factual and Procedural Background, that in response to school board pressure for her to resign, which she repeatedly refused to do, Perich presented her physician's work release note that she was able to return to full duties on February 22. Perich also had her doctor reaffirm that she was healthy and ready to work.

Later that day Principal Hoeft indicated to Perich she would likely be fired, even though Perich was a called commissioned teacher and could not be "fired" like a contract teacher. It was to that wrongful threat that Perich indicated that she would assert her legal rights against discrimination. It was only after she was deposed from her call at Hosanna-Tabor by the congregation specifically because of her statement on February 22, that Perich filed a complaint with the EEOC.

 

Permalink Reply by Carl Vehse on October 28, 2011 at 6:48am

Under 42 U.S.Code, Chap. 126, Subchapter I (Employment) § 12113(d), a religious organization may require that all applicants and employees conform to the religious tenets of such organization. The Sixth U.S Court of Appeals decision (p. 9-10) referred to this section as the "ministerial exception.

If a religious institution were to have, for example, a doctrinal tenet that prohibited a called teacher with narcolepsy, even if a physician certifies following treatment that she is fit for work, the religious institution could depose the teacher from her called position under the "ministerial exception." But the Missouri Synod does not claim to have a doctrinal tenet that forbids teachers with narcolepsy. Thus a Missouri Synod school would be in violation of the ADA if it arbitrarily discriminated against a teacher specifically because of her narcolepsy.

However, under a different subchapter, 42 U.S. Code, Chap. 126, Subchapter IV § 12203(a):

"Retaliation No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter."

This indicates that if a called teacher feels there was retaliation by her employee related to an ADA-protected illness, not prohibited by her religious organization's tenets and therefore not covered by the "ministerial exception", the religious organization may not discriminate against such a teacher for indicating she would assert her legal rights against discrimination because of that illness.

For the SCOTUS to decide to apply the "ministerial exception" of subchapter I to the retaliation provisions of subchapter IV would, in essence, grant a religious organization the ability to ignore conformity to its own tenets. Anarchy, at least for the ADA, would then be a recognized and protected religion.

Permalink Reply by Carl Vehse on October 28, 2011 at 9:47am

Before the U.S. Supreme Court, the Brief for the Petitioner (Hosanna-Tabor) states (p. 2):

"[Cheryl Perich] violated church teaching, was found unfit for ministry by a vote of the Church congregation, and was removed from ecclesiastical office."

But then the Brief immediately states:

"Instead of challenging that ruling within the church, she filed a claim in civil court seeking reinstatement as a commissioned minister and “called” teacher."

In fact, Perich did enter into a civil court lawsuit, but it was three years after she was deposed by Hosanna-Tabor for violating church teaching! And Perich did not file a discrimination complaint with the EEOC until May 17, 2005, over 5 weeks later.

So what church teaching did Perich violate back in February, 2005, for which she eventually was deposed?!?

Permalink Reply by James Robertson on October 28, 2011 at 10:13am

1 Cor 6:1

Permalink Reply by Carl Vehse on October 28, 2011 at 10:43am

"So what church teaching did Perich violate back in February, 2005, for which she eventually was deposed?!?"

1 Cor. 6:1

When did Perich violate 1 Cor. 6:1 and "go to the law before the unrighteous instead of the saints" back in February?

Permalink Reply by Robert C. Baker on November 2, 2011 at 4:28pm

Carl,

Unfortunately, you'll get nowhere with this because the institutional wagons have already circled. In my opinion, all called workers, who have federally-recognized disabilities, should take note of how Ms. Perich was treated in this case. They could be next.

Robert

Permalink Reply by Carl Vehse on November 2, 2011 at 6:38pm

Circled wagons?!? It's like a mall parking lot the day after Thanksgiving.

Supporting the Missouri Synod there are the Romanists, the Baptists, the Methodists, the Jews, the Mormons, the Mohammedans. If the Agnostics could make up their minds they would have filed an amicus curiae brief as well.

Permalink Reply by Deborah Lorentz on November 26, 2011 at 8:30am

Robert C. Baker said:

Carl,

Unfortunately, you'll get nowhere with this because the institutional wagons have already circled. In my opinion, all called workers, who have federally-recognized disabilities, should take note of how Ms. Perich was treated in this case. They could be next.

Robert

Permalink Reply by Deborah Lorentz on November 26, 2011 at 8:43am

This already has happened to other called teachers.  I have a college roomate who lost her job so the school could replace her with a called teacher with less years of  teaching experience.  A very dear friend of mine lost his teaching job after 33 years as a commissioned teacher so the school could "save money on their budget."  I was cut from my call this past spring "due to my 27 years of teaching experience and pay scale."

 

I don't think that the LCMS realizes the ramifications of all of these cuts throughout U.S.  The called teachers will not encourage their children, nieces, nephews, to become a church worker after enduring the devastating loss of their calling.  The Concordia Colleges will start noticing a diminished enrollment.  There will be less called teachers out there for the schools to call and our Lutheran Schools will gradually become just another private school with lay teachers on the staff.

Permalink Reply by James Robertson on January 11, 2012 at 8:36am

Like so much from this Justice Department, Holder’s radical legal positions are at odds with long American traditions. This latest species of Holder’s radicalism is a frontal attack on faith communities.

In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. The U.S. Equal Employment Opportunity Commission, Holder’s DOJ argued that a church cannot fire an employee for acting contrary to church teaching, and contrary to an employment contract that incorporates that teaching. A teacher filed a complaint to the government about how the school handled her narcolepsy, which presumably would involve sleeping at work. The church school then fired the teacher because the church forbids lawsuits among believers based on 1 Corinthians 6:1-8. (“But instead, one brother takes another to court—and this in front of unbelievers!”)

This particular Lutheran church had well established dispute resolution mechanisms within the church, and based on church teaching. Instead, the teacher went to the government, contrary to church teaching.

Holder’s Justice Department believes that religious schools should not be able to enjoy a longstanding exemption to various employment laws which conflict with church teaching, or, the “ministerial exception.”

Assistant to the Solicitor General Leondra R. Kruger argued that the religious school could not fire the teacher for filing a complaint to the government even if church teaching forbids it. At oral argument, Kruger advocated positions so extreme that even Justice Elena Kagan appeared to reject them.

It’s not hard to see where this slippery slope slides. What if a teacher in a Catholic school does something directly contrary to Catholic teaching? Or, consider this possibility offered by American Catholic:

“Then, too, what also about Catholic women using this principle to sue the Catholic Church in the United States because they are excluded from the priesthood? There’s absolutely no doubt that when it comes to ordination, the Catholic Church discriminates in favor of males. Should SCOTUS be able to tell the Catholic Church in the United States that it must redress the imbalance?

Yes…if, as an organization, the Catholic Church is bound by federal employment discrimination statutes.

No…if, as an organization, the U.S. Catholic Church is exempt from federal employment discrimination statutes.”

Far fetched? Not to Kruger.

At oral argument, she wouldn’t categorically preclude the possibility. Instead, she told the Court that the government interest isn’t currently sufficient to justify an assault on the male priesthood. Kruger said “the government does have a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.” In other words, even if church doctrine prohibits you from settling disputes with the church through the government, the Obama administration cares not. Holder wants informants, or as the DOJ prefers to call them, complainants.

via Rule of Law » Holder’s Quiet Court Attack on Religious Freedom.

Permalink Reply by James Robertson on January 11, 2012 at 12:49pm

Supreme Court sides with church on decision to fire employee on religious grounds

Published January 11, 2012 | FoxNews.com

The Supreme Court has sided unanimously with a church sued for firing an employee on religious grounds, issuing an opinion on Wednesday that religious employers can keep the government out of hiring and firing decisions.

In the case of Hosanna-Tabor v. EEOC, Cheryl Perich, a "called" teacher, argued that the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., had discriminated against her under the Americans With Disabilities Act by refusing to reinstate her to her job after she took leave for narcolepsy.

But the high court found that Perich's was properly classified as a "minister," meaning she falls within the "ministerial exemption" from many employment laws.

"Because Perich was a minister within the meaning of the exception, the First Amendment requires dismissal of this employment discrimination suit against her religious employer," reads the ruling written by Chief Justice John Roberts. "The EEOC and Perich originally sought an order reinstating Perich to her former position as a called teacher. By requiring the Church to accept a minister it did not want, such an order would have plainly violated the Church's freedom under the Religion Clauses to select its own ministers. ...

"The exception ... ensures that the authority to select and control who will minister to the faithful is the church's alone," the ruling reads.

Roberts added that this particular case is based on the ministerial exception's use in dismissing the discrimination claim but does not bar other types of suits alleging breach of contract or "tortious conduct" by religious employers. The applicability of the exception to other circumstances would be dealt with separately "if and when they arise," he wrote.

The high court's decision overturned an earlier decision by the 6th U.S. Circuit Court of Appeals.

Permalink Reply by James Robertson on January 12, 2012 at 7:14am

What Comes After Hosanna-Tabor
Jan 12, 2012 - FirstThings
Matthew J. Franck

Yesterday’s unanimous Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, upholding a small Lutheran school’s right to control its employment of “commissioned ministers” on its teaching staff, is very good news indeed for religious freedom. Congratulations are due to the Becket Fund for Religious Liberty, to Professor Douglas Laycock of the University of Virginia (who teamed up with Becket in representing the school), and to writers of supportive amicus briefs.

The first thing to note is that Chief Justice Roberts and the other justices who wrote opinions were kinder to the Obama administration than it deserved. The administration came out entirely against the concept of the “ministerial exception” to anti-discrimination statutes, a legal principle that has been commonplace in the courts of appeals for nearly four decades. The Obama Department of Justice, representing the EEOC, took the position that some protection might be afforded to religious organizations on “freedom of association” grounds, which are only implicit in the First Amendment, but rejected any recourse to what the text of the amendment says about religious freedom. This, the chief justice mildly said, was “untenable.”

One question now is whether Hosanna-Tabor can be squared with the 1990 Employment Division v. Smith decision, in which the Court held that the First Amendment does not mandate that religious exceptions be made to generally applicable laws. The chief justice said that the Americans With Disabilities Act, at issue here, “like Oregon’s prohibition on peyote use [at issue in Smith], is a valid and neutral law of general applicability.” He went on:

But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself. . . . The contention that Smith forecloses recognition of a ministerial exception rooted in the Religion Clauses has no merit.

What Roberts suggests here is an important qualification of Smith. Quoting a nineteenth century ruling, Justice Scalia (who silently joined yesterday’s ruling) said in Smith that a blanket rule that religious claims nearly always trigger exemptions to generally applicable laws would “in effect permit every citizen to become a law unto himself.” Yesterday, in Hosanna-Tabor, Chief Justice Roberts said, in effect, that when it comes to the right to govern themselves in the choice of their clergy, ministers, leaders, and others whose functions and duties are distinctly religious, churches and other religious organizations are indeed a law unto themselves. This is an important recognition of the communal nature of religious life, but it does leave Smith largely intact in the context that gave rise to it two decades ago.

There may be a straw in the wind in yesterday’s ruling, with respect to the Obama administration’s determination to compel the coverage of contraceptive and abortifacient drugs in health insurance policies, even ones for religious institutions. The only “religious exception” offered so far by the Department of Health and Human Services to its contraceptive coverage mandate is an exemption so narrow, for religious organizations that employ and serve only their own co-religionists, that even the ministry of Jesus would not qualify. It is as though the Obama administration is staffed by people who have never encountered the ministry to the world that is so common among religious folk—especially but not uniquely among Christians.

A similar mistake was made by the Sixth Circuit, whose decision against the school was reversed by the Supreme Court. Cheryl Perich, whose complaint against the school under the ADA gave rise to the case, was a “called teacher” who was considered by the school, and considered herself, to be a “commissioned minister” of the Lutheran church. But as a teacher of secular subjects, she spent only a minority of her time at Hosanna-Tabor in overtly religious activities. This caused the Sixth Circuit to conclude that she was not really a “minister” for purposes of the ministerial exception. Roberts set the record straight:

It is true that her religious duties consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects. The EEOC regards that as conclusive, contending that any ministerial exception “should be limited to those employees who perform exclusively religious function.” . . . We cannot accept that view. Indeed, we are unsure whether any such employees exist. The heads of congregations themselves often have a mix of duties, including secular ones, such as helping to manage the congregation’s finances, supervising purely secular personnel, and overseeing the upkeep of facilities.

Likewise, a Catholic hospital, or a Christian college, or church, synagogue, or mosque running a soup kitchen is chiefly engaged in activities that might be called “secular”: healing, teaching, feeding the poor. But they do these things in response to a calling to serve the world, a calling that flows out of a wellspring of faith. They must not be asked, in order to pursue that calling, to betray their faith by acceding to insurance rules they regard as immoral.

Justice Alito, in a concurring opinion joined by Justice Kagan, wrote that “we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Courts, he wrote, must avoid inquiring into whether religious reasons given for internal governance decisions are merely “pretexts” for evading legal obligations. “In order to probe the real reason . . . a civil court—and perhaps a jury—would be required to make a judgment about church doctrine.” Just imagine a “civil factfinder sitting in ultimate judgment of what the accused church really believes, and how important that belief is to the church’s overall mission.”

This is just what the Obama HHS is trying to do with its insurance mandate—make a political judgment that the beliefs of Catholics and others regarding contraception and abortion are not really important to the “overall mission” of religious hospitals, schools, and soup kitchens—as the government understands that mission. This struggle looks more like Hosanna-Tabor than like Smith. The Obama administration deserves to be rebuked for the hostility to religious liberty in its proposed HHS rules, for the same reasons its EEOC lost yesterday.

Matthew J. Franck is Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.