Does a court violate the First Amendment when it considers issues pertaining to teacher employment in a religious organization where the teacher serves both secular and religious functions?
Respondent Cheryl Perich taught for five years at Petitioner, Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”), including four years as a commissioned minister. In 2004, Hosanna-Tabor hired a new teacher to fill Perich’s position after Perich missed several months of teaching due to narcolepsy. When Hosanna-Tabor did not permit Perich to return to her former position, Perich threatened to sue under the Americans with Disabilities Act (“ADA”). Hosanna-Tabor fired Perich, and Perich initiated legal proceedings with the Respondent Equal Employment Opportunity Commission (“EEOC”), alleging that Hosanna-Tabor fired her in retaliation for threatening to sue. Hosanna-Tabor argues that the ministerial exception to the ADA, which prevents employment suits against religious entities by their religious employees, bars Perich's lawsuit because she fulfilled an important religious role. Perich and the EEOC contend that there is no ministerial exception under the anti-retaliation provisions of the ADA, and that the Establishment Clause, freedom of association principles, and Free Exercise Clause do not bar her suit. The United States Court of Appeals for the Sixth Circuit determined that Perich did not fall under the ministerial exception because she taught secular subjects with minimal religious components. The Supreme Court will decide whether the ministerial exception applies to a teacher at a religious school who teaches both secular and religious material.
Questions as Framed for the Court by the Parties
Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.
Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”) is a religious school in Redford, Michigan that teaches kindergarten through eighth grade. Hosanna-Tabor employs two types of teachers: “lay” teachers and “called” teachers. Called teachers are commissioned ministers selected by the congregation after completing “colloquy” classes focusing on the tenets of the Christian faith. Cheryl Perich (“Perich”) joined the Hosanna-Tabor faculty in July 1999 as a lay teacher and was “called” in March 2000. Perich taught a range of secular subjects, including math, language arts, and music. After her call, Perich kept the same duties she had as a lay teacher. Beyond her secular teachings, Perich also taught religion classes four days a week, attended chapel services with her students, and led her class in prayer three times a day.
In the summer of 2004, Perich fell ill, and the school encouraged her to go on a leave of absence for the 2004–2005 school year. In December 2004, Perich was diagnosed with narcolepsy. She told Hosanna-Tabor that she would return to teach in two to three months, after she was stabilized on medication. In January 2005, Hosanna-Tabor’s principal, Stacy Hoeft (“Hoeft”), informed Perich that she had hired a substitute teacher in Perich’s absence; Perich quickly told Hoeft that she would return to work within a month. Hoeft feared that Perich’s health would place the students at risk, and the congregation of Hosanna-Tabor voted for a “peaceful release agreement,” asking Perich to resign her call. Perich met with the school board and presented a doctor’s work release note, but the board continued to request that Perich resign.
Perich continued to refuse the request to resign; she appeared at the school on February 22 to resume her job. The school had no job opening for Perich, but Perich would not leave school grounds until she received a letter acknowledging that she had come to work in order to prevent voluntary termination under Hosanna-Tabor policy. On March 19, the Board of Education sent Perich a letter stating its intent to rescind her call based on her disruptive behavior, if she would not accept a peaceful release.
Hosanna-Tabor terminated Perich’s employment on April 10, 2005. On May 17, 2005, Perich filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”). The EEOC filed suit against Hosanna-Tabor on September 28, 2007. Perich moved to intervene, raising the federal retaliation claim together with an added state retaliation claim.
Perich and Hosanna-Tabor each filed motions for summary judgment on July 15, 2008; the U.S. District Court for the Eastern District of Michigan granted summary judgment in favor of Hosanna-Tabor, finding that Perich’s claim fell under the “ministerial exception” to the ADA. The U.S Court of Appeals for the Sixth Circuit overturned the district court’s ruling, finding that Perich did not fall under the ministerial exception. Hosanna-Tabor appealed to the Supreme Court, which granted certiorari on March 28, 2011 to consider whether the ministerial exception applies to a teacher who teaches a secular curriculum as a commissioned minister.
The ministerial exception to the ADA is intended to maintain First Amendment separation between church and state, and to enable courts to refrain from exploring religious doctrine. Petitioner Hosanna-Tabor argues that Perich’s suit should be barred under the ministerial exception because she was a commissioned minister of the Lutheran church, and because any finding for Perich would involve courts in making religious decisions for a church. Respondents EEOC and Perich maintain that this is a simple case of discrimination, and that failing to rule in Perich’s favor would enable churches to discriminate and retaliate against employees who seek to assert their civil rights.
Michigan and supporting states argue that a victory for Perich will lead courts to become too involved in religious questions. Michigan points out that, because Perich’s work was “intimately intertwined with religious doctrine,” the court could not resolve the controversy without exploring religious doctrine; for this reason, the court should refrain from deciding the case. Additionally, Hosanna-Tabor fears that a ruling for the Respondents would imply that courts have the ability to override decisions of churches, and to interfere with the freedom of churches to select their own clergy. Hosanna-Tabor argues that this would enable courts to dictate to churches who should teach their religious messages.
The EEOC claims that, at its heart, this is a civil rights case, not one involving religious issues, and that there is no reason to fear excessive infringement on the separation of church and state. The NAACP Legal Defense Fund and other groups (“NAACP”) suggest that a blanket application of a ministerial exception to teachers in this case could prohibit the application of many civil rights statutes beyond the ADA. The NAACP asserts that a conflict with a church’s religious doctrine should not enable a religious employer to “opt out” of the secular legal system.
Hosanna-Tabor asserts that, in addition to bringing courts into church matters, limiting the ministerial exception would force the Lutheran Church to violate its religious conflict resolution process, and to resolve more disputes in court. The Lutheran Church–Missouri Synod (“Missouri Synod”) notes that the Lutheran Church encourages potential litigants to resolve their claims within the Church (out of court), and argues that a Supreme Court ruling in Perich’s favor would open the doors to a blending of church and state, with an increased number of church controversies in American courts. See The Missouri Synod believes this blend would be a problem because it claims the courts do not understand the Synod’s religious views on the treatment of disputes, and would make decisions on Church issues that are out of line with Lutheran values.
Perich states that extending a ministerial exception to teachers would give a religious employer “constitutional entitlement to become a law unto itself,” disregarding the employment laws that apply to all other employers. The Americans United for Separation of Church and State (“Americans United ”) and the American Civil Liberties Union (“ACLU”) agree that a ministerial exception allows religious organizations to convey religious messages without governmental interference, but worry that the application of the exception works against the protection of employees through antidiscrimination laws. Specifically, Americans United and the ACLU argue that courts have applied, and could continue to apply, the ministerial exception in cases where there is no proof of religious justification, potentially leading to discriminatory terminations with no theological basis.
At issue in this case is the “ministerial exception,” based on the First Amendment, which prevents most employment-law litigation between religious organizations and employees who perform religious functions. Petitioner Hosanna-Tabor argues that the ministerial exception should extend to Cheryl Perich because she served an important religious role. Respondents Perich and the EEOC argue that this lawsuit is not barred because the ADA's anti-retaliation provision does not contain a ministerial exception. Moreover, they argue that application of the ADA’s anti-retaliation provision in this case does not violate the First Amendment.
The Free Exercise Clause
Hosanna-Tabor contends that the Free Exercise Clause safeguards religious organizations’ right to choose who performs important religious functions. Hosanna-Tabor argues that the ministerial exception is crucial to the free exercise of religion, and that it applies to employees who perform important religious functions. In addition, Hosanna-Tabor maintains that the ministerial exception extends beyond bishops and pastors to professors, teachers, and music directors. Hosanna-Tabor argues that the ministerial exception applies to all who are appointed by a church to impart religious doctrines and values to others. Hosanna-Tabor claims that, because Perich taught religion to her students and led devotional exercises and prayer, she performed important religious functions central to the Church’s mission. Furthermore, Hosanna-Tabor reasons that Perich’s status as a call teacher (someone who fulfills a pastoral role) is proof of her pivotal religious role in the Church.
In response, Perich argues that this case doesn't involve religious issues; the question is whether she was wrongfully terminated from her teaching position after she stated her intention to sue for disability discrimination. Perich maintains that a court does not need to evaluate religious issues to resolve this question. Therefore, Perich asserts that applying the ADA to this case does not violate the Free Exercise Clause. Perich also contends that Congress has not enacted a religious exemption from ADA’s anti-retaliation statute; consequently, there is no ministerial exception to the ADA.
The EEOC supports Perich’s argument that this case concerns a secular issue, and asserts that the Free Exercise Clause affords no protection to religious organizations from general laws prohibiting disability discrimination and retaliation. . The EEOC states that, because the ADA statute is neutral and does not discriminate against religious employers, it does not offend the First Amendment.
In response to the EEOC and Perich, Hosanna-Tabor argues that the government should not resolve religious disputes nor determine religious doctrine. Hosanna-Tabor insists that the dispute pertains to Perich’s fitness for the ministry. Therefore, Hosanna-Tabor maintains that the case involves a dispute over religious authority, and that the ministerial exception is applicable. Moreover, Hosanna-Tabor argues that the ministerial exception applies to retaliation claims because the evaluation of those claims requires assessment of religious performance.
The Establishment Clause
Hosanna-Tabor argues that, because the Establishment Clause forbids governmental appointment of ministers and entanglement in religious questions, Perich’s suit is barred. Hosanna-Tabor further contends that, since the remedy for discrimination in Perich’s lawsuit is reinstatement or the monetary equivalent, threats are posed to the separation of church and state. Hosanna-Tabor also argues that Perich’s lawsuit forces the government to evaluate the decisions made by a church—namely, Perich’s fitness to serve the religious entity—thereby entangling the government in theological disputes. Moreover, Hosanna-Tabor claims that reinstatement would in effect allow the court to appoint Perich to perform religious functions. Hosanna-Tabor moreover contends that giving Perich the monetary equivalent of her former employment would force the courts to invalidate Hosanna-Tabor’s decisions. Accordingly, Hosanna-Tabor insists that this case threatens to enable the government to interfere with the internal affairs of churches, infringing on churches’ constitutional right to determine their religious affiliations, and violating the Establishment Clause.
In contrast, the EEOC insists that Perich’s claims are not barred by the Establishment Clause because they neither entangle the government in religious questions nor force the government to appoint religious persons. The EEOC argues that Perich is not seeking reinstatement, since the school that is operated by the Church is now closed. Furthermore, the EEOC argues that Perich’s lawsuit does not entangle the government in a theological dispute; the lawsuit does not require the court to decide on religious doctrine or assess the Church’s religious validity. The EEOC contends that the Court can accept the Church’s religious doctrine as true, while retaining the ability to evaluate Perich’s claims for retaliation regarding her disability discrimination claims.
Perich agrees with the EEOC, arguing that her case does not invariably lead to disputes regarding theological issues. Moreover, Perich points out that entanglement between church and state must be excessive before it becomes unconstitutional. Perich believes entanglement requires a greater degree of interaction between the government and a religious organization than is present in this case, and contends that applying antidiscrimination laws to employment cases is constitutional.
Right of Freedom of Association
Hosanna-Tabor contends that the right to freedom of religious association gives members of the public the right to associate with one another to further a religious goal. Hosanna-Tabor argues that this right encompasses the right to choose the members within the association, and therefore prevents the government from interfering with the selection of those who are chosen to serve a religious entity’s mission. Hosanna-Tabor claims that Perich’s case would, in effect, allow the Court to choose members of the Church, thereby violating the Church’s right to freedom of association.
Perich argues that the inquiry regarding the right of freedom of association is contingent upon whether application of the law would hinder the organization’s message in a significant way, and if so, whether the burden serves compelling state interests. Perich and the EEOC insist that, even if the right to freedom of association includes the right to operate schools, it does not free Hosanna-Tabor from general antidiscrimination laws. Moreover, Perich contends that the government has a compelling interest to protect its teachers from discrimination, and to protect teachers’ access to courts in order to enforce the interest. The EEOC also asserts that the Church has failed to show that including Perich in their religious entity would significantly impair their religious mission. Accordingly, Perich argues that the school’s expressive-association interests are insufficient to override the government’s interest in preventing employment discrimination.
The Supreme Court will decide whether a ministerial exception applies to a teacher at a religious school who teaches secular subjects. Petitioner Hosanna-Tabor contends that the ministerial exception to the ADA protects it from a lawsuit by one of its “called” teachers. Hosanna-Tabor argues that an unfavorable ruling will infringe on the separation of church and state, and that the government should not interfere with any church’s freedom to select their own clergy. Respondents Cheryl Perich and the EEOC assert that the case presents a civil rights issue, not a religious issue, and that any ministerial exception does not negate antidiscrimination laws designed to protect employees. This case will help define the scope of the ministerial exception, and will affect the ability of religious employees to sue their religious employers under the ADA.
USA Today, Richard W. Garnett: Hosanna-Tabor Case to Test Our Church-State Divide (Apr. 24, 2010)
Religion Clause, Howard Friedman: What is at Issue in the Hosanna-Tabor Case? (March 28, 2011)