Did Supreme Court Decision Open Door to Less Protection for Faith-Based Employees?

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January 11, 2012; Source: Christianity Today | One of the most significant court decisions in recent years affecting nonprofits occurred earlier this month at the U.S. Supreme Court. The issue was the ministerial exception and the Court’s decision was a huge victory for organized religion.

The case didn’t involve a pastor or church leader, but a teacher in a religious school. In 2004, Cheryl Perich, a teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., was diagnosed with a form of narcolepsy and went on leave for a period of time.  When she tried to return to her job, the church suggested that Perich accept a “peaceful release” from her job, but Perich refused to resign and threatened to sue when the school said it would fire her. Calling her threat “insubordination and disruptive behavior,” the Hosanna-Tabor then fired her in 2005.

As the Christianity Today article (written by former Solicitor General Ted Olsen) makes clear, Hosanna-Tabor’s actions would not have passed legal muster if it were a secular employer. The church wouldn’t have been permitted to make an employment decision based on the employee’s disability and couldn’t have retaliated against an employee threatening to sue. But what about a church? Though Perich was a commissioned minister in the Lutheran Church-Missouri Synod, her lawyers and the EEOC both argued that she was functioning as a teacher, not a minister, and could not be summarily fired. The church argued that although Perich had lay functions, many ministers have lay or secular functions or job assignments, and that the church should still be allowed to treat Perich as a minister. 

The Supreme Court unanimously ruled that Hosanna-Tabor’s firing of Perich was covered by the ministerial exception and that Perich was the equivalent of a minister even though she functioned like a lay teacher. The Supreme Court concluded that the Free Exercise and Establishment clauses of the First Amendment prohibit “the government from interfering with the decision of a religious group to fire one of its ministers,” as Chief Justice John Roberts wrote in the court opinion. 

Although the court limited its decision to whether Perich fit under the ministerial exception, the language of the opinion opened the door to a broader interpretation of who qualifies as a minister in a church-run program. Roberts questioned whether ministers who had exclusively religious (and no secular) functions even existed and challenged the notion that somehow the definition of “minister” could be determined by how much time one spent on secular versus religious functions. 

Olsen suggests that the ruling might have application beyond churches. He quotes Stanley Carlson-Thies, president of the Institutional Religious Freedom Alliance: “‘While the decision is about ‘ministerial’ employees, the religious institution involved was a [sic] elementary school, not a church or seminary.’ If the government can’t tell a church or religious group to accept or reject a minister, he asks, ‘How then it can be constitutional for a public university to tell religious student groups what criteria they can and cannot use in selecting their leaders? Does this decision have a penumbra that strengthens the freedom of religious organizations more broadly? That remains to be seen—yet the language and the unanimity of the decision are encouraging.’”

Faith-based nonprofits will likely be more than attentive to how this broad conception of the ministerial exception is interpreted by other courts and by the federal government.—Rick Cohen

  • Matt

    “The Supreme Court unanimously ruled that Hosanna-Tabor

  • rick cohen

    Matt: Great to have you reading and commenting. Yes, we know that the court was specific about Perich’s fit with the definition of minister. Nonetheless, the language used by Chief Justice Roberts does, it seems, open the door for a broader definition of “minister”, including those who might not be claiming the minister’s housing allowance. Thank you for commenting–and thanks to Christianity Today for providing such interesting news coverage that we’re able to link up with NPQ readers.