Ministerial Exception and Minority Religions

Jason Pitzl-Waters —  October 4, 2011 — 32 Comments

On Wednesday the Supreme Court of the United States will hear a case that could have serious ramifications on what’s known as “ministerial exception” at institutions run by religious organizations. Hosanna-Tabor Church v. Equal Employment Opportunity Commission centers on a teacher at a Lutheran school who was fired due to a sleep disorder. The church is claiming that the teacher’s position falls under ministerial exception, and is therefore exempt from any discrimination proceedings, while the Equal Employment Opportunity Commission, backed by the Justice Department, feels that her role at the school was largely secular in nature, and shouldn’t fall under the exceptions usually given to clergy within religious groups.

Cardinal Donald Wuerl and Chief Justice John Roberts

Cardinal Donald Wuerl and Chief Justice John Roberts

“The core question before the Justices, in responding to the broad argument for an exception, is how to define the scope of duties of parochial school teachers like Cheryl Perich.   If the decision is that Ms. Perich was a minister, anti-bias laws cannot shield her in the workplace; if she was not, she is then like any other worker, protected against discrimination on the job.   In her case, the claim is that she was discriminated against because of her physical health problems and her insistence on her legal rights — in short, she was allegedly the victim of retaliation, in violation of the federal Americans with Disabilities Act.”

While all the expected big players in American religion, the United States Conference of Catholic Bishops, the National Council of Churches, and the National Association of Evangelicals, are backing the church, and a broad interpretation of ministerial exception, so too are a number of minority religions in the United States.

“Defending the school is a coalition of small and sometimes-obscure religious groups. They include the Muslim-American Public Affairs Council, United Sikhs, Church of the Lukumi Babalu Aye, International Society for Krishna Consciousness, O Centro Beneficente Uniao Do Vegetal and Templo Yoruba Omo Orisha.”

In their amicus brief, this coalition of minority religions say they are particularly susceptible to judicial encroachment, and that their faiths often categorize what might be seen as “secular” work within a sacred context.

“…many seemingly secular activities take on deep religious significance within specific faith traditions. For Sikhs, for example, operating a community kitchen and providing meals (langar) to the needy and vulnerable is an indispensible element of religious worship. For some temple-centric religions, the actual process of constructing a temple carries deep religious significance. Hindu temple architects and artisans follow ancient religious traditions in their work. For others, temple overseers may be tasked specifically to ensure that construction workers follow religion-based standards and refrain from profane acts that might desecrate the temple. For other religious organizations, meditation is a form of worship, distributing aid through prescribed means is an essential sacred ritual, and counseling and healing are acts inspired by deity. But because such religious functions – at least from the external view – may be indistinguishable from the same activities carried out for secular purposes, courts trying to parse the sacred from the profane jeopardize the ability of religious organizations to define and carry out their own sacred missions.”

Interestingly, the Unitarian Universalist Association, filing along with the ACLU and American United, takes a very different view of this case. In their opinion, a generous interpretation of the exception shields groups engaging in abusive or exploitative actions.

“The ministerial exception is designed to allow religious bodies to practice their religion and convey their message without government interference. But the exception thwarts society’s interest in ending discrimination—without serving the exception’s purpose—when applied to shield a religious entity from liability for discrimination or retaliation that is unrelated to religious ideology. As a result, in applying the ministerial exception, courts can and should use their considerable experience in determining whether sincere religious views animated a litigant’s conduct. And the Constitution provides no bar to this enterprise.”

It all comes down to viewpoint. For minority groups like Church of the Lukumi Babalu Aye or O Centro Beneficente Uniao Do Vegetal, who have both gone to the Supreme Court to protect their beliefs and practices, the less power the government has to pass judgment on their practices, the better. For the UUA, and the civil liberties groups who often represent minority faiths in court, it’s about accountability and justice.

“The American Civil Liberties Union and a coalition of religious-liberty groups filed a friend-of-the-court brief in the case, considered by many to be one of the most important religious liberty cases in years.  The brief argues that although churches certainly have a constitutional right to religious autonomy, that right is not absolute, and religious organizations do not have the right to discriminate based on non-religious grounds. Religious institutions should be given some leeway in hiring practices in order to express and practice their faith. For example, a Catholic church need not hire a female priest and an Orthodox Jewish congregation need not hire a female rabbi if doing so would violate their religious tenets. However, this ministerial exception should not apply to discriminatory decisions that have nothing to do with religious doctrine.”

So how will SCOTUS rule? Well, a good preview might be Sylvia Spencer v. World Vision Inc in which the 9th Circuit Court ruled that the religious non-profit organization could hire and fire workers based on religion. That decision was just denied certiorari, meaning they’re allowing the ruling to stand. Is it a harbinger? Will the six Catholic justices find themselves moved by their own church’s position on this case? SCOTUS will have to decide how far the First Amendment reaches, or as law professor Richard W. Garnett put it: “Does a government like ours, limited by a provision like our First Amendment, have the authority to second-guess a religious community’s decision — even a decision that seems wrongheaded or objectionable — about who should be its religious teacher, leader, or minister?” What do you think?

Jason Pitzl-Waters

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