Ministers of Justice

The Supreme Court asks which is more important: preventing discrimination or protecting religion?

Photograph by Buccina Studios/Thinkstock.

What do you get when you ask a secular court comprised of some very religious people to determine whether religious groups are liable for civil rights violations in secular courts? As we saw this morning, in one of the most important religion cases in years, you get a Möbius strip of church-state wrangling—the state enmeshed in a fight with the church over how to disentangle the state from the church. Want to see the Supreme Court take a difficult case and make it so much more difficult? Tune in.

In 1999, the Hosanna-Tabor Evangelical Lutheran Church School in Michigan hired Cheryl Perich as “contract teacher.” After completing some religious classes, she became a “called teacher”—meaning she could be dismissed only for cause. Perich taught mainly secular subjects, including math, science, and gym, although she did teach a religion class four days a week and led a chapel service twice a year. In 2004 she took a medical leave and was eventually diagnosed with, and treated for, narcolepsy. She was then cleared by her doctors to return to teaching. Following a few exchanges with the administration about whether she was fit to do so, Perich was threatened with termination. She then threatened to sue under the Americans with Disabilities Act, which prohibits job discrimination against a person with “a physical or mental impairment that substantially limits one or more major life activities.”

But the ADA contains the same “ministerial exception” as other civil rights laws, a 40-year-old doctrine that precludes courts from interfering in matters “involving the employment relationship between a religious institution and its ministerial employees.” The idea is that you can’t use civil rights laws to force Catholic churches to hire female priests, or orthodox synagogues to ordain Catholics, without running afoul of the First Amendment. The courts of appeals have for years struggled with questions about this ministerial exception, ranging from “What is a minister?” to “How the hell should we know what a minister is?” We can agree that the cafeteria lady isn’t a minister. But what about a secular teacher who performs some religious duties?

In Perich’s case, a federal appeals court determined—by counting the hours she devoted to secular and religious duties—that since her primary duties were secular, she was not a minister and could proceed with her ADA claims. The Supreme Court has never heard a ministerial exception case and presumably took to the case to clarify this issue.


Please don’t be fooled by those who argue that this is a case of the dreaded federal government brashly intruding into private church affairs. Even University of Virginia professor Douglas Laycock, who represents the school this morning, concedes that there are plenty of church matters in which the courts could assess whether the ministerial exception applied, and whether it was being used as a pretext in a retaliation case. Nobody claims today that all religious institutions are immune from any and all court scrutiny. The question is who is a “minister” and who gets to decide?

The case is thus about line-drawing. Laycock would say that anyone who holds ecclesiastical office, or anyone who teaches religion, is a “minister” who can be fired without recourse to the courts. The Equal Employment Opportunity Commission and Perich argue that they don’t want to micromanage internal church staffing decisions but that they do want judicial recourse when basic civil rights laws are broken. Both lines get blurrier as the morning goes on.

Laycock opens with a reference to the “bedrock principle” that “churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church.” Justice Sonia Sotomayor quickly explains that what bothers her is the possibility of the ministerial exception being used to deny court scrutiny of “a teacher who reports sexual abuse to the government and is fired because of that reporting.” She adds, grimly, “We know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and, I believe, children.”

Justice Anthony Kennedy points to the circularity of asking the court to formulate a test for a fired teacher who “can’t even get a hearing.” He tells Laycock, “You’re asking for an exemption so that these issues can’t even be tried!”

Chief Justice John Roberts asks how the court is meant to decide what a minister is in the first place. He wonders whether it covers “a teacher who teaches only purely secular subjects, but leads the class in grace before lunch?” Laycock says that this is an easy case because Perich was “a commissioned minister.” Roberts replies that this in fact solves no problems: “There are some churches who think all of our adherents are ministers of our faith. Now, does that mean that everybody who is a member of that church qualifies as a minister?”

Justice Elena Kagan asks whether “any religious teacher is a minister under your theory.” Laycock says yes.

Justice Stephen Breyer explains that Perich violated a tenet of the Lutheran faith: that disputes are resolved in the church, not the courts. Breyer then asks Laycock whether Perich knew she was in violation of this principle when she threatened to sue. Justice Samuel Alito says this is precisely why courts shouldn’t be looking into these types of questions. What “Martin Luther actually said about suing the church,” Alito observes, or what constitutes “a central tenet of Lutheranism,” are simply not inquiries courts are well-suited to perform.

Assistant to the Solicitor General Leondra R. Kruger finds herself in hot water with Justice Antonin Scalia when she asserts that the case should be considered as any old labor dispute, and without any special solicitude for the religion of the employer. Scalia explodes: “That’s extraordinary. That’s extraordinary. We are talking here about the Free Exercise Clause and about the Establishment Clause. … There is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization … but here, black on white in the text of the Constitution, are special protections for religion.”

Kruger then loses Alito when she distinguishes relationships within a religious community that “are so fundamental, so private and ecclesiastical in nature” that government might interfere, citing health or safety as important government interests, as opposed to “the general interest in eradicating discrimination in the workplace.” For the remainder of her argument she is quizzed by the justices on the left and the right as to why it is she believes that the Lutheran objection to civil litigation is less compelling than the Catholic objection to female priests. Alito puts it this way: “I can’t reconcile your position on those two issues without coming to the conclusion that you think that the Catholic doctrine is older, stronger, and entitled to more respect than the Lutheran doctrine.”

Walter Dellinger—a friend and Slate contributor—then has 10 minutes to speak on behalf of Perich. Before he can even finish the words “May it please the court,” Kagan jumps him with a question. After a long silence in which neither Kagan nor Dellinger can figure out who should be talking next, the chief justice finally says, “Justice Kagan.”

Kagan peers down the bench and says, “I feel like I missed something.”

Dellinger tries to explain that under the rule proposed by the church, even though a religious school could constitutionally be prevented from using peyote in its ceremonies, it could fire, without judicial recourse, any employee who reported that use. Asked what his proposed alternative test would be, Dellinger says the ministerial exception should not be offered to those employees who perform “important secular functions.”

“That can’t be the test!” retorts Roberts. “The pope is a head of state carrying out secular functions. Those are important. So he is not a minister?”

One of the amicus briefs filed on behalf of the church makes the argument that at “any point in time any given religious community is a mere generation away from extinction.” If the last 10 years have taught us anything, it might be that the same can be said of the rule of law. This is a terribly tricky case for anyone who believes that no institution should be granted broad immunity from judicial scrutiny and a doubly tricky case for any person of faith who believes the government shouldn’t pick their leaders. That’s why there are so many amicus briefs in the case: It pits a central American value (that we do not discriminate) against another central American value (that free exercise of religion really means something).

Indeed, if one were to try to offer any prophecies about the outcome of today’s argument, it should be only that Breyer seems to command a majority when he grabs his head and says, toward the end of the morning, “I’m stuck.”