In First Amendment jurisprudence the applicability of employment discrimination laws to religious groups has to be among the most confusing and potentially controversial. And in the court’s first week, the justices took it on.
The story goes like this. In 1999, the Hosanna-Tabor Evangelical Lutheran Church School hired Cheryl Perich as a “contract teacher”–a classification reserved for employees that did not yet fit the church’s faith profile. Perich attended religious instruction under the church and eventually became a “called teacher”– a change in her employment status that meant she could be dismissed only for cause.
In 2004 Perich had to take medical leave, eventually being diagnosed with and treated for narcolepsy. When she was cleared by her doctors to return to work the administration questioned whether she was really fit to teach. After a few exchanges with the administration, Perich was threatened with termination. Perich returned the threat with one 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.”
The problem is, the ADA, like all civil rights laws, contains a “ministerial exception” that prohibits courts from interfering in matters concerning the “employment relationship between a religious institution and its ministerial employees.” The exception is pretty easy to understand. Without the ministerial exception, for example, civil rights laws could be used to force Catholic churches to hire female priests, for example. It was designed to strike a balance between equal protection rights and religious exercise rights.
The ministerial exception isn’t in the civil rights laws, though. It’s a court-created doctrine and one that is as muddled as most court-created doctrines are. That’s why Perich, a secular teacher who occasionally taught religious courses in a religious school, presents the court the perfect opportunity to try and draw some standard here.
Dahlia Lithwich provides a very good synopsis of the argument and it’s clear that the justices seem very uncomfortable peering in, and second guessing, the actions of religious institutions, but equally uncomfortable granting some kind of broad immunity to institutions that often live in the secular world.
That makes no less then half a dozen note-worthy cases in the court’s first term. It’s going to be quite a fall.
Photo from steakpinball via flickr.