Supreme Court Takes On Whether Religious Institutions Can Discriminate


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.


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Photo from steakpinball via flickr.


K s Goh
KS Goh6 years ago

Thanks for the article.

sb kidde
sb k6 years ago

A school that receives gvt. funds does so as a non-profit organization. This includes a school with a religious affiliation. It is proselytization to make a teacher become a member of the church in order to receive full benefits. A church that receives gvt. funds can legally show preference to someone from their group given equally qualified candidates, but it cannot require membership of the employees.

Being a part of a religious group does not provide entitlement to discrimination. Discharging a teacher due to a medical diagnosis only underscores the exploitation of the privilege to claim non-profit status. They used full benefits to induce membership. Now they want to fire her due to medical complications.

kaisuorvokki m.
kaisuorvokki m6 years ago

Religious people should be free to teach conservative faith and not to be forced to do anything they dislike. However, secular laws should protect people from religious harm. Example: Catholic school should be free to teach whatever they want. BUT law shoud also protect those who disagree, including those who need medical help (life-savng abortion), or person who want to die in dignity, without lingering in pain and death. Laws should, quite frankly, protect both sides.

Ron Avila
Ron Avila6 years ago

tax the churches and let them discriminate, but no tax breaks for bigots. gov't employees must do the job they are hired to do. If they won't based on their religion - fire them please. if you can't do the job, get one you can. Ban political speech and organizing from religious institutions. If churches want the state to keep out of their business than churches must keep out of the business of the state.
so religion is like a penis - great to have one and be proud of it but don't take it out in public and keep it out of my face!

Dakota Payne
Dakota Payne6 years ago

I think it is Un American to allow discrimination within religions

Brian Steele
Brian Steele6 years ago

I think in this regard, for once, UK employment law is fairly clear and sensible.

Where a religious institution is concerned, they are allowed to exercise certain discriminations where a "protected characteristic" is in clear conflict with the role being performed. Thus a church could use religion as a reason to refuse employment in a ministerial role to a Jew or a Muslim for instance, but not for a job as a cleaner. Similarly, sexual discrimination rules would be waived for refusing women priests in the Catholic church, but not for a church secretary.

General employment law, however, still applies. If an applicant is, or becomes, disabled, then the employer is still required to make (reasonable) adjustments to accomodate that or to allow the member of staff time off for medical reasons connected with it.

Thus, we too have a "ministerial exception", but only where the issue actually relates to doctrinal issues and not for all the rest of our employment protection legislation.

Tim Rolston
Tim Rolston6 years ago

I am totally sick and tired of various religious groups claiming special exemptions at every turn. Tax exempt status for institutions which frequently are rolling in cash and provide little or no useful productive effort to the economy beyond conning their converts out of hard earned cash based on the fear that they are going to hell if they don't cough up.

As to the separation of church and state, well a bit tricky when "in God we Trust" is emblazoned on virtually every public building, publication and goodness know's what else. Religion is simply a business, not a particularly ethical one in many cases and it should be subject to the same rules and regulations as any other.

In this case, as I understand it, the employee is not employed i.r.o "ministerial duties" but to teach on a broader base and one would imagine then the the exceptions wouldn't apply . It does however demonstrate once more that religious institutions frequently don't actually follow their own doctrines. A rampant atheist would show more compassion for someone suffering from ill health, most of the atheists of my aquaintance probably a lot more. Churches are all about self interest and money, providing them with special status is contrary to both the spirit and rules of democracy , freedom of choice and expression.

Nan Vonhelms
Nancy Vonhelms6 years ago

As a Lutheran I can say that it is a shame that this church has taken such an action against what appears to be a dedicated teacher. This church/school seems to completely miss the point of the compassionate teachings of Jesus. There should have been a way to accomodate this teacher.
Also, it needs to be clarified that there are Lutherans and there are Lutherans. Some are rigidly conservative and some adhere to the true teachings of Christ. The only Lutheran churches that have schools are Missouri Synod. This does not mean that these schools are located in Missouri. There is a broader Lutheran organization that has always strived to promote equality and justice for all people and that Lutheran body is called ELCA of which I am proud to be a member.
Please don't think that all Lutherans are as petty as the the hierarchy at Hosanna-Tabor.

Shirley Marsh
Shirley Marsh6 years ago

The whole point of democracy is the separation of state and religion. If religious requirements are not being met, the institution should have the right to terminate employment and the State has no business getting involved.

If the person cannot continue to perform the duties for which he or she was employed, all institutions should have the right to terminate employment, religious or secular. In the case of physical impairment, it is the State's responsibility to care for and help it citizens under those circumstances, not the private sector. That's what we pay our taxes for.

Where religious institutions receive funding from the Government, they should be as liable as any other employer for adhering to fair and safe practices in the workplace. Only religious tenets and requirements should be exempt from State intervention.

On a personal level, why would anyone want to continue working in an environment where they are clearly not welcome? When one door closes, another always opens, you just have to be on the look out for the opportunity! I speak from personal experience.

sandra m.
Past Member 6 years ago

Our freedom of choice is already in the toilet......
I think a march is in order for us taxpayers who are paying for things we donot believe in....
if we stop paying our taxes-- that should send a message--try and arrest us ALL