The Individual Conscience and the Rights of Church Bodies

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If civil rights laws don't apply to religious teachers, Justice Sotomayor asks, what about child-abuse reporting laws?


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In Wednesday's oral argument in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, Justice Elena Kagan identified a crucial gap in the American law of freedom of religion: free exercise cases pit government against conscience. But whose conscience?

Common sense tells us the issue is different when the state's opponent is the lonely worshiper than when it is, let's say, the Archbishop of Boston. In one case, it's David v. Goliath; in the other, the forces may be more evenly balanced--and a lot of Davids may be affected when the state cedes power to the church.

The Court has never recognized any individual right to free exercise that would block application of a civil rights law; in the 1990 case of Employment Division v. Smith, Justice Antonin Scalia for the Court made clear that all "generally, neutrally applicable laws" must be followed--even if they further relatively unimportant government purposes, and even if they suppress an individual's religion entirely. No "balancing," no special tests. Goliath wins.

Why should a church have more rights than an individual? The issue in Hosanna-Tabor is whether a church-sponsored school can dismiss a teacher on illegal grounds and then shelter that decision by asserting that because she performs religious duties, she is a minister and that anti-discrimination laws don't protect her.

The Church's argument is that the state simply can never trump the autonomy of a religious body in choosing its religious employees, even when that choice is made on flatly illegal grounds. But Kagan noted a paradox in this contention. "In order to make an argument of the ministerial exception," Kagan said, "you in some sense have to say that institutional autonomy is different from individual conscience; that we have said in Smith that state interests can trump individual conscience. And you want us to say that they can't trump institutional autonomy. So why is that?"

Justice Sonya Sotomayor made the stakes clearer by asking Douglas Laycock, University of Virginia law professor who represents the church, whether a teacher at a polygamous-sect school, fired for obeying the mandatory child abuse reporting laws, would have no protection from dismissal.

Laycock replied, in essence, that the state could punish the teacher if she did not report, but could not protect her if she did. "We think the appropriate rule should be the government can do many things to force reporting, to penalize people who don't report, but a discharge claim by a minister presents the question why she was discharged and the court should stay out of that."

Thus in resolving one conflict among consciences, the Court might inadvertently create much worse ones.

The ministerial exception, which is recognized in some discrimination statutes and implied by courts in others, is designed to make sure that no court ever ends up ordering the Archbishop to hire female priests contrary to church doctrine. It come from a mixture of the Free Exercise Clause--leave religious practitioners alone--and the Establishment Clause--stay out of matters of doctrine and church order. But how far does it extend?

Laycock and the church urge the Court to cover any employee whose duties include important religious functions. That would cover even teachers of secular subjects like math, if, like the fired teacher in Hosanna-Tabor, she also sometimes led Bible studies and prayers. The government, in its brief, urges the Court to find that there is no general exception--or, if there is one, it applies only to those whose duties are exclusively religious. Cheryl Perich, the victim of discrimination in the case, asks the Court to apply the exception only to employees who are in such central leadership positions that interference with their selection would impair the religious group's central message--and even then, only when the government has no compelling interest in ensuring uniform enforcement of the law.

Too hot? Too cold? Just right? Not hardly. There is no Goldilocks point in these cases. Solomon only had to choose between two claimants. The three-way problem in Hosanna-Tabor may be harder to solve than the famously difficult three-body problem of physics.

Here are the facts: Hosanna-Tabor School, in Redford, Michigan, was operated by the church of the same name. Cheryl Perich went to work in the elementary school in 1999. The next year, she qualified as what the church calls a "called teacher," meaning that she had completed a course of study in church teachings and received a "call" voted by her congregation. Being "called" didn't change her duties much--she had taught secular subjects and religion before and she kept doing both. It did, however, provide her with extra job security. She was also known within the church community as a "commissioned minister"--a description of those who "act as auxiliaries of the pastoral office" but do not perform the sacred functions of an "ordained minister."

In 2004, Perich was diagnosed with narcolepsy. Her doctor cleared her to return to work after a few months, but the school told her her job was filled. It cut off her disability insurance, and instituted a policy asking "called" teachers to resign if disabled for more than six months. One administrator told her that "[p]arents have told me that they would be uncomfortable with you in the building." Perich threatened suit under the Americans with Disabilities Act. The school dismissed her "for threatening to take legal action." The congregation rescinded her call--though it continued to recommend her as a "called teacher" to other Lutheran schools.

The EEOC then sued the school for "retaliation"--discrimination because an employee invoked her rights under a civil-rights statute. There's no real doubt in the record that the church discriminated on the basis of her illness. That might or might not be "reasonable"--that is the issue ADA cases turn on. There's also no question at all that the church committed retaliation, firing her because she considered moving against it before the EEOC. Retaliation in civil rights law is a big no-no: even claimants with no real case are supposed to have free access to government agencies and courts. But the Church invoked a theological doctrine requiring Lutherans not to resort to the civil courts. It moved to dismiss the suit, saying she was a minister and fell under the exception for both discrimination and anti-retaliation claims.

It also argues now that a judgment for Perich would amount to government "selecting ministers," because the EEOC can order an employee reinstated. In this case, that admittedly can't really happen, for two reasons. First, the school no longer exists, no reinstatement isn't possible. Second, the school, if it existed, could reinstate Perich as a secular minister, without reinstating her "called" status. None of that matters, says the church: even awarding Perich the pay she has been denied would be "selecting ministers," because it would put pressure on churches to avoid lawsuits even when ministers violate the Faith. In addition, it admits, the "called minister" status isn't what's important here. Its proposed exception would cover any teacher at a religious school who had religious teaching duties.

This issue becomes important because many religious bodies are much more than humble chapels where a solitary curate says Mass before scattered congregants. They run schools, hospitals, stores, recreation centers, entertainment facilities--almost any kind of secular commercial facility has its analogue somewhere in the sprawling world of American religion. (I once knew a pastor who had an espresso bar inside the sanctuary of his megachurch, so that worshippers jonesing for espresso need not interrupt their devotions. I have no doubt those baristas are doing the Lord's work.)

Too narrow a ministerial exception would bring government into the sanctuary. Too broad an exception will permit religious bodies to operate outside the law.

Justice Sotomayor's child abuse worries are not all theoretical: the Court is currently holding Weishuhn v. Catholic Parish of Lansing. In that case, one of the grounds for the teacher's dismissal was that, without notifying school authorities, she called the authorities to report a suspicion of child abuse--as both teachers and clergy are required to do. The church wasn't trying to protect itself--the suspicion concerned a parent--but the next case may be different.

The problem for the Court is that there isn't really a "middle ground" it can neatly steer between the nation's commitment to equality and the rule of law and its equally powerful norm of religious freedom. The judgment of Solomon only seems wise because he never actually split the baby. One woman had to win and one had to lose. In this case, everyone could be a loser.

Image: Reuters

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore, and is the author of American Epic: Reading the U.S. Constitution.

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