The Supreme Court's Religious Double Standard

Today's Hosannah Tabor decision illustrates how religious institutions can work the system and win.

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It's good to be a religious institution in America, where the right to enjoy public funds may be unaccompanied by the responsibility to comply with generally applicable public laws. In a closely watched religious liberty case, Hosannah Tabor v EEOC, the Supreme Court has unanimously ruled that churches enjoy broad, barely defined exemptions from civil rights laws in hiring and firing employees they classify as ministerial.
  
The basic concept of a "ministerial exception" to secular civil law is not new, or remarkable: federal appeals courts have recognized that religious organizations have obvious, essential First Amendment rights to choose their own religious leaders. But Hosannah Tabor raised hard questions about the scope of this exception, its application in retaliation cases, and the deference courts must afford to a church's claim that an employee is in fact, ministerial. To the benefit of religious employers, the Court didn't answer these questions so much as avoid them.

The decision effectively grants churches a license to act in bad faith, as institutions governed by mere human beings often do.

I wrote about Hosannah Tabor at length here. In brief, the case involved a lawsuit under the Americans with Disabilities Act by Cheryl Perich, a former teacher at a Lutheran school who had been fired after taking a disability leave for narcolepsy. Her particular status as a minister was debatable and divided the courts. A federal district court dismissed her suit, granting the church a ministerial exception. The 6th Circuit Court of Appeals vacated, concluding that Perich was not a minister and holding that courts could decide whether a particular ministerial exception claim was simply a pretext for avoiding liability in an employment case.
  
Given the arguable ministerial nature of Perich's job, it's not surprising that the Supreme Court deferred to the Church's exception claim here. But it is a bit startling to hear the Court's blithe indifference to the possibility that such a claim might be merely a pretext. The government, and Cheryl Perich, argued that "the asserted religious reason" for her firing was, in fact "pretextual," as Justice Roberts observes. 


"That suggestion misses the point of the ministerial exception," Roberts noted. "The purpose of the exception is not to safeguard a church's decision to fire a minister only when it is made for religious reasons. The exception instead ensures that the authority to select and control who will minister to the faithful -- a matter 'strictly ecclesiastical ... is the church's alone."

Robert's logic is a bit hard to follow. The ministerial exception gives churches the right to fire alleged ministers for non-religious reasons, he asserts, because it is intended to ensure the church's right to decide religious or "strictly ecclesiastical" matters. But the salient point is his lack of concern for the legitimacy of the underlying ministerial classification. If the church's reason for labeling an employee a minister is entirely non-religious  -- avoidance of civil liability, for example -- Roberts, it seems, would just as soon not know about it. His opinion effectively grants churches a license to act in bad faith, as institutions governed by mere human beings often do.

Robert's didn't exactly dispute the possibility of a church engaging in wrongful or even criminal behavior. But he declined to consider whether the ministerial exception would apply in "other types of suits, including actions by employees alleging breach of contract or tortuous conduct by their religious employers." In other words, the Court left questions about the rights of whistleblowers for another day, but given the broad immunity conferred on churches by this ruling, and its chilling effect on employee lawsuits, that day will not soon arrive.
 
Finally, the decision in Hosannah Tabor confirms the Court's results-oriented approach to establishment clause disputes involving the rights and responsibilities of religious organizations. For the purposes of receiving government support, religious groups are to be treated like secular groups. But for the purposes of  complying with generally applicable laws, churches enjoy special status and special immunity as religious groups.

Consider these cases. In Rosenberger v University of Virginia, the Court required a state university to disburse student fees to a student publication engaged in sectarian proselytizing. In Good News Club v Milford, the Court required a public elementary school to open its limited public forum to a proselytizing Christian group. In these cases, the majority rejected establishment clause bars to government support for sectarian religious speech as forms of viewpoint discrimination. The groups' speech was characterized as just another viewpoint, or, in effect, just another "ism," like feminism, capitalism, communism, or vegetarianism. And as just another ism, religious speech was entitled to neutrality under generally applicable rules.

But the Court ignores or greatly diminishes this neutrality principle when it would require churches to comply with generally applicable civil rights laws. Religious groups were treated as equivalent to secular associations in Rosenberger and Good News Club. But in Hosannah Tabor, the Court rejected the government's argument that a religious employer's right to immunity from employment laws was coincident with the associational rights of secular groups. The Court's double standards in establishment clause cases is clear: It has weakened establishment clause prohibitions when churches and other sectarian groups are on the receiving end of government largesse and strengthened establishment clause protections when they seek immunity from generally applicable laws. It's good to be a religious institution in America.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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