It's not often that the chief justice of the United States sounds like a good-hearted waitress at a Southern diner -- "Y'all come back now, hear?" But he sounded that note Wednesday, as the Court decided Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Commission, the first of what is likely to be a series of cases on the so-called "ministerial exception" to anti-discrimination laws.
In a world where Pastor Skip leads worship in the morning and coaches baseball in the afternoon, it can be hard to determine where religious autonomy ends and discrimination begins.
The Court was unanimous in holding that a small church school in Michigan could not be required to pay damages to a teacher it fired in what seems like a pretty clear violation of the Americans with Disability Act. The reason is that the teacher, Cheryl Perich, was a "called minister" of the Evangelical Lutheran Church congregation that sponsored the school. That didn't mean she was the pastor -- her duties were pretty much indistinguishable from those of non-"called" teachers at the school -- but she received extra job security and tax benefits from her status.
When Perich became sick with narcolepsy, she took leave to try to stabilize her condition. Six months later, when she said her doctor had cleared her to work again, the school told her she had been replaced for the school year and that if she showed up for work she'd be dismissed. She responded that her dismissal might violate the ADA, and that she had spoken with an attorney about her rights under the act. The school then fired her, saying she had violated a Lutheran religious policy of keeping disputes out of the secular courts.
Take religion out of the picture, and you've got a pretty open and shut case of discriminatory retaliation, which the statute plainly forbids. The EEOC took her case. A trial judge dismissed it, invoking the "ministerial exception." That exception is not written into the statute; when Perich appealed to the Sixth Circuit, it reversed. The exception exists, the Court of Appeals held, but did not cover an employee like Perich, who basically performed lay duties.
Hundreds of cases had considered this issue in the lower courts, concocting differing formulations for the exception, but the Supreme Court had not spoken until Wednesday. The Court's decision cheerfully notes that this is "our first case involving the ministerial exception." In an opinion by the chief justice, it conducted a careful analysis of Perich's duties and performance to conclude that "the exception covers Perich, given all the circumstances of her employment." The church "held Perich out as a minister," giving her a specific diploma and instructions to perform her office in accord with church teachings. She received her "call" after "a significant degree of religious training followed by a formal process of commissioning." She "held herself out as a minister," and claimed "a special housing allowance on her taxes that was available only to employees earning their compensation 'in the exercise of the ministry.'" Her job gave her "a role in conveying the Church's message and carrying out its mission."
Because of her title and the process it reflected, her own use of the term minister, and the religious functions she fulfilled, Roberts said, she is a minister for purposes of the exception. "Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision" -- it injects the state into decisions of a private, protected religious body.
The reason that Roberts's opinion constitutes an invitation is that the test he applied does not purport to be definitive. "We are reluctant... to adopt a rigid formula for deciding when an employee qualifies as a minister," he wrote. In addition, the exception may be different when different legal claims are involved: "We express no view on whether the exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers. There will be time enough to address the applicability of the exception to other circumstances if and when they arise."
Though all nine justices signed on to Roberts's opinion, three of them are already looking ahead to future cases. Justice Clarence Thomas wrote a brief concurrence suggesting that the Court had not gone far enough. In his view, the courts should "defer to a religious organization's good-faith understanding of who qualifies as a minister." Once the church designates any employee by that title, the state's jurisdiction would end. Inquiries into an employee's duties, title, and religious function -- of the sort Roberts conducted in his opinion -- would violate the First Amendment, he said.
Justices Samuel A. Alito and Elena Kagan -- hardly ideological or religious twins -- concurred to suggest a more specific test than the one implied in Roberts's opinion: the exception, they wrote, "should apply to any 'employee' who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith."
Many matters remain to be litigated then, and the Chief Justice has extended what (during attorney admissions) he likes to call a "warm welcome" to the Court's in-box. Future applications may be more divisive among the nine than this one.
I found three things interesting about the decision. First, in its arguments to the court, the federal government took a very hard line on the "ministerial exception." It essentially argued that there was no such thing, and that in each case a court should give "careful consideration of a particular group's expression, whether inclusion of the individual in question would significantly impair that expression, and, if so, whether, under all the circumstances, the government's compelling interest should nonetheless prevail." If there was to be an exception, the government suggested, it should cover only those who performed "purely religious duties" -- a high hurdle in a world where Pastor Skip usually leads worship in the morning and coaches youth baseball in the afternoon. If the government had asked for less, it might or might not have gotten more.
Second, the opinion rehearses in exhaustive detail the history of religious autonomy, beginning (not kidding) with Henry II's dastardly attempt to rig an episcopal election for "Richard my clerk" and coming forward through 19th-century about ownership of religious property. No such loving consideration is given to the rise of the anti-discrimination principle --which occurred after most of the Court's favored precedents were decided -- or the pressing social imperatives behind it. It is no surprise that a court that considers only one set of precedents concludes they need not be balanced against another.
Third, my least-favorite Supreme Court case, Employment Division v. Smith, is increasingly a red-headed stepchild of the Court's religion jurisprudence. In Smith, the Court held that Oregon could criminalize the peyote sacrament of the Native American church because the Free Exercise Clause does not excuse citizens from obeying "neutral, generally applicable laws." Civil rights laws, the Court concedes, are exactly such laws. "But a church's selection of its ministers is unlike an individual's ingestion of peyote," Roberts reasoned cheerfully. "Smith involved government regulation of only outward physical acts. The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself."
The Court has declined to extend Smith, which is a good thing. But Justice Scalia's insulting, vulgar Smith opinion is still formally the law of the land. Church autonomy won on Wednesday; the autonomy of the individual worshiper deserves better than the Court has given it to date.