Supreme Court: Ministerial Exception


KIM LAWTON, correspondent: The case involves Cheryl Perich, a fourth-grade teacher at a Lutheran Church Missouri-Synod school in Michigan who mainly taught secular subjects, but also taught religion and led prayers. She took a leave of absence to get treatment for a sleep disorder. When the school was reluctant to let her return, she threatened to sue for violation of the Americans With Disabilities Act.

CHERYL PERICH: I can’t fathom how the Constitution would be interpreted in such a way as to deny me my civil rights as an elementary school teacher. I sure hope the Court agrees.

LAWTON: Lawyers for the school said Perich was considered a commissioned minister, and therefore she was covered by a legal doctrine known as the ministerial exception. That exception says religious groups don’t have to follow anti-discrimination laws in employment decisions about their leaders.

DOUGLAS LAYCOCK (University of Virginia School of Law): Disputes between ministers and their churches, if anything is covered by separation of church and state this is it. These cases do not belong in the civil courts.

LAWTON: For almost 40 years, lower courts have granted houses of worship and other religious institutions this exception. The idea is that under the First Amendment’s religious freedom guarantees, courts should not get involved in a religious institution’s decisions about hiring and firing its ministers. But how far should that exception extend?

post02-minsterialexceptionLuke Goodrich is deputy national litigation director at the Becket Fund for Religious Liberty, which is representing the church and school in this case.

LUKE GOODRICH: Our Constitution recognizes that the government and the church are separate entities with separate roles in society and that they shouldn’t be allowed to intrude on each other. So the church doesn’t get to pick government leaders, and the government doesn’t get to pick church leaders.

LAWTON: But some argue that the ministerial exception has been taken too far. Barry Lynn is executive director of Americans United for Separation of Church and State. He’s also both a lawyer and a United Church of Christ minister.

BARRY LYNN (Americans United for Separation of Church and State): Unfortunately, I think some religious organizations use this idea of a ministerial exception as a pretext to dismiss people on the basis of their color, their gender, their racial background, or their disability, and that really runs counter to every principle of, I think, morality and every principle of our civil rights system.

LAWTON: Goodrich says the larger religious liberty principle is too important to have juries deciding what was a religious motive for hiring or firing.

GOODRICH: Even if a church may not be acting, you know, may have mixed motives, it is important to allow the church to decide, because you have a lot of cases where there aren’t mixed motives, and the church makes a purely religious decision. But if you allow juries and courts to second-guess that, churches will not be free to make decisions based on their religious beliefs.

post03-minsterialexceptionLYNN: Courts are good at determining whether something is a sincerely held belief. We do it with conscientious objectors to war. This is just another red herring added by some religious groups that frankly want, if not themselves, others to be able to discriminate on any basis.

LAWTON: One of the most difficult questions is determining who is a minister. Is it only those who have been ordained? What about ministers of music or online ministers or teachers at religious schools?

LYNN: Unfortunately, judge-made law—some very strange judge-made law—suggests that this is a very broad idea, that it encompasses virtually all of the employees of a ministry, of a religious body, if the religious body just says you are all really ministers and thereby precludes them from filing civil rights lawsuits.

LAWTON: Many religious groups say it shouldn’t be up to the government to decide what duties are ministerial in nature.

GOODRICH: The Becket Fund’s position in this case is that the court should look at whether the employee performs important religious functions, and that includes teaching religion, leading prayer, and leading worship. If the person at issue is responsible for proclaiming the church’s message to the rest of the world, that would bring them within the ministerial exception, because the church needs to be able to choose who’s going to carry its message to the rest of the world.

LAWTON: The Obama administration is taking a hard line in the case. To the dismay of many religious groups, the Justice Department urged the Court to reject the ministerial exception altogether, saying the First Amendment doesn’t offer such special protection.

post04-minsterialexceptionKIM COLBY (Christian Legal Society): It’s very troubling that the United States government wants 40 years of law protecting this vital religious liberty, this vital component of separation of church and state—they want it repealed by the Court.

LAWTON: If the High Court keeps a ministerial exception, the Justice Department argued that it should be limited to employees who perform “exclusively religious functions.” Religious groups say that definition is unworkable because virtually all ministers do a variety of tasks that on their surface may not appear to be religious.

GOODRICH: Even the archbishop has secular responsibilities, whether it’s managing personnel or managing the finances. Even the pastor of your local churches has secular responsibilities. A lot of pastors help take care of the building, mow the lawn on the weekends, so nobody does only religious activities.

LAWTON: Lynn supports keeping a ministerial exception but says it should be narrowly defined.

LYNN: The way this could be looked at is a very narrow exception for pastors and for other people who have primarily religious functions, while other people who at best might give a prayer occasionally over cookies and milk at a religious school will not be considered a minister, and if they are fired for the wrong reason, on the basis of gender, on the basis of disability, on the basis of race, they can get into a courtroom.

LAWTON: On the other side, nearly a hundred diverse religious groups filed briefs supporting the church’s right to choose its own ministers.

RABBI DAVID SAPERSTEIN (Religious Action Center of Reform Judaism): It seems all of us, even those of us who are deeply committed to civil rights, to protection of disability rights, to preventing retaliation for claims believe strongly that church autonomy and the ministerial exception are indispensable to religious freedom.

LAWTON: The US Conference of Catholic Bishops, the Church of Jesus Christ of Latter-day Saints, the Episcopal Presiding Bishop, and the Union of Orthodox Jewish Congregations joined together on one of the briefs. They said “when the dispute is between the church and the church member who seeks to serve in ministry, there is no occasion—no justification whatsoever—for the state to become involved.”

Lower courts have been wrestling over the ministerial exception for decades, but this is the first time the Supreme Court has taken up the issue. A decision is expected by early next year.

I’m Kim Lawton in Washington.

  • Rev. James Athey

    I am an Ordained Minister (Pastor) in the Lutheran Church – Missouri Synod. I believe this is a very complicated case – in no small part due to our complicated stance on our ministerium in our church body. I must voice one complaint about this article though. The church/school in question did not revoke her call as a commissioned teacher on the grounds of her narcolepsy, but rather on the grounds that she threatened/sought to bring a lawsuit against her employer rather than resolving the case through established synodical tribunes as every minister or congregation is expected to do within our church body in the case of a dispute. I am disappointed that this article is presented in such a way that it seems this church (and others) is fighting for a right to discriminate against people with disabilities. Please present both sides fairly.

    Rev. James Athey

  • CG

    Anything involving disputes within the church is suppose to be resolved within the church is mentioned in: 1 Corinthians 6:1-6 1 Corinthians 6:1 If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints? 2 Do you not know that the saints will judge the world? And if you are to judge the world, are you not competent to judge trivial cases? 3 Do you not know that we will judge angels? How much more the things of this life! 4 Therefore, if you have disputes about such matters, appoint as judges even men of little account in the church! 5 I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? 6 But instead, one brother goes to law against another– and this in front of unbelievers!

    Let’s keep this issue within the church, and do as led by the Spirit.

  • Shaykh al-Hajj Dawud Ahmad al-Amriki

    Those without faith see “religion” as part of the lives of the faithful; the faithful see their lives as part of their religion. This is perhaps most clear for a muslim, for whom any beneficial action is a “good work,” in Judaism called a “mitzvah” and a religious practice. For the faithful, enterprise, procreation, and pleasure-seeking are religious acts in obedience to God’s Commad to “produce, proliferate, and partake as you please.” “Living” as a human being is the more immediate part of our existence with God.

    Roman Catholicism, however, historically divided the Church into the ministry and the laity, a division of the congregate society inherited and perpetuated by the Protestant Reformation into most, if not all, denominations. Secular government has taken the same shape of “governors” and “governed” ~ Louisiana has “parishes,” not “counties,” not without reason; and domestic government of the Colonies, before they became States, was largely by Church-made law. This is a large part of the reason for the First Amendment’s prohibitions intended to erect “a wall of separation between Church and State.” But both Church and State, in America, have persisted in attempting to breach that wall.

    It is important to note that “the ministry” is said to “serve the body of the Church,” with “the body” being defined as the congregation of the faithful, not the building and grounds and other “secular” accompaniments ~ although “serving the body” definitely involves administration of those “secular” attributes of the congregation. Moreover, the ministry is charged with dispute resolution ~ a necessary element of any society; and with accommodation of contingencies; reconciliation; social cohesion; neighborly cooperation and mutual assistance; in short, everything involved in maintaining the congregation as “a world apart,” a Kingdom of God (perhaps in waiting), self-sufficient and independent and “in the world but not of it.” This is the character of any religion, and the administration of any ministry. “Ministry” among the faithful is not limited to sacerdotal affairs, ritual performances, explication of doctrines, and those things that are seen by the faithless as the “religion part” of the lives of the faithful. Raising, training, and educating the next generation to enable them to perpetuate the congregate society is just as much a ministerial function as is pastoral counsel or ritual worship. It is this broader “free exercise” with which the State may not interfere, absent a “compelling State interest” to be satisfied by “the least restrictive means.”

    Simply stated, when someone chooses to go to work for a religious congregation, in whatever capacity, he or she is joining the ministry of that congregation. Going into a society explicitly forbidden to secular government, with its own systems of morality and justice, to participate in the administration of that society’s affairs, is a priori acceptance of the “ministerial exception” as determinative of any civil action taken to a secular court. What is “ministerial” within a congregation of the faithful is not for the State to determine.

    Religious institutions should be vigilant against attempts by other polities ~ whether secular or ecclesiastical ~ to influence, intrude, or mandate their administration of their congregate affairs. To preclude conflicts such as the one presently submitted to the Supreme Court, employment by a religious establishment should be exclusively by contract, which should include an explicit waiver of any and all civil claims in which the State might have less than a “compelling” interest. The Constitution’s laissez-faire prohibitions regarding religious liberty have an absolutely appropriate effect ~ they leave every community of the faithful to succeed or fail in the choice of their faithful to build and sustain a society of faith, on their own initiative and merit, with neither aid nor interference from the secular dominions. The teacher, having joined the ministry, should have resolved her diffrerences within the Church ~ which is much more capable of administering equity than the secular law courts. Going to the secular courts was a de facto resignation of her ministerial office ~ an explicit contract of employment could have made it de jure as well.

  • S Samuels

    My issue is this: the church would never have called her “Minister Cheryl”, right? And yet they allow the Court to do so if it swings things their way?

    Under these sweeping generalizations, couldn’t even a church *pianist* also lose protections because they participate in leading worship? I am all for the separation of church and state, but this broad definition of the ‘ministerial exception’ has got me absolutely terrified.

    – A 20 year faithful church employee.

  • Goldfire

    Cheryl Perich is a perfect example of what is wrong with Christianity today.
    Don’t you love it when a minister of God believes it is their right to sue a church of God?
    It says so much about the very heart and soul of a person.
    It’s not enough that the very church she served says for her to only wait until Summer, oh no!
    “The very fact that you have lawsuits among you means you have been completely defeated already.”
    Her one act of unbending defiance left her church in no other position but do what it must and I agree whole heartedly with their decision to govern themselves as they believe God would have them do so.
    I can only pray that Cheryl some day sees the big picture of where her energy and devotion needs to be
    (hint: its not about you).