Labor & Employment Newsletter

W. Mark Bennett
W. Mark Bennett

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Supreme Court Agrees with Grandma: Don’t Sleep in Church!

Asleep in ChurchMy grandmother, who for over 50 years took care of the babies in our church, only had one rule for me on Sundays: Don’t fall asleep during service!† Of course, for my transgressions I could expect a good scolding and possibly a nice warm back-hand.† Little did I know that if the Preacher fell asleep he could lose his job!†

It has long been believed that federal anti-discrimination laws protected all employees from discrimination in the workplace, with few and very limited exceptions.† It appears that those protections don’t extend, however, to employees of religious organizations who have “a role in conveying the church’s message and carrying out its mission.” †††

In a landmark decision, the Supreme Court decided in a unanimous opinion that “The church must be free to choose those who will guide it on its way,” citing principles of ecclesiastical independence dating back to the Magna Carta and embodied in the First Amendment, as it for the first time adopted the appellate courts’ “ministerial exception” to federal anti-discrimination laws.† Justice Roberts, writing for the Court, stated:

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. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

TJSeparation of Church and State has become a lexicon of American jurisprudence.† The term is actually an offshoot of the phrase, “wall of separation between church and state,” as written in Thomas Jefferson's letter to the Danbury Baptist Association in 1802; though the original concept of separating church and state is often credited to the writings of English philosopher John Locke.† The original text reads: “... I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between Church & State.”† The phrase was first quoted by the Supreme Court in 1878, and then in 1947 a unanimous Court agreed that there was a wall of separation between church and state. Interesting enough, the phrase “separation of church and state” itself does not appear in the United States Constitution. The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

In the case decided Wednesday, the court ruled against Cheryl Perich, who mainly taught secular subjects such as math and music, but had obtained the title of “minister of religion, commissioned,” and had some religious duties, such as leading students in prayer.† Ms. Perich had taken disability leave after being diagnosed with narcolepsy. When she sought to reclaim her position several months later, the church had filled her position and she was fired. She complained to the Equal Employment Opportunity Commission, which agreed that her firing violated the Americans with Disabilities Act.† The commission conceded that religious institutions are exempt from some anti-discrimination lawsófor example, the Catholic Church cannot be compelled to ordain women priestsóbut contended that Ms. Perich's job fell outside that limited exception. Ms. Perich spent most of her time teaching nonreligious subjects, so the Sixth Circuit concluded that she was not a ministerial worker.† In overturning that decision, the Supreme Court ruled that the question could not be “resolved by a stopwatch” and that Ms. Perich’s limited teaching about religion helped qualify her as a minister.

However, the court provided no clear guidance on how to evaluate and determine which church employees fall under the “ministerial exception” to discrimination laws.† In fact, the Court appears to abandon its longtime practice of balancing the interest in the free exercise of religion against important government interests, like protection against workplace bias or retaliation.†† Instead, the Court seems to minimize the scope of the ruling by avoiding “a rigid formula for deciding when an employee qualifies as a minister” and by not saying how the exception would apply in other circumstances.

In a concurrence, Justice Thomas wrote that the courts should get out of the business of trying to decide who qualifies for the ministerial exception, leaving the determination to religious groups.† “The question whether an employee is a minister is itself religious in nature, and the answer will vary widely,” he wrote.† “Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multifactor analysis risk disadvantaging those religious groups whose beliefs, practices and membership are outside of the ‘mainstream’ or unpalatable to some.”† In a second concurrence, Justice Samuel A. Alito Jr., joined by Justice Elena Kagan, wrote that it would be a mistake to focus on ministers, a title he said was generally used by Protestant denominations and “rarely if ever” by Roman Catholics, Jews, Muslims, Hindus or Buddhists.† Nor, Justice Alito added, should the concept of ordination be at the center of the analysis.† Rather, he wrote, the exception “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.”

That gasp you hear is not the next Arctic blast rolling its ways over the plains of the United States, it’s the exacerbation of every religious employee, in church, school, or university, who are now wondering whether the laws enacted to protect them against on the job discrimination will protect them in their individual situations.† The answer to that question is not easy to swallow.


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