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Discrimination Is Ok If You’re Religious

Jill

Cool story bros.

The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, who had been a teacher at a school in Redford, Mich., that was part of the Lutheran Church-Missouri Synod, the second-largest Lutheran denomination in the United States. Ms. Perich said she was fired for pursuing an employment discrimination claim based on a disability, narcolepsy.

Ms. Perich had taught mostly secular subjects but also taught religion classes and attended chapel with her class.

“It is true that her religious duties consumed only 45 minutes of each workday,” Chief Justice Roberts wrote, “and that the rest of her day was devoted to teaching secular subjects.”

“The issue before us, however, is not one that can be resolved with a stopwatch,” he wrote.

Instead, the court looked to several factors. Ms. Perich was a “called” teacher who had completed religious training and whom the school considered a minister. She was fired, the school said, for violating religious doctrine by pursuing litigation rather than trying to resolve her dispute within the church.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said Wednesday’s decision could have pernicious consequences, by, for instance, barring suits from pastors who are sexually harassed.

“Blatant discrimination is a social evil we have worked hard to eradicate in the United States,” he said in a statement. “I’m afraid the court’s ruling today will make it harder to combat.”

Bishop William E. Lori, chairman of the United States Conference of Catholic Bishops’ ad hoc committee for religious liberty, called the ruling “a great day for the First Amendment.”

“This decision,” he said in a statement, “makes resoundingly clear the historical and constitutional importance of keeping internal church affairs off limits to the government — because whoever chooses the minister chooses the message.”

Right. So you can be fired for pursuing discrimination claims in court, because not following the Church’s rules to keep everything under wraps violates the First Amendment. I do not see any possibility of this turning out poorly for anyone.

31 thoughts on Discrimination Is Ok If You’re Religious

  3. As shitty as the ruling may be, it’s constitutionally valid and deserved the unanimous vote it got from the SCOTUS. The ministerial exception is an important part of the separation of church and state, and even though it means churches get to basically be gigantic assholes if they want there isn’t a way to invalidate it without violating the first amendment.

    Discrimination is a social evil that we will always be fighting. Some churches will be our opponents in that fight, and our response should be to pull all support and interaction from such churches (don’t worship or tithe to a church that would fire someone for this reason, don’t your child in a parochial school that would fire a person for this reason, etc). Support churches that don’t discriminate so that they flourish. Let the rotten church wither and die, don’t waste our energy trying to force it the rotten ones to change.

  4. The 1st Amendment doesn’t cover hate.

    Fuck that shit.

    The first amendment definitely covers hate, and it’s a good thing that it does. All the better to let the hateful speak and be revealed for what they are than to keep them muzzled so that their true intentions are hidden.

  5. this story has been on NPR and i want to know why she was asked to leave in the first place. I get that she was fired only after she threatened to sue but she wouldnt have threatened to sue if the school wasnt a dick and told her she should resign after approved medical leave. anyone familiar with the back story?

  6. According to the NYTimes story, she was asked to leave because she was narcoleptic.

    The article says she was fired not because she was narcoleptic, but because she filed a legal complaint for how she was treated because she was narcoleptic. The church said that their rules require people to try to work it out with mediation. Since she filed a lawsuit, they said she broke that rule.

    So it isn’t as simple as she was narcoleptic so they fired her. However, it is disturbing that the court said the church has the right to prevent people from using the US legal system.

  7. In oz, religious exemptions are written into our anti-discrimination laws, albeit generally only for ageing, sex and sexuality and gender identity based discrimination. Apparently we recognise that religious justifications for race and disability based discrimination are bollocks but say, requiring that state-funded religious primary and secondary schools not discriminate against queer and trans kids would be an infringement on their rights to persecute vulnerable members of society.

    /bitter.

  8. @ Lance, but they are not speaking. They are acting. You can’t kill someone/harass someone/keep someone from employment because of their race/sex/sexual orientation/disability and then be all like FIRST AMENDMENT BITCHEZZ!!!

    And for a Bishop who’s all like SEPARATION OF CHURCH AND STATE, he sure isn’t hesitant to invoke the 1st amendment (state) to back up his church.

  9. I understand that courts can’t be expected to intervene in doctrinal disputes, or decide who should be hired as a minister, or even to decide things like whether a product is “really” kosher. And I even understand that religious institutions have to be able to discriminate on grounds of religion when it comes to hiring people who are involved in delivering or teaching their “core” messages; a synagogue or yeshiva can’t be forced to hire a Catholic, and a Catholic church or school can’t be forced to hire a Jew, to teach religion at their religious schools (let alone to be a member of the clergy). Arguably, a church that believes that people of color are Satanic “mud people” has to be allowed to hire only white Christians, and to discriminate on the basis of both religion and race. And so on. But I just have trouble understanding why the fact that this woman taught religion for one period a day (and apparently taught other subjects the rest of the time) should be enough to place her within those kinds of exceptions, and prevent her from pursuing the same kinds of remedies that are available to others for disability discrimination. It isn’t as if the need to be non-narcoleptic was claimed to be a core belief of this church.

  10. @ Lance, but they are not speaking. They are acting. You can’t kill someone/harass someone/keep someone from employment because of their race/sex/sexual orientation/disability and then be all like FIRST AMENDMENT BITCHEZZ!!!

    And for a Bishop who’s all like SEPARATION OF CHURCH AND STATE, he sure isn’t hesitant to invoke the 1st amendment (state) to back up his church.

    But it’s a church that is taking the action, and the action it is taking is in regards to who it employs. It’s an internal church affair, and internal church affairs are protected by the first amendment. (I just mentioned speech as that’s a good example of why it’s important for the first amendment to cover things that can be detestable.)

    PBS NewsHour had a good breakdown of this case and the view behind the decision. You can see the report and read the transcript here: http://www.pbs.org/newshour/bb/law/jan-june12/scotus_01-11.html

    This is the really pertinent part:

    He said, if you impose an unwanted minister on a religious organization, that violates the free exercise clause which protects churches’ right to shape their faith through their hiring decisions. And he said, also, if you give the state the power to determine who is a minister, you violate the establishment clause, which prohibits government interference in purely church decisions.

    This church is being shitty, but they have a right to be shitty. By protecting their right to be shitty, we’re also protecting very important rights that have been foundational to our country. Sometimes the distasteful decision is also the right decision.

  11. ^

    But the problem, Lance, is the old “slippery slope.” If the “ministerial exception” is limitlessly broad and every organization has the unfettered right to decide which of its employees are, in fact, “ministers,” then a church could simply declare that janitorial, secretarial, and other employees who actually have nothing to do with conveying its religious message are “ministers” and can be hired and fired without regard to any employment discrimination laws whatsoever. In other words, the exception to the anti-discrimination laws becomes so large that it swallows the laws entirely with respect to such employers. Surely, that goes beyond the intent of the exception, which I think is more along the lines of what I described in comment # 10 above.

  12. Oh, I agree that this is could spell the end of church compliance with employment discrimination laws. Some churches will take advantage of this decision to discriminate in unethical ways, and there will be no legal recourse against them. We will have to utilize social recourses against those churches instead. (Like the types of things I mentioned in my typo-laden first post here.)

  13. I wouldn’t disagree with the decision as long as all churches lose their tax exempt status immediately.

  14. This was a unanimous decision. While I feel that it was technically correct, the church pulled a fast one – they had already decided to fire her before she threatened the lawsuit. The church has the absolute right to determine it’s clergy, but they could have done the morally right thing and taken care of a disabled parishioner. What’s legal isn’t always what’s right. If they really believe in heaven St. Peter might have some tough questions for them.

  15. I’d have to concur with DonnaL’s slippery slope analysis. As I read the decision, it sets the bar pretty low as to who qualifies for a ministerial exception. Justice Thomas, in his concurring opinion, declares that there ought to be no restriction at all on the religious organization in determining who is a minister, while Justice Alito’s concurrence provides the very broad guideline that 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. (Emphasis mine)

    This decision doesn’t preclude an employee of a religious organization from filing suit, but it gives the judge hearing the case a great deal of latitude to dismiss based on the defendant’s definition of “minister.”

    It’s worth noting, in case anybody’s missed it, that the decision was unanimous. I get it, in principle, but still and all, it troubles me.

  16. Oops, the bold text didn’t appear.

    Should have been this: “…or serves as a messenger or teacher of its faith.” The point being, that’s pretty broad language as to who qualifies as a minister.

    Also, I didn’t refresh before Joe’s comment appeared. He mentioned the unanimity of the decision before I did.

  17. Nell,

    Excellent point. Hopefully, in the future, a judge wil take Alito’s definition and decide that a janitor or food server is not a minister.

  18. Religious denominations have been allowed to not ordain women and refuse to perform same-sex marriage. This decision does not surprise me. It’s sort of like the distinction between private schools and public schools.

    Private schools can get away with a lot more. And apparently will continue to do so.

  19. Religions and religious people get passes for things all the time in the U.S where others don’t. Like the pharamists who are able to not give out birth control if it conflicts with their religious beliefs, for example. I don’t belong to a religion so I can’t get off scot free for doing illegal things by saying “hey, it’s my religion!” I like smoking pot, but if I get arrested for it, I’m in trouble because it’s not a religious thing for me; I just like it.

    Pretty messed up in my opinion that our society is structured to encourage people who do things merely because it’s written down in some ancient book (or their pastor told them to do it) and punish people who do things because it’s what they genuinely like doing.

    I mean, take for example some asshole who won’t hire black people. This is always reprehensible. But I’d have more respect for someone who did this because they just really hated black people then someone who did it because their pastor told them not to mingle with black people. But in our society, we literally give extra special privileges to people for being obedient sheep.

  20. Hopefully, in the future, a judge wil take Alito’s definition and decide that a janitor or food server is not a minister.

    Except that it’s not a definition, Joe. The opinion is clear on the point that to endow the state with the power to define who is a minister would violate the Establishment clause. Alito’s words are a guideline at best, which individual judges will be free to interpret broadly.

    And I’m afraid I’m not as “hopeful” as you are. “Messenger…of its faith” is broad language which could be construed to encompass any employee who says “God Bless You” in reaction to a sneeze.

  21. Nell,

    I understand. Alito’s opion does give judges wide latitude and is just a guidline. But it does give plantiffs and judges a line of reasoning to make a distinction between an employee and a minister.

    I hope they are able to do it.

  22. One thing I don’t see mentioned in the comments or original post is that this particular employee, as a “called” teacher, had not completed standard, state-established training as a teacher. Instead, she had completed church-sponsored religious training that then qualified her to teach in this school.

    In some ways, this makes her situation worse, as she is not qualified to teach in a “regular” (i.e. non-church) school, but it does, in my thinking, allow her employer more leeway in defining her as a ministerial teacher rather that just plain teacher.

    I do think that this may cause additional problems down the line, but I don’t know that this decision isn’t legally defensible or possibly acceptable.

    Caveat: I’m not particularly inclined to believe the best of most religious organizations.

  23. Sadly, I’m not surprised to learn that this is in fact the law of the land. I learned last year while on the job market that a school can claim to be (and in fact BE) an Equal Opportunity Employer, AND receive federal funding, but still insist that all employees, from janitors to math teachers, be The Right Kind of Christian.

    I would not mind so much if (a) they weren’t permitted to claim EOE status in their job ads, and (b) they didn’t get federal funding. As I see it, if you want a religious exemption from federal labor laws regarding discrimination, then you shouldn’t get any federal funding, and you definitely shouldn’t be allowed to tell prospective employees that you’re non-discriminatory.

  24. One of the many, many reasons I am glad I am no longer Lutheran-Missouri Synod (or really, even Lutheran at all).

  25. The Supreme Court has set an important legal precedent that reinforces a church’s ability to set its own faith and mission without government interference, by allowing the organization to define the roles of its employees, and that the: “amount of time an employee spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed.”

    Justice Roberts also commented that the lower court’s ruling “placed too much emphasis on Perich’s performance of secular duties.”

    From the SCOTUS Blog (link below): “In this particular case, involving a parochial school teacher in Redford, Mich., who spent most of her work time on non-religious duties, the Court found these to be decisive factors: that she was formally commissioned or ordained as a “minister” in the Lutheran denomination’s internal practices, that she did perform “important religious functions” in addition to her teaching of lay subjects in the classroom, and that her non-religious duties, however extensive, did not make a difference. The Chief Justice said the Court was unsure whether any church employee would ever do exclusively religious chores.”
    Roberts also mentioned that this ruling doesn’t preclude any other employment discrimination lawsuits. “The Court stressed that it was ruling only on an employment discrimination claim, and thus did not address any other type of lawsuit by a church employee, including such possible claims as breach of contract or “tortious conduct” against an employee by a religious employer. Such issues can be judged when they arise, the Court concluded.”

    She was fired for being a poor minister of the church that made her one, and the Court decided not to interfere in this case. The Court was also careful to apply this only to hiring and firing of “ministers”, and acknowledges that: “It 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. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.” (http://www.supremecourt.gov/opinions/11pdf/10-553.pdf)

    Especially in the context of minority religions – many duties performed for a religious organization cannot be held at face value (ex: Sikhs consider feeding the needy and vulnerable a sacred duty and for temple-centric religions, the building of the temple is a sacred and ancient tradition, so the temple builders are held to a high standard, etc). This ruling is important for minority religions that tend to be more vulnerable to judicial encroachment. Many minority religions do not have the funding to deal with lawsuits, and that can seriously jeopardize their ability to function. (check out this Amicus Brief filed on behalf of some minority religions:
    http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_petitioneramcu5minorityrelgrps.authcheckdam.pdf )

    This case has set off a huge firestorm, and based on the comments, it seems people are more upset that a private organization has the power and authority to self-determine than they are celebrating that the Supreme Court has upheld the Establishment Clause. Anything involving autonomy of a church seems to set off a knee-jerk reaction that the ruling – however ultimately beneficial it may be – is crap.

    This is a win for religious freedom. Though THE CONTEXT TOTALLY SUCKS. Maybe we should direct our disgust to the institution with the disgusting practice.

    http://www.scotusblog.com/2012/01/opinion-recap-a-solid-ministerial-exception/

  26. I wouldn’t disagree with the decision as long as all churches lose their tax exempt status immediately.

    I don’t know, I think churches should be tax-exempt to the exact same degree that 501c(3)s are. If a church is providing a gathering space for a community, feeding the hungry, and visiting the sick, I have no problem with treating them just like any other charities. It’s when they engage in political activities that I think the IRS should step in.

    As to the broader issue, I think for any group receiving taxpayer funding (and a tax-exemption counts), the only pertinent question should be whether someone is able to perform their duties as an employee. There’s a pretty good case to be made that you can’t be a good Rabbi without being Jewish, and it makes sense to give a synagogue some latitude to define those concepts; if your Catholicism isn’t preventing you from mopping the floors or changing the light bulbs, then you shouldn’t be able to be fired for it.

    For private citizens, I’m much more leery about restrictions on why you can choose not to give someone money to do work. If I want to support the African-American community in my part of the city by specifically hiring a young black person to fix up my house, I should be able to do that.

  27. I do not think that Churches should be tax exempt at all, nor should there be special tax for religious items, that goes above and beyond taxes.

    If the Catholic Bishops or other church leaders want to lobby, vie for power, be heard in washington, they should be able to pay their taxes.

    Not to mention – I think that Tilthing should be made illegal, period. I have heard of some cases where it was so bad that people lost their houses, their apartments, their credit rating, refused to pay medical bills all because they put the best interest of their churches first.

  28. You guys, come on. If a Jedi Church found out their Janitor was a Sith Lord, they should be able to fire him, even if he’s not a minister, am I right?

  30. So you support the marginalization of Sith Lords. Nice.

    I think when a member of your sect is the head of state for the largest intergalactic nation in the galaxy, you no longer have the right to claim you’re being marginalized. You are furthering the attempts of the oppressors to appropriate the narrative and grievances of the oppressed, and I don’t think that has any place in a progressive community.

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