Secular Law

The Supreme Court has been trying to define the contours of the Establishment Clause since Everson v. Board of Education in 1947.  In a case of first impression, the Court recently heard oral arguments  in a case that is expected to determine whether the clause mandates there be a “ministerial exception” to the anti-retaliation provision of the Americans for Disability Act (ADA). 

Sitting in the bar section of the courtroom, it seemed to me that the nine justices are very divided on the exception created by appellate courts over the last forty years ago.

In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, an elementary school by the name of Cheryl Perich took a medical leave of absence.  Hosanna-Tabor refused to reinstate Perich upon her doctor clearing her to return to teaching.  The school most likely fired Perich because it had hired a replacement teacher.  However, the school subsequently argued that it fired Perich because she threatened to complain to the EEOC rather than to the Lutheran synod.

Douglas Laycock, attorney for Hosanna-Tabor, argued that the ministerial exception gives the church-school the unreviewable right to determine its “ministers,” including whom to hire and fire. After taking some religious training, Hosanna-Tabor classified Cheryl Perich as a “commissioned minister.” She taught secular subjects but was also assigned religious duties, including leading her students in prayer.

I offer these comments based on oral arguments and my familiarity with the case:

First, after reading David Barton’s Original Intent this summer and his view that the principle of separation of church and state is not “found in the Constitution,” it was refreshing to hear Hosanna-Tabor’s attorney base his argument in support of a ministerial exception on the principle. (I guess the principle comes in handy when it’s beneficial to the church.) Equally refreshing was a conversation I had with a senior attorney from the Christian Legal Society in which she also recognized the principle of separation of church as being embodied in the First Amendment. Long live my heroes Thomas Jefferson and James Madison!

Second, and where I would part from Laycock is his argument that the ministerial exception is categorical, that is, government is not permitted under any circumstances to interfere with a church’s firing of any employee that it calls a minister.  When asked by Justice Sotomajor to  define “minister,” Laycock gave this definition of minister: “a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously including teaching of the faith.” (Tr. 55)  The “important religious functions” criteria is likely to be too broad for some of the justices to swallow.

Because of the rigidity of his application of the ministerial exception and perhaps his broad definition of minister, Laycock was forced to back off a bit for situations involving ministers abusing children and violating OSHA (safety) regulations. The obvious question, then, is why shouldn’t Hosanna-Tabor have to comply with the non-retaliation provisions of the ADA?

Third, I was intrigued by the variety of strong arguments advanced by the Department of Justice’s and Perich’s attorneys – Leondra R. Kruger and Walter Dellinger, respectively.  They argued that the ministerial exception, even if it exists, doesn’t apply to the present case because: (1) Hosanna-Tabor holds itself out to provide a service to the public (i.e., educate youth which the DoJ attorney argued is a governmental function), (2) the ADA is a neutral law of general applicability (Employment Division v. Smith (1990)), (3) protecting employees from retaliation is a “compelling governmental interest,” (4) the church’s tenet that employment disputes should be resolved internally is not a core religious tenet of the Lutheran church and (5) Perich was not fired because of anything that she taught to her students. 

The Court could get bogged down in an effort to define the term minister in which case it could send Establishment Clause jurisprudence into deeper chaos. Or, it might find that enforcement of the anti-retaliation provisions of the ADA – in this case – would not excessively entangle government in church matters (i.e., the third prong of the Lemon test).

Bob Ritter / JM Center