High court: Bias laws don't apply to churches

  • Article by: ADAM LIPTAK
  • New York Times
  • January 11, 2012 - 9:34 PM


WASHINGTON - In what may be its most significant religious liberty decision in two decades, the Supreme Court on Wednesday for the first time recognized an exception to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

"The interest of society in the enforcement of employment discrimination statutes is undoubtedly important," Chief Justice John Roberts wrote in a decision that was surprising in both its sweep and its unanimity. "But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission."

The decision gave only limited guidance about how courts should decide who counts as a minister, saying the court was "reluctant to adopt a rigid formula." Two concurring opinions offered contrasting proposals.

Whatever its precise scope, the ruling will have consequences for countless people employed by religious groups to perform religious work. In addition to ministers, priests, rabbis and other religious leaders, the decision appears to encompass, for instance, at least those teachers in religious schools with formal religious training who are charged with instructing students about religious matters.

Douglas Laycock, a law professor at the University of Virginia who argued the case on behalf of the school, said the upshot was likely to be that "substantial religious instruction is going to be enough."

Asked about professors at such Catholic universities as Notre Dame, Laycock said: "If he teaches theology, he's covered. If he teaches English or physics or some clearly secular subjects, he is clearly not covered."

The case 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. She said she was fired for pursuing an employment-discrimination claim based on a disability, narcolepsy.

Perich had taught mostly secular subjects but also taught religion classes and attended chapel with her class. "The issue before us, however, is not one that can be resolved with a stopwatch," Roberts wrote.

Instead, the court looked to several factors. 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 doctrine by pursuing litigation rather than trying to resolve her dispute within the church.

Roberts devoted several pages of his opinion to a history of religious freedom, concluding that an animating principle behind the First Amendment's religious liberty clauses was to prohibit government interference in the internal affairs of religious groups generally and in their selection of their leaders in particular.

The decision was a major victory for a broad swath of national religious denominations who had warned that the case was a threat to their First Amendment rights and their autonomy to decide whom to hire and fire. Some religious leaders had said they considered it the most important religious freedom case to go to the Supreme Court in decades.

Many religious groups were outraged when the Obama administration argued in support of Perich, saying this was evidence that the administration was hostile to historically protected religious liberties.

The administration had told the justices that their analysis of Perich's case should be essentially the same whether she had been employed by a church, a labor union, a social club or any other group with free-association rights under the First Amendment. That position was soundly rejected in Wednesday's decision.

"That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations," Roberts wrote. "We cannot accept the remarkable view that the religion clauses have nothing to say about a religious organization's freedom to select its own ministers."

Requiring Perich to be reinstated "would have plainly violated the church's freedom," Roberts wrote. And so would awarding her money, he said, as that "would operate as a penalty on the church for terminating an unwanted minister."

In a concurrence, Justice Clarence 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.

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