By David Strand
In coming months the U.S. Supreme Court will hand down a decision potentially having a profound effect on the freedom of churches to select and dismiss their ministers and other religious leaders without governmental interference.
The decision could alter the very meaning of “minister” if it holds that courts have the right to decide who is a minister, rather than the church. And even if 
the Supreme Court accepts the definition of “minister” to include ordained clergy, it could rule that courts can and should decide if other kinds of religious leaders are ministers — including ecclesiastical officers and commissioned ministers, such as schoolteachers in The Lutheran Church–Missouri Synod.
Several pundits have called this case the most important First Amendment religious question to come before the High Court in decades.
The question turns on the so-called ministerial exception, a First Amendment doctrine of some 40 years standing that allows religious organizations to make their own judgments on the fitness for ministry and employment status of ministers and exempts them from being drawn into civil actions or courts when a worker brings a complaint.
The case, titled Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, Et Al., centers on Cheryl Perich, formerly a commissioned-minister teacher at the now-closed Redford, Mich., Hosanna-Tabor school. Hosanna-Tabor is an LCMS congregation.
In March 2000, Perich received a call to teach at Hosanna-Tabor. In June 2004, she was diagnosed with narcolepsy, a disorder causing sudden, deep sleeps. She went on leave to seek treatment and announced — several times over succeeding months — different dates for her expected return, but those dates passed.
During the first semester of Perich’s absence, the school tried to keep her job open by combining three grades into one classroom, but school parents found this unsatisfactory.
Finally, in January 2005, the school hired a replacement for the spring semester.
When Perich offered still other estimates for her return, the school’s principal, Stacy Hoeft, asked if she would be ready to come back by the start of the next school year. It would be hard to bring Perich back before then because of contractual obligations with the replacement.
The situation remained vague until, in the words of the “Brief for the Petitioner” (Hosanna-Tabor) submitted to the Supreme Court, “On Jan. 30 [2005], foreseeing no early end to Perich’s inability to work, the congregation voted to ask Perich for a ‘peaceful release from her call.’ ”
A week later, having rebuffed this request, Perich announced her return date as Feb. 22. Again, school officials explained why the start of the next school year would be the earliest-possible date for her return. They also “expressed concern about the children’s safety,” according to the petitioner’s brief, because Perich had continued to tell her doctor about “sleep symptoms” and “a lot of problems.”
On Feb. 22, Perich appeared at the school and told Hoeft she would sue Hosanna-Tabor if she was not reinstated. When the principal reminded Perich that suing the church would violate LCMS policy (all called workers in the Synod with complaints against their church employer are required to use the Synod’s dispute-resolution process rather than going to court), Perich repeated her intention.
The school board chairman wrote to Perich that night, saying her threat indicated an intent “not to return to work, but rather to create upheaval at our school.”
About a month later, owing to what the school board felt was Perich’s “insubordination and disruptive behavior” and Perich’s “threatening to take legal action” against the church and school, the board recommended that the congregation rescind Perich’s call. The congregation voted 40-11 to do so.
Perich took her complaint against Hosanna-Tabor to U.S. District Court. Both she and the Equal Employment Opportunity Commission (EEOC) charged the school with “retaliation” for firing Perich over her threat to sue. The court found for Hosanna-Tabor, upholding the latter’s argument that the ministerial exception gave it the right to deal with its called workers as it saw fit. The court said it could not adjudicate Perich’s claim without “exploration of religious doctrine in violation of the First Amendment.”
The case was appealed to the Sixth Circuit U.S. Court of Appeals, which reversed the District Court’s ruling on the reasoning that an employee falls within the ministerial exception only if the employee’s “primary” duties are religious. Hosanna-Tabor’s Supreme Court brief would call this decision “mechanistic,” saying the Sixth Circuit literally had tallied up the minutes in Perich’s day “in columns labeled ‘secular’ and ‘religious,’ and compare[ed] the totals.”
Even though Perich indeed had spent more time teaching “secular” subjects than religious ones, the Sixth Circuit, according to Hosanna-Tabor counsel, had shown no appreciation for the fact that (1) “Perich taught religion classes, led worship, and led prayer”; (2) she “served as a Christian role model” and, in keeping with Lutheran teaching, “was expected to integrate faith into all subjects”; and (3) she “occupied ecclesiastical office as a commissioned minister.” She was, they said, the school’s “primary instrument for communicating the faith to her students.”
Fewer than 1 percent of petitioners seeking certiorari (the right for an appeal to be heard) from the U.S. Supreme Court get it, but in March of this year the Court agreed to hear Hosanna-Tabor v. EEOC, et al. Oral arguments took place in a crowded courtroom Oct. 5.
Restating the gist of the ministerial exception, Douglas Laycock, professor at the University of Virginia School of Law and lead counsel for Hosanna-Tabor, opened by saying: “[C]hurches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church. That’s a bedrock principle, and these Respondents [EEOC, et al] would repudiate it.”
Almost immediately Justice Sotomayor interjected, asking Laycock if the exception should apply across the board, such as in cases of suspected child sexual abuse or when a church uses an illegal substance — peyote was mentioned — as part of a religious rite. Would Perich have been free to report such things to civil authorities?
Laycock said that in such extreme examples the exception likely would be abridged. But this is far removed, he said, from the case at hand — from the government telling churches “what criteria they should apply [to] … selecting and removing ministers.”
Justice Alito asked Laycock if he knew of many cases “in which ministers have been fired for reporting criminal violations,” to which Laycock said he knew of “only two” that even remotely approached such circumstances.
(Lawyers arguing before the Supreme Court are strongly advised not to restate the facts of their cases; the justices already know them. Rather, they are given just 30 minutes per side to summarize and highlight the strongest points in their briefs, and they had better be able to think on their feet when the justices interrupt them.)
Justice Kennedy wondered why Perich, in a case of alleged retaliation, couldn’t get a hearing. “She could have had a hearing,” said Laycock. She could have had a hearing “in the Synod before decision-makers” in the church’s dispute-resolution process, a venue wholly independent from Hosanna-Tabor. Indeed, the Synod’s Bylaws insist that ordained and commissioned ministers seek redress for complaints internally, within dispute-resolution, rather than taking matters to court. Perich “could have gone to the Synod,” Laycock said. “She wasn’t cut off from that. She decided not to.”
Justice Breyer suggested that perhaps Perich wasn’t aware of the requirement to use the church’s dispute-resolution process. Maybe she didn’t know about such “religious tenets.” “I didn’t [know about them],” Breyer said, “until I read the very excellent [amicus] brief filed by the Lutherans [LCMS] that explained the nature of taking … suits [to court].” Did anyone mention this to Perich?, he asked.
“Indeed,” said Laycock, later adding, “She knew about this rule.” (To read the Synod’s amicus brief, go to www.lcms.org/amicus.) Perich was “a lifelong Lutheran,” Laycock explained. “She worked 11 years in Lutheran schools. She [took] eight theology courses [as part of the process for becoming a commissioned minister in the Synod]. [It is] simply not cre
dible that she didn’t know about this doctrine.”
Also noteworthy concerning the question by Justice Breyer is the deposition testimony of Hoeft, Hosanna-Tabor’s school principal, in which she recounts her conversation with Perich on Feb. 22, 2005, regarding the conflict-resolution policy of the Synod. This testimony can be found on Pages 152-156 of the Joint Appendix filed with the Supreme Court.
In the LCMS, when commissioned ministers are ready for placement, they declare their intention to join the Synod as “members” and to live by its Constitution. The Constitution, in turn, recognizes the Bylaws of the Synod as binding regulations for its members, including the bylaw requiring use of the Synod’s procedures for reconciliation and dispute resolution. If there is a dispute involving a member’s call or termination of that call, the Synod’s conflict-resolution procedures are to be followed.
“It’s sobering that a relatively quiet and local dispute should not only find its way to the Supreme Court but also carry such potential for adverse effect upon the work of the church,” said Synod Secretary Rev. Dr. Raymond Hartwig. “To me it lends serious weight to our Synod’s bylaw declaring our dispute-resolution process to be the exclusive and final remedy when disputes arise among us. Our reconciliation process keeps our disputes within the brotherhood where they belong, according to 1 Corinthians 6.”
A sizable portion of the oral arguments was taken up with discussion on what constitutes a “minister.” Again, this case was propelled to the Supreme Court by the Sixth Circuit’s saying, essentially, that Perich really wasn’t a minister because she spent more time during the school day teaching “secular” subjects as opposed to engaging in overtly religious activities.
To the point of this “primary test,” Justice Ginsburg asked Laycock, “You would say the extent of her religious duties [doesn’t] matter; what counts is that she is commissioned as a minister.”
If the Synod saw fit to commission her as a minister, Laycock replied, “then we think that makes her a minister. If you have a Jesuit teaching physics, we think he is still a priest, and he is still controlled by the ministerial exception.”
Later, when Perich’s lawyer, Walter Dellinger, former acting Solicitor General of the United States, disputed this assessment — saying that Perich “was not a minister, and the principal reason is she carried out such important secular functions in addition to her religious duties” — Chief Justice Roberts disagreed. “I’m sorry to interrupt you,” the Chief Justice said, “but that can’t be the test. The pope is a head of state carrying out secular functions, right? Those are important. So he is not a minister?”
“[T]hat term [‘minister’] is a legal term,” said Justice Scalia. “What constitutes a minister is … decided by the law, not the church, right?”
“That is correct,” said Laycock.
“But … with a lot of deference to the church’s understanding of whether someone is a minister,” added Justice Alito.
“We think … if you teach the doctrines of faith, if that is per your job responsibilities … you’re a minister,” said Laycock.
Leondra Kruger, assistant to the U.S. Solicitor General, argued on behalf of the EEOC. Early in her presentation, Chief Justice Roberts asked, “Is there anything special about the fact that the people involved in this case are part of a religious organization?”
Kruger said the “basic contours” of the case are “not different” from any other case involving an “expressive association,” such as a labor-rights group.
“That’s extraordinary!” Justice Scalia exclaimed. “That is extraordinary! We are talking here about the [First Amendment’s] Free Exercise Clause and about the Establishment Clause, and you say they have no special application?”
“[W]e don’t think that the job duties of a particular religious employee in an organization are relevant to the inquiry,” said Kruger.
“[B]ut there,” said Justice Scalia, “black on white in the text of the Constitution are special protections for religion. And you say that makes no difference?”
Kruger explained that the government’s goal was to ensure a “balance of interests.” There may be a place for the ministerial exception, she said, but it’s also possible for the government to apply anti-retaliation laws to a religious employer without that being tantamount to the government’s dictating who a church’s ministers will be. We are trying to prevent religious employers, she said, “like any other employers, from punishing their employees for threatening to bring illegal conduct to the attention of [civil authorities].”
Justice Breyer posed a hypothetical question: “Suppose you have a religion and the central tenet is, ‘You have a problem with what we do, go to the Synod; don’t go to court.’ And that applies to civil actions of all kinds. … So would that not be protected by the First Amendment?”
“It’s not protected,” said Kruger.
She went on to say the government has no interest, for example, in accusing the Roman Catholic Church of sexual discrimination for its ban on female priests. “But the interests in this case are quite different,” she said. “The government has a compelling interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.”
Justice Alito said he couldn’t reconcile her position on this. It seems to me, he said, “that you think that the Catholic doctrine [against female clergy] is older, stronger, and entitled to more respect than the Lutheran doctrine [agains
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