Court hears Hosanna-Tabor case Oct. 5

The United States Supreme Court will hear one of the most important church-state First Amendment cases in many years at 10 a.m., Oct. 5.

The case involves an LCMS congregation and school and an LCMS commissioned minister who taught at the school.

The case, “Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission,” centers on an employment dispute between Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., and Cheryl Perich, dismissed in 2005 for “insubordination and disruptive conduct in violation of church teaching,” according to Hosanna-Tabor’s brief filed with the Supreme Court.

Perich sued the congregation for disability discrimination, claiming the church rescinded her call as a commissioned minister because of her narcolepsy, a sleep disorder that typically causes excessive daytime sleepiness. The teacher later dropped her discrimination claim and now says only that the church retaliated against her for making the original claim.

A federal district court dismissed the case based on the “ministerial exception,” a First Amendment doctrine that bars lawsuits that would interfere in the relationship between a religious organization and employees who perform religious functions.

But the United States Court of Appeals for the Sixth Circuit reversed the district court and ruled in favor of Perich, holding that the teacher had a predominantly “secular” role because she spent more time each day teaching secular subjects than religious ones.

The key question in the case, according to the Becket Fund for Religious Liberty, which is co-counsel representing Hosanna-Tabor, “is whether the government can force the church to reinstate Perich or whether the First Amendment instead protects the church’s right to select its religious teachers.”

Lead counsel in the case is Professor Douglas Laycock of the University of Virginia School of Law, a leading scholar and Supreme Court practitioner in the area of religious liberty. Laycock says Perich should be subject to the ministerial exception.

“She taught the religion class. She led the prayers. She led the devotionals, which are acts of worship,” he said in a statement earlier this year. “She was a commissioned minister teaching religion and leading worship. The fact that she also taught math and reading doesn’t change any of that.”

The Synod has filed an Amicus Curiae (“Friend of the Court”) brief in the case. In it, the Synod explains to the court that the hallmark of the LCMS is “steadfast adherence to orthodox Lutheran theology” and that the Synod “places great importance on the Christian education of its children and on introducing other children of willing parents to the Gospel of Jesus Christ.”

In its brief, the Synod also emphasizes that, like many Christian denominations, the LCMS “fervently believes in a divinely established ministerium in which individual ministers are first called by God and then ordained by the church to do God’s work.”

The brief also notes that, in accordance with Synod policy, Perich was obligated to seek satisfaction through the church body’s dispute-resolution process rather than taking Hosanna-Tabor to court.

Some 30 religious organizations, including the United States Conference of Catholic Bishops, the American Jewish Committee and the Southern Baptist Convention, have filed or co-filed Amicus Curiae briefs endorsing the position of Hosanna-Tabor. The American Civil Liberties Union has co-written a brief supporting the decision of the Court of Appeals. People for the American Way and others also have filed briefs in support of Perich and the ruling by the Court of Appeals.

For more information about the case, visit the University of Virginia School of Law website or The Becket Fund website.

Posted Oct. 4, 2011