Tuesday, January 17, 2012

Religious Freedom Ruling a Land Mine for Equal Rights

      A school fires a teacher when she tries to return to her job after having taken a medical leave for a doctor-diagnosed disability. That sounds like a violation of the federal Americans With Disabilities Act, which requires employers to make “reasonable accommodations” for individuals with physical or mental disabilities.
      Apparently not, however, if the school is church-sponsored and the elementary-grade teacher’s duties include presiding over daily religious exercises. At least, that is the import of the Supreme Court’s unanimous decision last week [Jan. 12] recognizing a “ministerial exception” for religious organizations to anti-discrimination laws.
      The court’s decision in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission is being hailed as the most important religious freedom ruling in decades. But the ruling, written in freedom-triumphant language by Chief Justice John G. Roberts Jr., is also a potential land mine for civil rights, overly deferential to religious groups and highly susceptible to abuse.
      The case began in January 2005 after Cheryl Perich asked to return to her job at a small, K-8 school in Redford, Mich., run by the Hosanna-Tabor Evangelical Lutheran Church. Perich had taught there since 1999 — satisfactorily, it appears. But she took a medical leave after falling ill in June 2004 with what was later diagnosed as narcolepsy, a disabling condition characterized, as the court later put it, by “sudden and deep sleeps from which she could not be aroused.”
      By January 2005, Perich felt well enough to return to work. When she notified principal Stacey Hoeft of her plan, however, she was told that the school had hired a lay teacher for the position. Hoeft also expressed concern that Perich was not ready to return to the classroom. School administrators told the church congregation of the decision a few days later, and the congregation voted to offer Perich a “peaceful release” from the job (and partial health benefits) if she would resign.
      Perich refused to resign and instead reported to the school on Feb. 22, armed with a letter from her doctor clearing her for work. Hoeft told her to leave; Perich first asked for documentation that she had shown up ready to teach. Hoeft called Perich that afternoon to say she would likely be fired. Perich told Hoeft she had consulted with a lawyer. The school board voted the next day to reconsider Perich’s employment because of her “regrettable” actions. Two months later, the congregation formally voted to fire Perich based on “insubordination and disruptive behavior” and the damage she had done to the “working relationship” by “threatening to take legal action.”
      The Equal Employment Opportunity Commission (EEOC) took up Perich’s case and sued for reinstatement and back pay. The church responded by claiming a religious-based exemption. Perich, a Lutheran, had sought and accepted the church’s “call” to her position and designation as a “commissioned minister,” the church noted. She taught a religion class and also led her class in daily prayer and devotional exercises.
      The federal district court judge ruled for the church, but the Sixth U.S. Circuit Court of Appeals disagreed. The appeals court recognized a ministerial exception, but said it did not apply to Perich’s case because her duties were substantially the same as those for the school’s lay teachers.
      Given the unanimity in lower courts, the Supreme Court’s decision to recognize a ministerial exception was perhaps unsurprising. “The Establishment Clause prevents the Government from appointing ministers,” Roberts wrote, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” He went on to credit the church’s contention that Perich was the equivalent of a minister. Perich’s specifically religious duties may have been minimal, Roberts said, but the issue “is not one that can be resolved by a stopwatch.”
      The multifactor test outlined by Roberts stops short of the church’s view, adopted in a concurrence by Justice Clarence Thomas, that courts should simply defer to a religious group’s view of the ministerial nature of a position. Still, the ruling gives parochial schools plenty of room to define teachers’ roles broadly and leave them outside the protection of civil rights laws.
      Most troublingly, the Supreme Court accepted Hosanna-Tabor’s depiction of its dispute with Perich as based on church doctrine. The back and forth between Perich and school authorities was the ordinary stuff of civil rights law: an employer reluctant to follow the law who retaliates after the employee’s resort to legal action. Not until the case went to court did Hosanna-Tabor begin arguing that devout Lutherans do not go to court, but settle any disputes within the church.
      In its briefs, the government argued that religious groups cannot be allowed to opt out of the secular legal system. Religious organizations that deal with sexual abuse by clergy darkly warned that a ruling for Hosanna-Tabor would allow religious organizations — think, the Roman Catholic Church — to retaliate against internal whistleblowers. Roberts said the court could deal with cases like that “if and when they arise.”
      Roberts rightly trumpets the nation’s commitment to religious freedom, but the court in other cases has been more nuanced in protecting it. Today, the nation is equally committed to protecting equal rights. Cheryl Perich may rightly wonder whether a better accommodation of the two could have been found in her case.