Battle for authority

By Kate Peifer Staff Writer peifer14@up.edu

On Oct. 5, the Supreme Court heard an important case examining the separation of church and state and whether teachers at religious schools can sue their employer under federal anti-discrimination laws if the teachers are considered "ministerial employees." The outcome of the case could potentially have an impact on all church-based institutions, including the University of Portland.

The Supreme Court will assess the limits of "ministerial exception," a doctrine that says the government cannot interfere in a church's management of "ministerial employees."

"The question is ‘Do teachers who teach secular subjects in a religious institution fall under the ministerial exception?'" political science professor William Curtis said.

According to Curtis, the Supreme Court has never examined this doctrine, which stems from the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

The case began in 2004 when Cheryl Perich, a "called teacher," who had the duties of leading prayer and worship as well as teaching several secular subjects and religion at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., was diagnosed with narcolepsy and took a leave of absence.

After receiving doctor's authorization, Perich hoped to resume her position at Hosanna-Tabor, but church officials were wary of her ability to continue working. They did not want to fire her replacement, so they asked Perich to resign.

When Perich threatened legal action, she was fired by church officials for violating church doctrine and charged her with "insubordination and disruptive behavior."

Perich filed a complaint with the Equal Employment Opportunity Commission (EEOC) using her rights under the Americans With Disabilities Act, but the district court sided with the church, declaring Perich a ministerial employee, prohibiting her from filing a lawsuit against Hosanna-Tabor.

In 2010, however, the U.S. Court of Appeals for the Sixth Circuit said Perich's duties and functions were determined to be primarily secular and reversed the district court's decision.

The amicus curiae, or "friend of the court," brief sent by the Council for Christian Colleges and Universities argued that if someone is employed as a teacher by a religious institution, he or she is expected to incorporate faith into his or her teaching.

"These institutions have a real commitment to integrating faith into the subjects they teach; the concept of faith is not a subterfuge to take advantage of the ministerial exception," the brief states.

More than 60 law and religion professors from various higher-education institutions have also submitted an amicus curiae brief explaining how the ministerial exception has the potential to deny civil rights to employees, according to The Chronicle of Higher Education.

As a religious institution, the University of Portland can invoke the ministerial exception, but the question remains: Which employees fall under that exception?

According to The Chronicle of Higher Education, The Supreme Court's ruling of either a broadened or narrower scope of church authority is expected to be issued by summer 2012.

Q&A with constitutional law professor William Curtis

For what reasons did the U.S. Court of Appeals side with Perich?

Because her duties were primarily teaching secular subjects and also that their (Hosanna-Tabor) contract says teachers do not have to be Lutheran, her primary function wasn't indoctrinated even though she did teach some religious classes. She spends six hours and 15 minutes out of seven hour days teaching secular subjects, not teaching religion, and they (U.S. Court of Appeals) said her primary function wasn't religious in the school.

What does this mean for religious institutions around the country?

If the courts rule who is a minister and who isn't, there are those who claim that is entanglement. If she wins, the employee, and one of the crucial details the court relies on is that the school, Hosanna-Tabor, didn't have a statement explicitly saying "Our teachers must bring the Lutheran message to all the subjects they teach," then what you'll see is religious educational institutions around the country quickly graphing a statement saying that.

What does this mean for UP?

Clearly we are teaching secular subjects, but there are people who would argue that nevertheless you are teaching in the context of the Catholic education and that somehow makes us different than professors teaching in secular education. So obviously in the UP context, the contentious question is whether it applies to faculty, and particularly faculty who teach "secular" subjects, which is most of us.

Would all the same laws apply to UP and other higher-educational institutions?

The Court has made a distinction between the levels of school in other contexts because primary and secondary education deal with students of different maturity and thus have different goals.  So the Court could conceivably, for example, reason that a teacher in a religious grade school, even one who teaches mainly "secular" subjects, has a much greater role and influence in indoctrinating students into the faith than does a college professor at a typical Catholic university - this might make a grade school teacher more likely to fall into the ministerial exception than a college professor.

What predictions can you make about the outcome of the case?

Even if Hosanna-Tabor wins and the Supreme Court grants religious institutions a broad ministerial exception, I doubt that the vast majority of religious universities would ever invoke exception in an employment dispute with "normal" faculty because that might result in making it difficult to hire faculty from the normal pool, which is what just about all of these universities depend upon.

If the Court rules in favor of...

... Hosanna-Tabor

If the Supreme Court rules in favor of Hosanna-Tabor, religious institutions will be exempted from possible liability and lawsuits filed by their employees. This creates the potential for employees at religious institutions to not receive compensation when discrimination occurs, according to The Chronicle of Higher Education.

"If the church wins, that means any religious institution could fire anybody and say it was a matter of our belief, and as one scholar put it, that creates a sort of ‘lawless zone' for church institutions to fire and hire however they want to," political science professor Bill Curtis said. "Of course some people say that's great and others would say you have to conform to the law."

...Perich

If the Supreme Court rules in favor of Perich, the anti-discrimination employment law would then apply to teachers in religious institutions teaching primarily secular subjects.

Political science professor Bill Curtis, predicts if the Supreme Court sides with Perich this will prompt religious institutions to take responsibility for explicitly defining who is and who is not a part of the ministerial exception.