The Obama administration is arguing for the Supreme Court to violate a Christian church’s doctrine and subject a vast array of churches and ministries to the law of Mammon.
On Wednesday, the Supreme Court heard arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The case revolves around a teacher in the K-8 parochial school in Redford, Michigan, a hard-hit suburb of Detroit. (The school has since merged with another parochial school in Farmington Hills to become Concordia Lutheran School.) Cheryl Perich had been diagnosed with narcolepsy and given temporary leave. The school attempted to hold her job by combining three grades in one classroom for a semester, but when it became obvious she would be unable to return for an indeterminate period of time, the school moved to replace her. Adding to her problems, Perich did not file the required forms for her lengthy leave. In time, the school moved to end their relationship. The church laws of its sponsoring denomination — the Lutheran Church-Missouri Synod (LCMS) — require the case to be handled by church tribunal, but Perich balked, suing the church in secular court under the Americans with Disabilities Act (ADA).
The Obama administration’s EEOC joined the case against the church. It is joined by such legal and cultural left-wing stalwarts as the NAACP Legal Defense and Education Fund, People for the American Way, the Anti-Defamation League, and, unsurprisingly, the National Employment Lawyers Association, which sees this as a possible source of new clients (from ambulance chasers to processional chasers).
At the heart of the matter is whether the school is subject to the ADA. The church school contends Perich was a “commissioned minister,” and lower courts have allowed for a “ministerial exception” to federal anti-discrimination laws. The courts agree churches, in accordance with the First Amendment, should appoint their own clergy without the federal intervention, and many have extended this same right to employees the church considers part of its ministerial team. The Obama administration would like to change that.
The Obama administration’s brief states that the school was a “commercial” entity, because it charged tuition (although the school was subsidized by the church). Since the school “required all teachers — called or contract, Lutheran or not — to perform the same job duties,” it did not matter whether she was a lay teacher or a ministerial teacher. Perich “taught secular subjects,” the administration argues. She read “secular textbooks commonly used in public schools,” and can only remember injecting Christian teaching into her subject matter in “two instances.”
The church counters by showing just how important her ministerial role was. The school is not a stand-alone entity but a part of the Hosanna-Tabor Lutheran Church, another avenue of spreading the Gospel to schoolchildren. USA Today reported, Perich “taught math, social studies, music and other subjects, along with religion.” Although the plaintiff states that she used “secular textbooks,” the school’s brief reflects the reality in all parochial schools, that she “was required to integrate faith into secular subjects.” If she did this only twice, that may reflect on her faith or religious integration, not on the school’s mission.
Perhaps most compelling, though, is the role teachers played in the school’s religious life. Perich taught a half-hour religious course four days a week. She led morning devotions, prayed with her students three times a day, and led chapel services twice a year, which involved “selecting the liturgy, Scripture readings, and hymns to be sung, and delivering a short message of her own composition based on the Scripture readings.” Perich is a “called” teacher and thus considered a “commissioned minister” by the LCMS. However, she could not perform actions related to the Word and Sacrament in other settings.
The LCMS has a well-developed theology of service by “call” and the peaceful settlement of disputes between Christians. That doctrine requires all those called to the ministry to settle their differences with a church board as a condition of ministry. The government’s lawyer, Assistant to the U.S. Solicitor General Leondra R. Kruger, dismissed the teachings of the 1.8 million-member church, saying, “A particular religious doctrine is simply irrelevant.”
Instead, it wants churches subject to federal law, federal regulators, arbitration, and the threat of lawsuit.
Moreover, those joining the lawsuit argue the judiciary should be able to determine, at a minimum, when a religious reason is used as a pretext for firing a “minister” like Perich. Douglas Laycock, the University of Virginia Law professor who is representing the school, put his finger on the issue when he said, “To evaluate these discrimination claims, courts would have to decide whether this person was discharged for being a bad minister or not.” After all, how can a court decide the religious reason is a “pretext” unless it first evaluates the doctrine and whether the fired minister faithfully carried it out? That puts the hiring-and-firing or religious personnel in the hands of the State, not the Church. It would require every such lawsuit delve deeply into religious doctrine, which few judges understand or wish to learn (and may wish to eviscerate).
As if to confirm this, Lyle Denniston, who covered Wednesday’s oral arguments for the SCOTUS blog, wrote that during deliberations, “the Court was in the thick of talking religion as much as if this were a Vatican conclave among Cardinals.”
The government alleges it can undermine the Lutheran doctrine of reconciliation of the ministry without doing away with the Catholic (and LCMS) doctrine of an all-male priesthood. In fact, it would make place church workers in the ranks of those who could take advantage of the full range of litigious “anti-discrimination” laws. Laycock notes that some of those on the other side “do not deny that they would open the door to class actions alleging disparate impact and statistical underrepresentation.”
That is, an Affirmative Action minister may be coming to your church.
There is also the question of the hollowed out “ministerial exemption” the administration observes. The EEOC would like the exception struck as a binding rule and each case of a fired “minister” adjudicated separately. However, it argues that if the Supreme Court maintains the ministerial exemption, it should apply only to church officials “who perform exclusively religious functions and whose claims concern their entitlement to occupy or retain their ecclesiastical office.”
The only trouble is, there is no such thing. No minister, from the local pastor to the Archbishop of Canterbury, performs “exclusively religious” functions. Actions as mundane as cleaning the church, driving the youth group to a retreat, or examining the church’s books could be construed as more than simply religious. Chief Justice John Roberts observed during Wednesday’s arguments, “The pope is a head of state carrying out secular functions…So he is not a minister?”
A ruling is not likely until next spring or summer. The question of how the court will rule — particularly the newest justice, Elena Kagan — is less important than precisely why the Obama administration is pushing this change so aggressively. Carrie Severino, chief counsel and policy director for the Judicial Crisis Network, has analyzed, “What the Obama administration is doing here today is another step in its full-frontal assault on religious rights.”
“We see them attacking the Conscience Clause. And here we see them attacking the rights of religious organizations to even choose their own ministers,” she continued.
“If you don’t have the right to choose your own minister, religious freedom doesn’t mean very much,” she said.
Obama is giddy that his administration is requiring all private health insurance plans — including those of Catholic institutions like the Franciscan University of Steubenville — to subsidize contraception and sterilization, a violation of Catholic doctrine. What can one expect if “a particular religious doctrine is simply irrelevant”?
Religious institutions are exempt from this requirement only if they meet the excessively narrow criteria approved by the government. According to the Dept. of Health and Human Services, they include:
A religious employer is one that: (1) has the inculcation of religious values as its purpose; (2) primarily employs persons who share its religious tenets; (3) primarily serves persons who share its religious tenets; and (4) is a non-profit organization under Internal Revenue Code section 6033(a)(1) and section 6033(a)(3)(A)(i) or (iii). 45 C.F.R. §147.130(a)(1)(iv)(B).
And that is precisely the point. The administration wants to confine the Church, the Christian religion, and its adherents to the smallest, darkest corner of society and lock them there. Meanwhile, the whole of society including its religious members will come under the domination of the Messianic State, which displaces their beliefs with the morality it necessarily imposes without and within. It attempts, in William F. Buckley Jr.‘s phrase, to “immanentize the eschaton.” It can even appoint, or at least refuse them the right to depose, essential religious personnel.
That right discredits religion from within. Perich broke the Lutheran church’s doctrine of reconciliation within the ministry but originally sought reinstatement as a commissioned-minister. Laycock writes in his brief, “a minister who publicly violates church teaching destroys her credibility and becomes ineffective.” Is that the Obama administration’s final objective, to render all church ministers ineffective and meaningless?