The Supreme Court and the 'ministerial exception'

America’s religious institutions have long been able to stand apart from federal laws in the hiring and firing of employees crucial to their mission. Churches with male-only clergy, for example, can exercise that right to religious freedom despite the gender bias.

But on Wednesday, the Supreme Court will hear a case in which, for the first time, the justices could lay out rules for government to decide if a group’s theology and practices are out of step with laws that bar discrimination.

The case involves the dismissal of a fourth-grade teacher by a church-run Lutheran school after she took a leave of absence for a sleep disorder. Concerned about her condition to teach again, the church asked her to resign. She threatened to file a discrimination case under the Americans with Disabilities Act (ADA). The church then fired her, claiming she had violated church teachings on resolving resolve disputes internally with Christian principles.

A district court judge ruled against the teacher, Cheryl Perich, who was “called” by the church as a commissioned minister. But an appeals court found the Hosanna-Tabor Lutheran Church can be charged with retaliation under the ADA, claiming the teacher’s job was mostly secular – despite her duties to also teach the Bible and act as a Christian role model for students in teaching secular topics.

The high court is being asked to rule on the “ministerial exception,” a 40-year-old legal doctrine that allows religious groups to give “preference in employment to individuals of a particular religion” and to “require that all applicants and employees conform to the religious tenets of such organization.”

Deciding whether a church employee’s duties are secular as opposed to religious is a slippery slope for government to start down. In this case, the Obama Justice Department wants the court to narrowly define an exception only for workers whose jobs are “exclusively religious.” But even ordained ministers do work that is considered secular, such as filling out a church’s tax return.

The high court must avoid imposing overly intrusive ways for government to judge a faith’s internal workings in the name of the laws. And religious groups must find ways to honor a society’s interest in fairness without losing their basic tenets.

“It may not be easy, in every possible case, to trace the line of separation between the rights of religion and the Civil authority,” wrote James Madison, a primary author of the US Constitution. He also penned the Bill of Rights, which ensures free exercise of faith and bars government entanglement in religion.

Religions vary too much for courts to try to square employment laws with theology. As a recent federal court ruling on a church-state issue found: “It is in the nature of religion that persons outside a given faith will on occasion fail to understand or appreciate matters internal to that faith, and so will be inappropriately indifferent, suspicious, or even repelled and hostile to beliefs and practices central to that faith.”

In the case before the court, the justices are faced with deciding how much of the teacher’s work at the Christian school was religious. And the court may be inclined to troll the church’s biblical reasons for resolving internal disputes. Too many religious groups, especially small ones, may not be able to endure such legal scrutiny and the high costs of such federal lawsuits.

The court must, as it has previously stated, ensure that government “carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society.”