In our opinion: Important free exercise case

Published: Sunday, April 3 2011 12:00 a.m. MDT

This week the United States Supreme Court decided that it will hear arguments in what some observers are calling the most important religious freedom case in at least a decade. In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court will determine whether courts can interfere in a church's decision to choose its religious teachers. We believe churches, not courts, should decide who teaches doctrine.

In the recent past, many of the prominent church-state cases have focused on how religion affects public concerns, e.g., whether prayer is appropriate in a public gathering, whether the Ten Commandments can be displayed in a public building, whether a memorial cross is appropriate on public land, etc.

This case considers how far the regulatory apparatus of the state can intrude on a church's personnel decisions. Specifically, it considers whether the American with Disabilities Act (ADA), can be used to second-guess the decision of a church to hire or fire "ministerial" employees.

Hosanna-Tabor Evangelical Lutheran Church and School is a Michigan congregation. As part of its ministry, the congregation operates a religious school for children through the eighth grade. The school strives to reinforce biblical principles and teachings to provide a Christ-centered education.

In 2005, Hosanna-Tabor fired Cheryl Perich, who had been a "called teacher" and "commissioned minister," as defined by the church. The church claimed that she had violated Lutheran church teachings through insubordination and disruptive conduct. Perich, however, contended that she was discriminated and retaliated against because of narcolepsy. The EEOC brought suit against the church on behalf of Perich under the ADA.

Before examining the merits of the ADA claim, the federal district court summarily dismissed the case under what is now known as the "ministerial exception." The ministerial exception, derived from the First Amendment's free exercise clause, bars adjudication of disputes between religious organizations and ministers in recognition that religious organizations have the right to control their internal affairs.

On appeal, however, the Sixth Circuit U.S. Court of Appeals reversed, determining that the ministerial exception did not apply in this case because Ms. Perich's teaching duties were predominantly secular and therefore she did not qualify for the ministerial exception. Counsel for the church, including the Becket Fund for Religious Liberty, successfully sought review of this decision.

The ministerial exception, which keeps the courts out of controversies over religious authority, has been recognized as First Amendment doctrine by every federal appellate circuit court. Moreover, every federal appeals court has recognized that the exception applies to more than just those employees formally designated as ministers.

Nonetheless, there is significant conflict between the federal appellate courts regarding how far the exception extends and how it should be applied. What makes the Hosanna-Tabor case so important is that this will be the first time that the Supreme Court addresses the ministerial exception.

There are some technical legal issues that the Supreme Court should clarify as it considers this appeal. For example, is the ministerial exception a jurisdictional issue or an affirmative defense? We believe it is the former.

But more important are the fundamental principles involved. This is not, as some have claimed, an issue of churches being above the law. Rather it is a question of which institution is competent to make decisions about the authority and organization required for churches to meaningfully and freely practice their religion.

It is our contention that a secular court is simply incompetent to determine what constitutes faithful exercise of ministerial functions. A secular court, applying secular standards, is incompetent to determine what is meritorious in terms of qualifications and performance for those who play an important religious role within a church. Such decisions, consistent with our rights of religious freedom, are the domain of ecclesiastical organizations alone.

We trust that the justices of the Supreme Court have decided to take this case so that they can clarify and strengthen the constitutional right of churches to govern their practices and doctrine through a more uniform and expansive application of the ministerial exception. We look forward with cautious optimism to their review of this important case.

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