Supreme Court justices question Obama administration's religious freedom arguments

Published: Wednesday, Oct. 5 2011 3:57 p.m. MDT

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WASHINGTON — Religious freedom was pitted against anti-discrimination law this morning as the Supreme Court heard oral arguments on what many call the most important religious freedom case in years.

At the heart of the case is deciding whether fired elementary school teacher Cheryl Perich was a minister or just a secular employee at a religious school. A secular employee can sue for discrimination. But a minister can't because of church-state separation issues.

University of Virginia law professor Douglas Laycock argued for the school that a person is a minister if they hold an ecclesiastical office in the church and have important religious functions, such as Perich had, teaching religious doctrine.

"If you teach the doctrines of the faith, you are a minister," Laycock said.

But Justice Ruth Bader Ginsburg said, "There was no difference in what (Perich) was doing" at the school as a lay teacher and what she did after she was voted in as a commissioned minister.

Chief Justice John Roberts told Laycock "different churches have different ideas about who's a minister. There are some churches who think all of our adherents are ministers of our faith," according to USA Today.

Roberts, however, was also hard on Walter Dellinger, who along with Assistant U.S. Solicitor General Leondra Kruger was arguing on behalf of Perich. Dellinger said Perich was not a minister because she performed not just religious duties, but also "important secular functions."

"That can't be the test," Roberts said according to Reuters. "The pope is a head of state carrying out secular functions, right? Those are important. So he is not a minister?"

The case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission began when Perich claimed she was fired by the small religious school in Redford, Mich., in retaliation for asserting her rights under the Americans with Disabilities Act. The thing that made the case tricky — and that eventually sent it up to the Supreme Court is that Perich was, under Lutheran doctrine, a commissioned minister or "called teacher." And under the First Amendment, courts have been reluctant to tell a religious group who their ministers should be — even if there might have been discrimination. That legal rule is called the ministerial exception.

Perich got sick in 2004 but tried to return to work from disability leave despite being diagnosed with narcolepsy. The school said she couldn't return because they had hired a substitute for that year. They fired her after she showed up and threatened to sue to get her job back.

Perich complained to the EEOC, which sued the church for violations under the disabilities act.

A federal judge threw out the lawsuit, saying that Perich fell under the ADA's ministerial exception, which keeps the government from interfering with church affairs. But the 6th U.S. Circuit Court of Appeals reinstated her lawsuit, saying Perich's "primary function was teaching secular subjects" so the exception didn't apply.

Constitutional scholar (and Deseret News Editorial Advisory Board member) Michael W. McConnell wrote in the Wall Street Journal on Tuesday how he thought the Obama administration's brief in the case invited the Supreme Court "to open a new front in the culture wars."

As McConnell described it, "The sole disagreement in the lower courts was whether her job was sufficiently religious to be considered ministerial. … But the Obama Justice Department has now asked the court to disavow the ministerial exception altogether. This would mean that, in every future case, a court — and not the church — would decide whether the church's reasons for firing or not hiring a minister were good enough."

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