The Court's decision, which was decided with the assent of the Court's
four supposed moderates - Justices Breyer, Ginsburg, Sotomayor and
Kagan - should send a chilling message to every American citizen who is
concerned about the rule of civil law. As the record before the Court
showed that Hosanna-Tabor Evangelical Lutheran Church and School
purports to offer a "Christ centered education" to students in
kindergarten through eighth grade. The Lutheran Synod to which this
church and school belonged divided its parochial school teachers into
two categories: "called" and "lay."
"Called" teachers
are described as practicing Lutherans who are believed to have been
summoned by God, through the congregation to which they belong, to
pursue their vocation. These teachers are required to take a course of
theological study, receive the endorsement of their local Synod
district, and pass an oral examination by a faculty committee. A teacher
who has then satisfied these requirements may be called by a
congregation. Once called, a teacher receives the formal title "Minister
of Religion, Commissioned." A "commissioned minister" enjoys a status
analogous to tenure: At Hosanna-Tabor, a call could be rescinded only
for cause and by a vote of a super majority of the congregation.
As reflected in the record before the Court, "lay" or "contract"
teachers are not required to be trained by the Synod or even to be
Lutheran. At Hosanna-Tabor, lay teachers were appointed by the school
board, without a vote of the congregation, to one-year renewable terms.
Although teachers at the school generally performed the same duties
regardless of whether they were lay or called, lay teachers were hired
only when called teachers were unavailable.
Cheryl Perich
was initially employed by Hosanna-Tabor as a lay teacher in 1999. Later
that school year, Hosanna-Tabor asked her to become a called teacher.
Perich accepted the "call" and completed the requirements that enabled
her to become a commissioned minister. She taught kindergarten during
her first four years at Hosanna-Tabor and fourth grade during the
2003-2004 school year. She also taught math, language arts, social
studies, science, gym, art, and music. In addition to these purely
secular teaching duties, Ms. Perich taught one religion class four days a
week, led the students in prayer each day as almost all parochial
school teachers do, and once a week attended a weekly school-wide chapel
service with other teachers and pupils. About twice a year, Perich is
reported to have led the chapel service herself.
In
2004, Perich became ill in June 2004 and was eventually diagnosed with
narcolepsy. Because of her illness, Perich began the 2004-2005 school
year on disability leave. At the beginning of January, 2005, however,
Perich notified the school principal, that she would be able to report
to work the following month. The principal replied that the school had
already contracted with a lay teacher to fill Perich's position for the
remainder of the school year.
Perich refused to resign
her position as a called teacher in exchange for an offer by the
congregation to pay a portion of her health insurance premiums. On the
morning of February 22, 2005, after she was medically cleared to return
to work, Perich reported to school. The principal asked her to leave
but she would not do so until she obtained written documentation that
she had reported to work. Later that afternoon, the principal called
Perich at home and told her that she would likely be fired. Perich
responded that she had spoken with an attorney and intended to assert
her legal rights.
Following a school board meeting that
evening, the chairman of school board sent Perich a letter in which he
stated that Hosanna-Tabor was reviewing the process for rescinding her
call in light of her "regrettable" actions. He subsequently wrote with a
second letter in which he advised Perich that the congregation would
consider whether to rescind her call at its next meeting. As grounds for
termination, the letter cited Perich's "insubordination and disruptive
behavior" on February 22, 2005 as well as the damage she had done to
her "working relationship" with the school by "threatening to take legal
action." The congregation then voted to rescind Perich's call on April
10, and Hosanna-Tabor sent her a letter of termination the next day.
In response, Perich filed a charge with the Equal Employment
Opportunity Commission, in which she alleged that she had been
discharged from employment in violation of the Americans with
Disabilities Act, 42 U. S. C. §12101- et seq., and that she had been
unlawfully retaliated against by her employer because she had opposed
acts and practices declared unlawful by act under §12203(a) of the
Americans with Disabilities Act .
Enacted in 1990 by the
United Stated Congress, the Americans with Disabilities Act declares the
purpose of the statute to be four-fold: "(1) to provide a clear and
comprehensive national mandate for the elimination of discrimination
against individuals with disabilities; (2) to provide clear, strong,
consistent, enforceable standards addressing discrimination against
individuals with disabilities; (3) to ensure that the Federal Government
plays a central role in enforcing the standards established in this
chapter on behalf of individuals with disabilities; and (4) to invoke
the sweep of congressional authority, including the power to enforce the
fourteenth amendment and to regulate commerce, in order to address the
major areas of discrimination faced day-to-day by people with
disabilities." See § 12101. Findings and purpose.
The EEOC subsequently brought suit against Hosanna-Tabor in United
States District Court Michigan based upon its determination that Perich
had been fired in retaliation for threatening to file an ADA lawsuit
and Perich intervened in that litigation. During the proceedings Hosanna-Tabor filed a motion for summary judgment under Federal Rule of
Civil Procedure 56 in which it alleged that only disputed issues of law,
not fact, existed and that the Court should decide , as a matter of
law, that the "ministerial exception" under the First Amendment barred
the suit because the claims at issue were solely related to the
employment relationship between the religious institution and Perich
who, as a minister, had been fired for a religious reason- viz, that
her threat to sue the Church violated the Synod's belief that Christians
should resolve their disputes internally.
The District
Court entered summary judgment in Hosanna-Tabor's favor and held that
"Hosanna-Tabor treated Perich like a minister and held her out to the
world as such long before this litigation began," and that the "facts
surrounding Perich's employment in a religious school with a sectarian
mission" supported the Church's characterization. In light of that
determination, the court concluded that it could "inquire no further
into her claims of retaliation."
The Court of Appeals for
the Sixth Circuit vacated and remanded, and directed the District Court
to proceed to the merits of Perich's retaliation claims. Upon review,
the Court of Appeals concluded that Perich did not qualify as a
"minister" under the "ministerial exception," because her duties as a
called teacher were identical to the duties of lay teachers.
The Supreme Court granted certiorari, and reversed the decision of the
Court of Appeals. In his opinion, Chief Justice Roberts invoked the
provisions of the First Amendment that "Congress shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof," denied that there where "internal conflicting
pressures" between the Establishment Clause and the Free Exercise
Clause, and held that, "Both Religion Clauses bar the government from
interfering with the decision of a religious group to fire one of its
ministers."
Because there existed no precedent for the
Court's expansive interpretation of the "ministerial exception,"
Roberts selectively cited and distorted historical examples. First,
Roberts examined the provisions of the Magna Carta in which King John
agreed that "the English church shall be free, and shall have its rights
undiminished and its liberties unimpaired." What made this reference to
Magna Carta rather disingenuous was the Court's past, well-documented
unwillingness to accept "foreign law" as a precedent, and Roberts'
failure to note that the prerogatives of the "English Church" were
explicitly recognized in 1215 A.D. because all parties conceded that the
secular powers were entirely subordinate to the spiritual authority of
the Roman Catholic Church.
Next, Roberts cited to the
experiences of King Henry II, King Henry the VIII, and the Various Acts
of Uniformity enacted during the reign of Queen Elizabeth I,
notwithstanding the fact that these later acts explicitly outlawed the
practice of the Roman Catholic faith and other "heretical sects" in
England after the Protestant Reformation. Roberts' citation to the
experience of the Puritans who "fled to New England, where they hoped
to elect their own ministers and establish their own modes of worship"
was equally unavailing, since among the first acts of the Puritans in
the Massachusetts Bay Colony was to establish a theocracy that punished
all other dissenters. Its position as the established church remained in
place until 1833 when it was disestablished by the Massachusetts
General Court.
Roberts further strained credulity when he
posited some kind of equivalence between the James Madison's
enunciation in 1806, when he was Secretary of State under President
Jefferson, of a "scrupulous policy of the Constitution in guarding
against a political interference with religious affairs" in response to
an inquiry by Catholic Bishop John Carroll about whether he was
permitted to appoint ecclesiastical authorities in the newly acquired
Louisiana territory, or a Congressional Act in1811 that President
Madison vetoed because it sought to grant a corporate charter to the
Episcopal Church in the District of Columbus and Ms. Perich's status as a
teacher who primarily taught secular school subjects but who also
performed some ancillary religious functions.
The Court's reference to prior cases, Watson v. Jones, 13 Wall. 679 (1872) and Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, (1952) and Serbian Eastern Orthodox Diocese for United States and Canada v. Milivojevich,
426 U. S. 696 (1976), was equally unhelpful. Those three cases involved
disputes about the control and disposition of church property, and did
not implicate matters of settled public policy such as the commitment of
the United States, through the Congress, to eradicate the vestiges of
discrimination in the workplace.
As Chief Justice
Roberts conceded, "Until today, we have not had occasion to consider
whether this freedom of a religious organization to select its ministers
is implicated by a suit alleging discrimination in employment."
Nevertheless, he stated, "We agree that there is such a ministerial
exception. The members of a religious group put their faith in the hands
of their ministers. Requiring a church to accept or retain an unwanted
minister, or punishing a church for failing to do so, intrudes upon more
than a mere employment decision. Such action interferes with the
internal governance of the church, depriving the church of control over
the selection of those who will personify its beliefs. By imposing an
unwanted minister, the state infringes the Free Exercise Clause, which
protects a religious group's right to shape its own faith and mission
through its appointments. According the state the power to determine
which individuals will minister to the faithful also violates the
Establishment Clause, which prohibits government involvement in such
ecclesiastical decisions."
In so ruling, Roberts struggled to distinguish the Court's holding in this case from a prior case that was on point, Employment Div., Dept. of Human Resources of Ore. v. Smith,
494 U.S. 872 (1990). As the EEOC noted in its brief, that was a case in
which the Supreme Court declined to recognize a ministerial exception
two members of the Native American Church were denied state unemployment
benefits after they were fired from their jobs for having ingested
peyote, a crime under Oregon law. There the Court found that the denial
of unemployment benefits did not violate the Free Exercise Clause, even
though it conceded that the peyote had been used for a valid sacramental
purposes. The Court held that the "right of free exercise does not
relieve an individual of the obligation to comply with a valid and
neutral law of general applicability on the ground that the law
proscribes (or prescribes) conduct that his religion prescribes (or
proscribes)."
Roberts then engaged in a feat of
legerdemain in which he opined that, although participation in a core
sacramental ceremony by Native Americans was not exempted under the Free
Exercise Clause, laws that prohibited discrimination in employment can
not be enforced when they somehow encroach upon a church's central
beliefs and mission: "It is true that the ADA's prohibition on
retaliation, like Oregon's prohibition on peyote use, is a valid and
neutral law of general applicability. But a church's selection of its
ministers is unlike an individual's ingestion of peyote. Smith involved
government regulation of only outward physical acts. The present case,
in contrast, concerns government interference with an internal church
decision that affects the faith and mission of the church itself. See
id., at 877 (distinguishing the government's regulation of 'physical
acts' from its 'lend[ing] its power to one or the other side in
controversies over religious authority or dogma'). The contention that
Smith forecloses recognition of a ministerial exception rooted in the
Religion Clauses has no merit."
Left unanswered by Robert's opinion are some important questions. Did the Court refuse to accept Employment Div., Dept. of Human Resources of Ore. v. Smith,
as binding precedent because the religious practices in question
involved a non-mainstream religion? If the religious principles in
question involved Islam and Zoroastrianism or Jasinism would the Court
have awarded more deference to the administrative decisions of the US
EEOC ?
Precisely how does the right of a parochial
school teacher - who was never ordained as a deacon, minister, or bishop
in the Lutheran Church but held some title as a "called" teacher - to
seek redress under anti-discrimination laws interfere with a church's
"selection of ministers"? How does the right of teacher to seek redress
interfere with the central doctrines or core beliefs when Lutherans,
along with Roman Catholics, Orthodox Catholics and Episcopalians,
accept the Apostle's Creed as the central statement of their religious
beliefs? Would the Court grant the same kind of deference to the
tangential practices and beliefs of religious groups that upheld the
subjugation of women, demanded the segregation of the races, or
permitted members to deny essential medical treatment to children,
spouses or elderly believers because it contradicted their settled
religious beliefs and practices?
The breadth of religious exemption set forth in Tabor-Hosanna is extraordinary given the court's refusal to be bound by past precedent (the legal principle known as stare decisis).
The Court was also unwilling to acknowledge a compelling government
reason to defer to a "religiously-neutral" and "facially-valid" statute
enacted by Congress to address pervasive issues of employment
discrimination. Equally inexplicable was the Court's refusal to grant
any deference whatsoever to the reasoned arguments of the United States
Equal Employment Opportunity Commission that has a wealth of accumulated
institutional administrative experience, and by law is charged with the
oversight and enforcement of the Americans with Disabilities Act as
well as almost all other civil rights statutes.
The Tabor-Hosanna
decision is especially worrisome given the enactment of so-called
"conscience clauses" that have been adopted by a number of U.S. states,
including Arkansas, Illinois, Indiana, Iowa, Kansas, Kentucky,
Louisiana, Maine, Maryland, Massachusetts, Michigan, Mississippi,
Pennsylvania, and South Dakota. These acts permit pharmacists,
physicians, nurses and other providers of health care not to provide
certain medical services for reasons of religion or conscience. Despite
their possession of licenses granted by secular state authorities, these
laws exempt them from discipline if they refuse to provide a specific
service. These "conscience clauses" have been enacted primarily in
connection with issues such as reproduction, abortion, sterilization,
contraception, and stem cell based treatments, but may include any
aspect of patient care.
This concern about the interplay between religious law and civil law has now become critical. In a recent New York Times
article ("Ruling on Contraception Draws Battle Lines at Catholic
Colleges," January 30, 2012), Denise Grady chronicles the kind of
problems confronted by Fordham University students. Because Fordham
University's student health service refuses to prescriptions for birth
control, many students had to go to Planned Parenthood or private
doctors to get prescriptions. Some of the students, unable to afford
doctor visits, simply gave up the use of birth control pills entirely.
In that article, one Georgetown University Law School graduate, who
suffered from polycystic ovarian syndrome, was reported to have been
prescribed birth control pills by her physician who noted the reason on
his prescriptions. Because Georgetown's health services would not fill
the prescription and she could not continue to pay $100 a month
out-of-pocket, she stopped using birth control pills.Within a matter of
months, she was diagnosed with a large ovarian cyst and lost one of her
ovaries.
The article noted that many other Catholic
colleges refuse to prescribe or cover birth control for religious
reasons. As a consequence, the Obama administration, citing the medical
case for birth control, announced an administrative decision that the
new health care law would require insurance plans at Catholic
institutions to cover birth control without co-payments for employees,
and that may be extended to students. In response, Catholic
organizations contend that the rule would force them to violate their
beliefs, despite the fact that they receive significant funding from the
federal government for buildings and facilities, research, student
grants and for student health services.
The controversy has continued to escalate. During Masses on January 28 and 29, 2012 priests across the country were instructed to read letters condemning the Obama's administration's proposal. Pittsburgh Bishop David Zubik even declared that HHS Secretary Kathleen Sebelius and President Obama have said to Catholics, "The hell with you."
In Reynolds v. United States, 98 U.S. 145 (1878), a case that Chief Justice Roberts did not cite in his opinion, a unanimous Supreme Court denied a Mormon's argument that his religious convictions - that included as a core principle his right to practice plural marriage - should take priority over the secular laws of the United States. Chief Justice Waite upheld the principle of separation of church and state but asked, "Can a man excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances...."
How can such a broadly construed "ministerial exception" as enunciated in this case be reconciled with Article VI of the Constitution that provides that "This Constitution and the Laws of the United States.....shall be the Supreme Law of the Land"? Wasn't the Civil War waged to uphold that the supremacy of federal law? Isn't there a danger that plethora of religious exceptions, even if granted on a case by case basis, will over time subvert the rule of civil law? Before ruling, Chief Justice Roberts and his eight associates should have pondered the importance of Justice Waite's warning.