Has The Supreme Court Gone Too Far?

     In this season of political gridlock, continued economic misery and partisan sniping dominated by SuperPACS and millionaires determined to protect their tax advantages, the United States Supreme Court has issued a decision that is destined to further Balkanize this country. In Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 565 U.S. ___ (2012), Chief Justice Roberts on behalf of a unanimous court, ruled that a plaintiff's suit for redress under the Americans with Disabilities Act was barred under the Free Exercise of Religion and the Establishment Clause  of the First Amendment because she had been employed as a "called minister"and teacher in a Lutheran school.

        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 A "commissioned minister" enjoys a status analogous  to tenure: At Hosanna-Tabor, a call could be rescinded only for cause and by a vote of a super majority of the congregation.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.

        Sister Mary Ann Walsh, a spokeswoman for the United States Conference of Catholic Bishops, as quoted to the effect, "We can't just lie down and die and let religious freedom go."

        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.