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The Supreme Court on Wednesday plunged into a thorny thicket surrounding government enforcement of job bias laws and religious employers, and emerged apparently divided over how to protect the interests of both. The justices heard arguments on whether the Equal Employment Opportunity Commission could sue a Lutheran Church school under the Americans with Disabilities Act because the school fired the teacher after she threatened to file a disability discrimination charge. The U.S. Court of Appeals for the 6th Circuit held that the so-called ministerial exception, which usually bars job bias suits involving ministers and priests, did not apply because the teacher, Cheryl Perich, performed primarily secular duties at the school. In Wednesday’s arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the justices wrestled with the definition of “minister” and how much courts would have to interfere in religious organizations’ activities and doctrines in order to determine who is or is not a “minister.” The ministerial exception is decades old and is rooted in the First Amendment’s religion clauses. “The churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church. That’s a bedrock principle,” argued Douglas Laycock of the University of Virginia School of Law, counsel to the Hosanna-Tabor Evangelical Lutheran Church and School. Perich was a lay teacher first hired by the school as a contract teacher. She was promoted after taking classes to become what the school called a “commissioned” or “called” teacher. Her duties never changed. She taught primarily secular subjects and also a religion class and occasionally led chapel service. She took a sick leave for the 2004-05 school term after five years at the school when she developed narcolepsy. Six months into her leave, Perich’s doctor certified her ready to return. When she informed the school, she was asked to resign and was told a replacement had been hired. She reported for work because she believed she had to secure her contract rights and she threatened to bring a disability lawsuit if not allowed to return. Shortly afterwards, she was informed that she had been fired for insubordination and violating the church’s tenets that disputes were to be settled internally, and not in civil courts. The EEOC brought Perich’s retaliation lawsuit. During arguments, a number of justices pressed Laycock to define “minister.” “A minister is a person who holds ecclesiastical office in the church or who exercises important religious functions, most obviously, including teaching of the faith,” he told them. Justice Elena Kagan asked him, “Would it mean that any religious teacher is a minister under your theory? So, you know, there may be teachers in religious schools who teach religious subjects, not mathematics, but are not ordained or commissioned in any way as ministers. Are they ministers?” Laycock responded, “If you’re ordained or commissioned, that makes it very easy. If you teach the religion class, you teach an entire class on religion, we think you ought to be within this rule.” Justice Sonia Sotomayor asked him about whether a teacher who reports sexual abuse to the government and is fired in retaliation would be unable to sue because of the ministerial exception. “Now, we know from the news recently that there was a church whose religious beliefs centered around sexually exploiting women and I believe children,” she told him. “Regardless of whether it’s a religious belief or not, doesn’t society have a right at some point to say certain conduct is unacceptable? And once we say that’s unacceptable, can and why shouldn’t we protect the people who are doing what the law requires, i.e. reporting it?” Laycock responded that the appropriate rule should be that the government can do many things to force reporting, to penalize people who do not report, “but a discharge claim by a minister presents the question why she was discharged and the courts should stay out of that.” Justice Stephen Breyer, however, said, “This is tough and I’m stuck on this. I don’t see how you can avoid going into religion to some degree. You have to decide if this is really a minister, for example, and what kind of minister. That gets you right involved. Or if you’re not going to do that, you’re going to go look to see what are their religious tenets. And that gets you right involved. I just can’t see a way of getting out of the whole thing.” Breyer suggested reading the ADA allow Perich to show that the church never told her about its religious tenet that disputes must be settled internally. And if she shows it, she will win, he said, and if the church shows it fired her because of that tenet, then it will win, he said. But Justice Samuel Alito Jr. said such an approach still would involve investigating the religious tenet with expert testimony and other witnesses, amounting to interference. Assistant to the Solicitor General Leondra Kruger, representing the EEOC, argued that the government has “a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct. The government’s interest in preventing retaliation against those who would go to civil authorities with civil wrongs is foundational to the rule of law.” She ran into a buzz saw of questions from Chief Justice John Roberts Jr., who challenged her on why she would defer to the Catholic Church when it says only males can be priests, but not to the Lutheran Church when it says its “dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic. You’re making a judgment about how important a particular religious belief is to a church.” Kruger countered, “The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine. But the interests in this case are quite different. The government has a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.” Representing Perich in the case, Walter Dellinger of O’Melveny & Myers said Laycock’s “categorical exception sweeps in cases where the well-pleaded complainant in this case simply says, `I was dismissed from my employment because I said I was going to make a report to the EEOC.’ And she’s not seeking reinstatement. She just wants the economic loss. This is a circumstance in which an organization is going into the public arena providing a public service, and in that situation, it ought to be governed by the same rules.” Dellinger noted that the Supreme Court in U.S. v. Lee, said an Amish employer has to comply with the Social Security laws. But under the Lutheran church’s argument, he added, “The employer could fire without recourse any employee who called non-compliance to the attention of the EEOC. We believe that you can trust Congress on these hard areas where there needs to be additional accommodations.” The circuit courts have split on various tests for applying the ministerial exception. The justices’ decision could have ramifications beyond the ADA. The case has drawn a small blizzard of amicus briefs from religious organizations, employment lawyers, civil liberties groups and religion scholars. Marcia Coyle can be contacted at [email protected].

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