There’s nothing quite like a First Amendment dispute to illuminate the subtleties of interpreting separation of church and state.

By Elissa Lerner

Last week, the Supreme Court ruled for the first time to uphold a forty year-old practice known as the “ministerial exception” in the case of Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission (EEOC). In Hosanna-Tabor, Cheryl Perich, a teacher who mostly taught secular subjects but also religion and occasionally led prayers, was fired after taking a leave of absence to receive treatment for narcolepsy. She threatened to sue the school for violation of the Americans with Disabilities Act (ADA). A federal appeals court concluded that since her primary duties were secular in nature, she was therefore not a minister and could sue under ADA. However, the Supreme Court, in its first ministerial exception case, unanimously decided to overturn the decision, ruling that the question of who is a minister could not be “resolved by a stopwatch.” For the government to interfere with a church’s firing process “intrudes upon more than a mere employment decision,” wrote Chief Justice Roberts. “Such action interferes with the internal governance of the church, depriving the church control over the selection of those who will personify its beliefs.”

The decision is, by most accounts, at odds with the position of the Obama Administration, and indeed, the Court’s position of the last few decades. The reason why the issue has been simmering for so long is neatly summarized by Dahlia Lithwick: “It pits a central American value (that we do not discriminate) against another central American value (that free exercise of religion really means something).” During the initial arguments, Justice Breyer said he was stuck. Such confusion is inherently bound up in the (previously) nebulous concept of the ministerial exception.

Cheryl Perich in DC last fall

The ministerial exception first arose in 1972 in McClure vs. Salvation Army. Title VII of the Civil Rights Act of 1964 had created a narrow exemption for religious employers to discriminate on the basis of religion (ie., a church could not be forced to hire Buddhist clergy, or vice versa). However, this exemption left religious institutions liable for discrimination upon race or gender, theoretically making it possible for a woman to sue the Catholic Church for sex discrimination in ordination. In McClure, the U.S. Court of Appeals Fifth Circuit held that “the relationship between an organized church and its ministers is its lifeblood.” To apply Title VII to religious employment would “result in an encroachment by the State into an area of religious freedom,” they stated, and the case was dismissed.

Different circuit courts have interpreted the 1972 exemption differently; it wasn’t until last Thursday that the Supreme Court had weighed in. Part of the problem with rulings that uphold ministerial exceptions is that, whether intended or not, they effectively put religious institutions above the law. In God Vs. The Gavel, Cardozo law professor and columnist Marci Hamilton explains, “In addition to seeking legislative exemptions, religious entities have argued vigorously and actively in the courts (and the legislatures) for a presumptive constitutional right to avoid the law pursuant to the federal and state free exercise of religion guarantees. They have foisted a definition of the First Amendment onto the American people that means, in effect, that they are immune to all but the most necessary laws.” Hamilton points to an earlier case, Rosati v. Toledo, Ohio, Catholic Diocese (2002), in which the defendant was let go after being diagnosed with breast cancer (among other things), and when the defendant attempted to sue under the ADA, she, too, lost.

The current U.S. Supreme Court

Hamilton wonders if behavior such as firing a nun for having breast cancer is a reflection of religious beliefs (which would be protected) or simply an insulation of the church due to religious stature (which she argues should not be protected). Because of ministerial exception, “There is always a risk… that the religious entity will be permitted to engage in discrimination not actually required by its beliefs,” writes Hamilton. One can see how such an argument would apply to a case like Perich’s.

The thing is, “separation of church and state” (a phrase coined by Thomas Jefferson and not actually in the Constitution) was intended to keep religious institutions protected from the government, not to keep people protected from religious institutions. Perich taught in a religious school, led her students in prayer, and was considered a “called teacher” by the Lutheran church, meaning that she had completed ecclesiastical study and was issued a ministerial commission. Together, this was enough for the Supreme Court to consider her a minister and to stay out of the church’s way. However, while ministerial exception has now clearly been established at the highest level, the real questions remain: who is a minister? How is that to be determined? If, as Justice Thomas opined, the Supreme Court defers to the church’s judgment as to who a minister is, then can there be any check on employment practices? With church sex abuse scandals still lingering in the atmosphere, the implications of this decision no doubt have yet to be determined.

Elissa Lerner is the Clay Felker Fellow and Staff Writer for Duke Magazine. She holds an M.A. in Religious Studies and Journalism from New York University.

For more information on this case, click here, here and here.