Can civil rights be religious wrongs?

[rug]

Vivian Berger

The National Law Journal
September 19, 2011

Oct. 5, the U.S. Supreme Court will hear arguments in a very significant case that pits a Lutheran parochial school's assertion of First Amendment rights against the claims of the Equal Employment Opportunity Commission and a fired teacher, Cheryl Perich, of violations of the Americans With Disabilities Act (ADA). The high profile of this suit, Hosanna-Tabor Evan­gelical Lutheran Church and School v. EEOC, is reflected in interest by third parties — 31 amicus briefs have been filed — and by the church's retention of Professor Douglas Laycock of the University of Virginia School of Law, a leading authority on religious liberty, to represent it.

Hosanna-Tabor illustrates a recurring tension between two bedrock guarantees: the religion clauses of the First Amendment and the civil rights laws. Because the parties believe they are playing for high stakes, the ultimate decision will greatly disturb one side's adherents. Indeed, depending on the Court's precise disposition and reasoning, everyone involved may end up unhappy.

Perich taught elementary grades at the church's school, first serving as a "lay" teacher. After completing doctrinal courses, she became a "called" teacher with the title of "commissioned minister." Her duties, however, remained the same: principally, instructing her students in secular subjects. Although she had certain faith-based duties, such as leading her class in prayer and teaching religion once a week, these occupied only approximately 45 minutes a day.

Perich fell ill with narcolepsy and went on disability leave for the 2004-05 school year. When she wished to return several months later, school authorities, concerned that Perich's condition might endanger student safety, offered her a "peaceful release contract." Perich declined it and, cleared by her doctor, insisted on showing up at school. She told the principal that she would assert her ADA rights unless a compromise could be reached. Ultimately, the board's chairman wrote Perich that because of her "insubordination" and "disruptive" conduct — he stated she had "damaged, beyond repair" her relations with the school by "threatening to take legal action" — the board would ask the congregation to rescind her call.

http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202514591940&Can_civil_rights_be_religious_wrongs&slreturn=1&hbxlogin=1

Link to the filed briefs:

http://www.americanbar.org/publications/preview_home/10-553.html

[Jim__]

1. I don't see any religious wrong here.

Essentially the church is claiming that anyone who works for a church gives up all their civil rights - even though they have not presented any religious argument to justify this.

[rug]

2. This is how they framed the question.

The federal courts of appeals have long recognized
the “ministerial exception,” a First Amendment
doctrine that bars most employment-related lawsuits
brought against religious organizations by employees
performing religious functions. The circuits are in
complete agreement about the core applications of
this doctrine to pastors, priests, and rabbis. But they
are evenly divided over the boundaries of the ministerial
exception when applied to other employees.

The question presented is:

Whether the ministerial exception applies to a
teacher at a religious elementary school who teaches
the full secular curriculum, but also teaches daily
religion classes, is a commissioned minister, and
regularly leads students in prayer and worship.

[iris27]

3. This exemption always screwed over the teachers at the parochial schools I attended growing up.

They were not happy about it.

The most minor, but most prevalent, complaint was that all such "called" teachers (and they're ALL called teachers) are essentially contractors under employment law. As such, the religious-based school doesn't have to pay the employer's half of FICA taxes for them - they must file as self-employed and pay both halves themselves. It's basically a 7.5% pay cut for folks that are being pay an incredibly meager salary to begin with.

[Jim__]

4. Is religion above the law?

Stanley Fish looks at this case in one of his columns. An excerpt:

...

The question is, at what point? And who gets to decide when that point has been reached? Indeed there is a question even more basic (and equally unanswerable except by fiat): who gets to say whether a “certain conduct” is religious and centrally so? A resolution of the Hosanna-Tabor case, Justice Samuel Alito observes, “depends on how central a teaching of Lutheranism” the injunction against “suing in a civil tribunal” really is. Before we can decide (he continues) whether the church’s asserted reason for terminating Perich is a pretext, we must determine whether this is in fact “a central tenet of Lutheranism.” And if we decide that it isn’t, wouldn’t we be “making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?” And what authorizes the Court to do that in opposition to what the churches themselves say?

The same dilemma attends the other vexed question. How, wonders Chief Justice John Roberts, “do we decide who’s covered by the ministerial exception?” By getting to “the heart of the ministerial exception,” answers Douglas Laycock, speaking for the church. But that is simply to relocate the problem in a phrase that itself demands explication. Who’s to say where the heart is? In some churches, Justice Anthony Kennedy observes, there aren’t “full time ministers at all; they’re all ministers.” So does everyone fall under the exception and can a non-hierarchical church simply declare that none of its members can seek redress for acts of discrimination because they’re all ministers? Just before the oral argument concludes, Justice Sotomayor is still awaiting clarification: “So define minister for me again?”

She will be waiting forever. There is no way out of these puzzles, and that is exactly the conclusion Justice Stephen Breyer reaches: “I just can’t see a way … of getting out of the whole thing.” Justice Alito points to the absurdity of calling in expert witnesses to determine the truth of disputed matters of religion, but, he asks, “How are we going to avoid that? I just don’t see it.” Later he concludes that “you just cannot get away from evaluating religious issues,” which is of course exactly what the courts are not supposed to be doing.

So how will the case turn out? Clearly none of the justices wishes to pronounce as a theologian. And just as clearly none of them is happy with the prospect of a ministerial exception without defined limits. Breyer gestures in the direction of a solution that avoids the hard questions. Grant the Church the core doctrine it cites and inquire into whether Perich was given adequate notice of it. If she was, she loses; if she wasn’t, she wins. But no one will be satisfied with that maneuver, which will itself raise a host of new unanswerable questions in place of the questions supposedly avoided. All these questions were explored by John Locke at length in his “Letter Concerning Toleration” (1689), and at one point Locke gives voice to a weariness we might echo today: Would that “this business of religion were left alone.” But as long as there is a religion clause, that’s not an option.

[laconicsax]

5. A lot of people seem to think so... n/t

[Taverner]

6. Depends on your religion

If your religion is dogma above humanity, then yeah, civil rights = wrong to you

But if your religion allows for critical thinking and Beatitudes-worthy goals, then yeah - you are working towards justice

[LateTrade]

7. Well framed! n/t