National News
JIM LO SCALZO, REUTERS/CATHOLIC NEWS SERVICE
The U.S. Supreme Court justices gather for an official picture at the court in
Washington in 2010. Seated in the front row are, left to right, Justice Clarence
Thomas, Justice Antonin Scalia, Chief Justice of the United States John G. Roberts,
Justice Anthony M. Kennedy, Justice Ruth Bader Ginsburg; back row, left to right,
Justice Sonia Sotomayor, Justice Stephen Breyer, Justice Samuel Alito Jr. and
Justice Elena Kagan.
Ruling over teacher's firing could have far reaching implications
Patricia Zapor
Catholic News Service
Washington
The direction the courts will take with other cases related to religious employment
is far from clear, but the Supreme Court's January 11 ruling opens a whole track
of possibilities.
The decision in Hosanna-Tabor v. EEOC held that fired teacher Cheryl Perich could
not sue under federal disability discrimination laws, because the Michigan Lutheran
school where she worked considered her a "called" minister.
Writing
for a unanimous court, Chief Justice John Roberts said the government cannot
require a church to retain an unwanted minister because doing 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."
Some commentators have been quick to hail the ruling. It's "the greatest
Supreme Court religious liberty decision in decades," opined the Becket
Fund for Religious Liberty, which acted as co-counsel to Hosanna-Tabor.
On the other side, David Gibson, a columnist for Commonweal, observed in
a post on the magazine's blog that while the ruling "is clearly the
right one," celebration seems premature. Under the headline "High
court: Religions are free to be jerks," Gibson cautioned about how
churches might exercise their protected right.
"How can churches be held to account?" he wrote. "This is a
real difficulty, given that religious institutions behave just as badly as
secular groups, and often worse. And that truly does hurt the witness of religious
communities."
Anthony Picarello, general counsel and an associate general secretary for
the U.S. Conference of Catholic Bishops, told Catholic News Service Jan.
13 that the ruling is rich with potential for mining material on a wide
variety of religious rights issues. But more immediately, two cases involving
Catholic dioceses that have been pending before the Supreme Court ask related
questions.
In Skrzypczak v. Roman Catholic Diocese of Tulsa, Monica Skrzypczak sued
the Oklahoma diocese for gender and age discrimination after being fired
from her job as director of the Department of Religious Formation. In a
second case, former math teacher Madeline Weishuhn sued the Diocese of
Lansing, Mich., alleging retaliation that violated anti‑discrimination
laws.
Lower courts in both cases held that under the ministerial exception, the
decisions fell within the bounds of a church's protection from state interference
in employment decisions.
On January 17, the court without comment declined to take both cases, meaning
the rulings in favor of the dioceses stand. Picarello had predicted both
cases might be declined or sent back to lower courts to review in light
of the ruling in Hosanna‑Tabor.
He also theorized the ruling could affect a final decision by the Department
of Health and Human Services over its mandate that employers provide no‑cost
coverage of contraception and sterilization in their health insurance plans.
A final rule is pending for the regulations, which have been challenged
by the USCCB and other church organizations as an infringement on religious
liberty. The Catholic Church teaches the use of artificial contraception
is morally wrong and objects to a requirement for such coverage for its
employees. Picarello said the exception for churches that is part of the
pending regulation is a provision the size of an "eye of the needle."
As Chief Justice John Roberts made clear, while the court was declaring for the
first time that a ministerial exception exists and Perich clearly fell subject
to it, how that exception is applied to others will have to be decided later.
"The case before us is an employment discrimination suit brought on behalf
of a minister, challenging her church's decision to fire her," Roberts wrote. "Today
we hold only that the ministerial exception bars such a suit. We express no view
on whether the exception bars other types of suits, including actions by employees
alleging breach of contract or tortious conduct by their religious employers.
There will be time enough to address the applicability of the exception to other
circumstances if and when they arise."
In concurring briefs, Justices Clarence Thomas and Samuel Alito added to the
discussion about what happens next.
"The line is hardly a bright one, and an organization might understandably
be concerned that a judge would not understand its religious tenets and sense
of mission," Thomas wrote, saying he would have gone further in declaring
a church's rights should always prevail in such matters. "Fear of potential
liability might affect the way an organization carried out what it understood
to be its religious mission. These are certainly dangers that the First Amendment
was designed to guard against."
Alito, joined by Justice Elena Kagan, said the definition of who is a "minister," by
whatever terminology a faith uses, should always be left to the faith group.
For a court to be expected to decide that, they said, would require a civil court
or a jury to make a judgment about church doctrine.
"The mere adjudication of such questions would pose grave problems for religious
autonomy," Alito wrote.
The definition of minister "should apply to any 'employee' who leads a
religious organization, conducts worship services or important religious ceremonies
or rituals, or serves as a messenger or teacher of its faith," Alito said. "If
a religious group believes that the ability of such an employee to perform these
key functions has been compromised, then the constitutional guarantee of religious
"