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Supreme Court's historic but unfinished ruling for religious liberty

The high court endorses an exception for churches in discrimination suits by certain workers. But it has a hard time deciding how secular government can define what a religious worker is.

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    Chief Justice John Roberts and the court's newest justice, Elena Kagan, walk down the steps of the Supreme Court Oct. 1, 2010, after an investiture ceremony for Kagan. The high court ruled Wednesday in a case involving the Hosanna-Tabor Evangelical Lutheran Church.
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In a historic ruling Wednesday, the US Supreme Court tackled a question as old as the Bible itself: Should secular rulers decide whether a religious worker is doing God’s work?

Not even people of faith easily know if one of their own is sincerely pious. And perhaps for that very reason, the high court decided that a religious institution – and not the government – has the sole authority under the First Amendment to make decisions about the employees who “shape its own faith and mission.”

All nine justices agreed that churches and other religious groups are given “special solicitude” by the Constitution to sometimes stand apart from the laws of the land. The First Amendment guarantees both freedom of religious expression as well as no government “establishment” of religion.

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In this case, the focus was on whether a teacher fired by a Lutheran church-school could sue under the Americans with Disabilities Act. The court said she could not.

The case did not hinge on whether Cheryl Perich suffered discrimination because of an ailment. Rather, the court had to decide whether the nature and extent of her religious “functions” made her a minister, and thus subject to the church’s Bible-based disciplinary procedures.

The church said she was fired for not sticking to those Christian principles. And the court wisely agreed that it should not even question that judgment.

Yet using the church’s own records and other evidence, the high court found that Ms. Perich was indeed a minister of the Hosanna-Tabor Church in Michigan. And for the first time, it affirmed the “ministerial exemption,” a legal precedent that lower courts have long used to shield religious bodies from employment laws.

“The authority to select and control who will minister to the faithful – a matter strictly ecclesiastical – is the church’s alone,” the high court stated. “The church must be free to choose those who will guide it on its way.”

While the ruling is a bold stroke for religious liberty, it nonetheless leaves an inherent paradox for future cases.

The court tried to avoid a “rigid formula” for deciding a worker’s religious credentials. Nonetheless, in this case it still dove into the details of doctrine, motives, and practices of a church. The justices seemed to violate their own warning.

How can a court declare that government cannot second-guess a church over the religious status of its workers without also passing judgment on a church’s inner workings?

The dilemma is similar to a humorous movie scene by the British comedy group Monty Python in which ancient Pharisees are prosecuting someone for uttering the Jewish name for God. The lead Pharisee has to say the name itself to make the charge. The crowd stones him instead.

In the court’s ruling, three of the justices tried to tackle the paradox. In concurring opinions, they tried to define higher standards for a court to intervene in similar clashes of church and state.

Not all religions have ministers, they warned, let alone clergy and a hierarchy. And in some churches, even lay persons are messengers of the faith. Judges should look at religious functions, not job titles, they said. Only religious groups know who are true messengers of their teachings, which can “cover the gamut from moral conduct to metaphysical truth.”

They cited a 1989 court ruling that saw inherent difficulty for secular rulers to “separate the message from the messenger.”

Justice Clarence Thomas warned that a court standard that defines a “minister” or other religious title will only force religions to conform its beliefs and practices to that standard. Judges, he stated, should “defer to a religious organization’s good-faith understanding of who qualifies as a minister.”

Justice John Roberts, writing for the entire court, all but acknowledged the court’s work is not done: “There will be time enough to address the applicability of the [ministerial] exception to other circumstances if and when they arise.”

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