Government’s Argument In Church-School Discrimination Case Shocks Supreme Court

The fragile wall between church & state

Back in July I posted about a discrimination case involving a fired teacher at a church school in Redford Township, Michigan. She was fired after a long medical leave. The case was heard by the US Supreme Court on Wednesday October 5th. Instead of trying to argue under the religious clauses of the 1st amendment, the government is using an argument under the freedom of association clause. That choice seemed to shock the justices. I think it is brilliant – if it works.

In 2005, [Cheryl] Perich, who taught mostly secular subjects as well as some religious studies, simply wanted to return to the classroom after her neurologist determined her narcolepsy was under control with medication. She’d been on disability leave for what was first suspected as a heart problem, and after about six months, Perich’s doctor cleared her to return to work.

But the principal and the board at Hosanna-Tabor Evangelical Lutheran Church and School in Redford didn’t believe she was ready, so they refused to reinstate her. Perich, a teacher there for five years without incident, threatened “legal action” to get her job back. She was fired.

School officials say she had violated a tenet of the Lutheran faith enacted in school policy — that school employees could only resolve disputes through internal church procedures and hearings.

Court and Cross

So Perich was fired for threatening to assert her rights under the “Americans with Disabilities Act”. The church school board also refused to accept the view of her Doctor that she was ready to return to work.

If the school wasn’t religious their action would be obviously discriminatory but because it is a religious school they are attempting to use the ‘Ministerial exception’ to the Civil Rights Act of 1964 to win the case.

[Leondra Kruger, an assistant solicitor general] answered that the government was basing its argument on the freedom of association, rather than the parts of the First Amendment that deal with religious freedom.

“We don’t see that line of church autonomy principles in the religion clause jurisprudence as such,” Kruger replied. “We see it as a question of freedom of association.”

The position surprised several justices, including Justice Kagan, the Obama administration’s former solicitor general, who said she found the comment “amazing.” After the hearing, one representative of a religious association called the government’s position a “full frontal assault on religious liberty.”

Chief Justice John Roberts first raised the issue when he asked whether the administration considered anything “special about the fact that the people involved in this case are part of a religious organization.”

Ms. Kruger said, no, that there was no difference whether the group was a religious group, a labor group, or any other association of individuals.

“That’s extraordinary. That is extraordinary,” Justice Antonin Scalia declared. “We are talking here about the free exercise clause and about the establishment clause, and you say they have no special application?”

“We don’t think that the job duties of a particular religious employee are relevant to the inquiry,” she said.

Supreme Court Justices Find Government Line in Church-State Case ‘Amazing’

From the information in the article quoted above, the church, forcing her to resolve the dispute internally, then firing her for exercising her basic civil rights, infringed on her freedom of association.

I can see why they’re using that argument because it avoids the claim we see too much of today that since it is religious or related to a religion then laws like discrimination laws shouldn’t apply to them. I personally feel that if a ‘Ministerial exception’ exists then it should only apply to ministers or matters of faith – not a way to work around civil rights.

It will be interesting to see how it turns out.

I also liked this bit in the ABC story:

“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,” Kruger said.

“But the interests in this [Lutheran] case are quite different,” she said. “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.”

Justice Samuel Alito questioned whether Kruger wasn’t implicitly making a judgment about the relative importance of Catholic versus Lutheran doctrines.

“You think that the Catholic doctrine is older, stronger and entitled to more respect than the Lutheran doctrine,” Justice Alito said.

Kruger disagreed. “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 said.

I agree with Kruger.


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  1. sbj1964
    November 5, 2011

    Let's hope she prevails ,but in light of this courts inept understanding of just about every issue that comes before it I doubt it .

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