Perhaps the most important First Amendment establishment-free exercise case will argued before the US Supreme Court on Wednesday. The facts seem fairly innocuous, but the legal precedent may be wide-ranging. The facts as summarized by Lyle Denniston:

In July 1999, she was hired to teach for a Lutheran organization, Hosanna-Tabor Evangelical Lutheran Church, in a kindergarten through eighth grade school that the church operated in Redford, Mich. . . . Its sponsors described the school as offering a “Christ-centered education based on biblical principles.”  That school had two categories of teachers: those who taught under contract, in the same way that public school teachers do, and those who were deemed to have been “called,” in a religious sense, to teach at the school.   A teacher who has completed a specific training course at a Lutheran college is deemed to be a “called” teacher, and is designated as a “commissioned minister.”  That is the category at issue before the Supreme Court.

Ms. Perich joined the small faculty of the Redford school as a contract teacher, to teach kindergarten.  The next year, she completed the required religious studies and became a “called” teacher, but with no change in her teaching duties.  After three years leading kindergarten classes, she moved into teaching third and fourth grades.   Using secular textbooks, she taught math, language arts, social studies, science, gym, art and music.  Later in court, she would say that she could remember only two occasions in which she introduced any religious ideas into teaching those subjects.  However, she did teach a 30-minute religious class four days a week, and attended chapel with her class once a week for 30 minutes.  She led her class in prayer three times a day, for five or six minutes each.  Twice a year, she took her turn, with all teachers, contract and “called,” in leading chapel services.  In her final year at the school, the class under her leadership engaged each day in a brief devotional activity.

Her legal case had its origin in June 2004, before the opening of the next school term.  She suddenly became ill during a sports outing, and was hospitalized.   She was ultimately diagnosed with narcolepsy.  The symptoms of that disorder can include sudden and deep sleeps from which the patient could not be awakened easily.  While Ms. Perich gave several dates for returning to work, each passed without her doing so. The school later insisted that it tried for a semester to save her job, but then decided it had to hire a replacement for the ensuing semester.

With no definite resolution of her medical situation, school officials in January 2005 decided to ask her to give up her “call,” and resign.  Such a release is itself considered a religious act, with each side agreeing to the “peaceful” rescission of the call.  Ms. Perich refused, and obtained a note from her doctor saying she could return to teaching in February.   The school told her that there was no place for her, since the hiring of a replacement teacher.   The school officials also insisted that they remained concerned about her physical health.  She showed up at school on the day the doctor had designated for her return, but was turned away.  She threatened to sue, and officials warned her that that would violate the church’s policy that conflicts within the staff be resolved internally.   Her “call” was shortly rescinded by the school, accusing her of insubordination and disruptive behavior by damaging the relationship with the school.   Ms. Perich took her case to the EEOC, which sued the school under the ADA, charging retaliation for her assertion of her rights under that Act.  She joined in the case, making her own claim of retaliation under the Act.   The legal claims sought her reinstatement as a “commissioned minister,” back pay, damage payments, and a court order for the school to change its policies.

The legal stance:

As long ago as 1972, the federal appeals courts accepted the idea that the Constitution’s religion clauses, in the First Amendment, protected religious organizations’ right to make their own decisions about hiring or firing their clergy, without limitations from laws against discrimination in employment.  The Supreme Court chose not to review the first of those decisions, and it has never ruled explicitly that there was such an exception in the Constitution.  Even so, all 12 federal appeals courts with the authority to hear such cases, and ten state supreme courts, now agree that the exception does exist, and that it at least applies to pastors, priests, and rabbis — those who obviously pursue religious vocations, ministering to the followers of their faiths.  Thus, this is called the “ministerial exception.”  But the agreement largely ends at what might be called the professional pastoral level.  There is widespread disagreement on how deep into the payroll and staff of a religious institution the exception applies.  That disagreement is what the Supreme Court is about to confront.

A number of federal civil rights laws do include an explicit religious exemption.  But, for many religious organizations, those exemptions do not go far enough: they argue that full protection is available to them only if it is grounded in the Constitution, and only if it is broad in scope; some even argue that it must be categorical: a flat ban on enforcement of anti-bias laws for staffing decisions.  At its furthest, this argument is based on the premise that, within some religious institutions (such as parochial schools), every member of the staff is carrying on the religious mission, and that all duties are infused with an expression of faith.

In the test case now before the Justices, the argument is made that who is a “minister” entitled to the exception cannot be determined in a “mechanistic” way, “adding up minutes of the day in columns labeled ‘secular’ and ‘religious,’ and comparing the totals….Counting minutes does not measure the importance of an individual’s religious functions.”   The ultimate constitutional necessity, in that view, is to have an exception that is broad enough to ensure that it is the church, or synagogue, or mosque that makes the decision about who does the ministering, and how they do it, and not a government enforcement agency looking in from the outside. An exception of that breadth is energetically contested by the federal government’s main workplace discrimination agency, the EEOC.

The core question before the Justices, in responding to the broad argument for an exception, is how to define the scope of duties of parochial school teachers like Cheryl Perich.   If the decision is that Ms. Perich was a minister, anti-bias laws cannot shield her in the workplace; if she was not, she is then like any other worker, protected against discrimination on the job.   In her case, the claim is that she was discriminated against because of her physical health problems and her insistence on her legal rights — in short, she was allegedly the victim of retaliation, in violation of the federal Americans with Disabilities Act.

Why has this case drawn the ire of so many denominations? Thomas Kidd of Baylor University argues:

One cannot imagine a more obvious feature of an establishment of religion, or a clearer violation of free exercise, than the government dictating to a church that it must rehire a religious teacher, especially a person who has violated church teachings or behavioral codes. The Justice Department’s position, if vindicated, raises the possibility that courts and bureaucrats may, in the name of contemporary norms of fairness, begin requiring religious organizations to hire any number of candidates who do not accept that faith’s tenets. One could easily imagine future decisions forcing churches, synagogues, or mosques to hire employees who do not adhere to the tradition’s norms of sexual behavior, for example.

Religious liberty will be severely damaged if faith groups cannot hire and fire according to their beliefs. That’s why leaders from such an impressive range of religions are united by the threat of a government clearly overstepping its well-defined boundaries.

UPDATE: In a different case which implicated the same principles involved in the case tomorrow; the court may be exploring a difference in belief/doctrine vs. duties om the job.

The U.S. Supreme Court let a lower court decision stand Monday that Federal Way-based nonprofit World Vision can hire only Christians to work in its U.S. operations.

The largest nonprofit in the state has the right to hire or dismiss employees based on their religious affiliation, the court ruled by allowing the lower court decision to stand.

The four-year court fight was initiated by three former World Vision employees who were fired because they didn’t agree with World Vision’s U.S. statement of faith, which World Vision says is a condition of employment.

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