In a unanimous decision in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, handed down yesterday, the Supreme Court laid a wrecking ball to the First Amendment, placing a large shield around religious employers that violate workplace laws.
Cheryl Petich was employed by the Hosanna Tabor Evangelical Lutheran Church as a kindergarten teacher in Redford, Michigan in 1999. She did well, and was promoted to "called teacher," and the Church bestowed on her a certificate designating her a "commissioned minister." Her "religious duties," like leading prayers with the kids, consumed only 45 minutes of each workday, and that the rest of her day was devoted to teaching secular subjects. Several years later, unfortunately, Ms. Petich fell ill, and was disabled.
Normally, when an employee goes out on disability, the law requires that, if his or her job is filled, it must be filled temporarily, so that the disabled person may return to work when their condition improves. There are limits to this job retention law, and it leaves employers sometimes questioning how long they must wait, but they have learned to accommodate it, and avoids the problems faced by people when they become temporarily disabled and then immediately lose their job and their health insurance at the worst possible time.
After being out for the 2004 fall term, Ms. Petich gave the school her doctor's note that she would be able to return to work on February 22, 2005. The school administrators, however, decided that, despite the doctor's determination, Ms. Petich was unlikely to be physically capable of returning to work that school year or the next. They asked her to resign. Ms. Petich, pointing to her doctor's note, said there was no need for her to resign.
Ms. Petich came to school on February 22, the first day she was medically cleared to do so, but the principal told her to leave the premises. The principal called her later that day and told her that she would likely be fired. Ms. Petich noted that she had spoken to an attorney, and intended to assert her legal rights. The outraged school board then brought up at a Church congregation meeting the issue of her intent to rely on the law, which they denounced as "insubordination and disruptive behavior," the congregation voted to strip her of her religious certification, and she was fired the next day.
When the Equal Employment Opportunity Commission came calling, after Ms. Petich had filed a claim for discrimination based on disability, the school said that Ms. Petich had not been fired because of her disability. No, they were fine with her disability. Rather, she had been fired because of religious law. Ms. Petich had violated the beliefs of their Church. What beliefs of the Hosassa-Tabor Evangelical Lutheran Church had Ms. Petich violated so flagrantly? Why, the belief of the Church that its members should never resort to the law to protect their rights against Church members.
No, I'm serious. The Church said that anyone who threatens litigation is violating God's law. Since Ms. Petich mentioned that she "planned to assert her legal rights," she had to be fired because she violated God's law. I mean, seriously?
Rather than dismissing this whopper with a chuckle, as they should have, the Supreme Court bowed reverentially and ruled that any religious employer can avoid a lawsuit for workplace laws so long as they take care to ensure that their religious beliefs include a line about never suing the Church. Firing for disability? Right as rain. You seem gay, so you're fired? No problem. Fire those sniveling whiners who complain about sexual harassment or sex-for-keeping-your-job? A- Okay. You say we violated the child labor laws or the minimum wage laws? No, sorry, those are ministers, so the laws don't apply. You got injured on the job and want to sue? Forget it, bub, we told you that your job includes thinking about God and being holy, so the "ministerial exception" puts the halo of silence around you. Get on your knees and tell your ambulance-chaser to take a walk.
I can just imagine the conversations taking place today at the General Counsel's Offices at the Church of Scientology, the Church of the Flying Spaghetti Monster, and every other major religion.
But more than the specific principle announced here, the Supreme Court is signaling something about the application of law in the face of a defense based on "religious freedom."
In the 1990 case of Employment Division v. Smith, the Supreme Court was faced with a private employer that had fired two employees for ingesting peyote, a criminal offense in Oregon, as part of a ceremony at a Native American church of which they were members. The State denied the employees unemployment benefits pursuant to work-related misconduct. The employees said that the principle of religious freedom meant that they were not subject to the application of the law. The Supreme Court of the United States upheld the denial of the unemployment compensation claim. It ruled that religiously motivated actions do not receive Free Exercise Clause protection when they violate a neutral and generally applicable statute, such as the drug laws of Oregon.
Is that case still good law? The Court specifically distinguished the Smith case in its latest ruling on the grounds that it involved government regulation of "only outward physical acts." It said that anything involving an "internal church decision that affects the faith and mission of the church itself" is off limits to law. This is an unfortunate statement, for it means that courts must now decide what types of acts constitute "only outward physical acts," as if any physical act is "outward" only -- all acts have a motivation. Honestly, judge, my decision to drive after overindulging on that "sacramental wine" was not simply an outward physical act; it had deep religious meaning. Also, courts must now decide what constitutes "internal church decisions" and also whether they "affect the faith and mission" of the religion. Honestly, how is a judge of some other or no religious persuasion supposed to decide that? Having been raised a religious Jew, I never did get the whole Christian thing. I still am not entirely sure of the real difference between Catholics and Protestants, other than that they have been fighting for centuries. I wouldn't have the faintest idea of what affects the faith and mission of a Hindu or Zoroastrian or Santerian religious group.
"We are reluctant, however," says the Supreme Court, "to adopt a rigid formula for deciding when an employee qualifies as a minister." Yeah, right, you bet. Translated, this means they acknowledge that their ruling is very difficult to square with the law, and that, far from removing courts from involvement with church decisions, courts are going to have get involved in the nitty-gritty of internal church decisions. In the past, the Court has said that it would not create rules requiring courts to decide about the propriety or sincerity of religious doctrine because that would itself violate the First Amendment's rule against interfering with the free exercise of religion. Now it has gone and done that very thing, and it's going to be a mess that will take years to resolve. "There will be time enough to address the applicability of the exception to other circumstances if and when they arise," says the Court. What, are you kidding?
Justices Thomas, Alito and Kagan, who concurred in the decision, nevertheless wrote separate opinions to stress exactly that problem, and to opine that courts shouldn't get involved in such issues. But they're shutting the barn door after the horse is gone. Once you rule that religious organizations can circumvent the law by invoking religious doctrines, you're going to see this claim replicated in thousands of cases by inventive lawyers. My guess is that, after years of court battles, and millions of dollars in legal fees, and thousands of hours of litigation time, the Court will eventually circle back and say it didn't really mean all that. But we're in for a wild ride.
Why the heck is this a unanimous decision? I can understand the First Amendment impulse not to want to have governments tell churches who they can employ as leaders. But this creates an exception that you can drive a truck through, and Supreme Court Justices should be smarter than this. I mean, this isn't a decision not to employ someone who doesn't fit the religious qualifications. There is already another exception for that, permitting churches to use religious qualifications in their hiring decisions. Rather, the decision yesterday makes "Church" into a magic word that banishes law enforcement.
I wouldn't be surprised to see a large scale reorganization of a wide variety of business-related entities to try to take advantage of the new religious shield exception. It shouldn't be unexpected to see a series of lower court decisions, particularly in, say, Oklahoma, saying that the Baptist Plumbing Co., Inc., which has every employee lead morning prayers or write a religious blurb on the company blog once a month, is exempt from workplace laws. As I discussed in my recent law review article on the application of the First Amendment to LGBT employment discrimination laws, a First Amendment claim cannot trump employment non-discrimination laws. But we're going to see a much stronger effort to do so after this decision.
I also wouldn't be surprised to see other "religious exemptions" popping up beside employment laws. Why stop there? Why should Rev. Joe Schmoe, of the Church of the Insane Psychopath, be subjected to laws prohibiting him from being a drug dealer to his flock or dismembering his employees, occasionally, when they get out of line, or harboring terrorists, since these are his core religious beliefs? Are these "only outward physical acts" or "internal church affairs"? No, really, where does this principle stop, logically? What, specifically, makes discriminating against my employee's disability different from imprisoning my employee in the basement to keep out the demons, if my religion calls for it? No doubt that Rev. Schmoe is going to spend a long time in the clink, regardless of any dumb Supreme Court doctrine, but the reasoning of that the decision slapping down his "ministerial exception" claim is going to be little more than "we don't recognize that religious purpose so your acts are only outward physical acts." Courts deciding on which religious purposes matter -- now there's an "Establishment Clause" problem if I ever heard one. Christian Dominionists rejoice!
"Psycho Talk," as Ed Schultz says in his MSNBC political talk show.