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'Most important' religious freedom case

In this April 9, 2010 file photo, the Supreme Court is seen in Washington.
In this April 9, 2010 file photo, the Supreme Court is seen in Washington.
Associated Press

There was a time when Cheryl Perich may have wanted to emphasize she was a minister.

But that was before her case worked its way up to the Supreme Court this March.

In 1999, Perich signed a one-year contract to teach at Hosanna-Tabor Lutheran Church and School in Redford, Mich. The next year the congregation voted to make her a "called teacher" — a commissioned minister in the Lutheran Church-Missouri Synod. She didn't have to renew a contract every year and could now take tax breaks reserved for ministers. And, under Lutheran teachings, she would be answering a call from God.

But five years later they would vote to rescind her call and put into motion what many say is the most important religious freedom case in years.

When Perich went to a church golf outing in June 2004, she couldn't have known how much her life was going to change. She couldn't have known more than 100 organizations and religious institutions would file 30 briefs in the Supreme Court arguing about what began that day. What was supposed to be a fun activity led to events that are destined to affect almost every religious group in the nation. It will determine who can sue religious organizations for discriminatory hiring and firing practices. It will say which religious employees the law will consider ministers and those it will consider secular. It will decide when the government will step in and stop a church from "discriminating" and when it will back off and let a church make its own decisions.

Robert T. Smith at BYU's International Center for Law and Religion Studies said, depending on the Supreme Court's decision, churches could expect a rash of litigation challenging their hiring and firing for ministerial positions — potentially limiting religious autonomy in choosing who will lead congregations.

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission could change everything.

But in June 2004, it was just a medical mystery. Perich fell ill during the golf outing and was rushed to a hospital.

It took until December before doctors diagnosed narcolepsy — a disease with symptoms ranging from sudden deep sleep to muscle weakness.

Perich went on paid leave at the beginning. As weeks turned to months, the school first doubled up classes with existing teachers, then, they hired a contract teacher to teach Perich's classes the rest of that school year. Perich said her doctor cleared her for work by February 2005. The school thought it would be best have her resign her call in what they call a peaceful release. The school offered to pay part of her insurance — all with an eye to giving her a new call if she was better the next school year. Perich didn't like this and threatened to take legal action for discrimination under the Americans with Disabilities Act. The idea of a "commissioned minister" saying she might sue the tiny church and school was too much for the school's leaders. After hearing both sides, the Hosanna-Tabor congregation voted 40 to 11 to rescind Perich's call.

Perich filed a charge with the EEOC in May 2005. The EEOC filed a complaint against Hosanna-Tabor in district court in September 2007. Perich added her own claim in district court in March 2008. She wanted money and reinstatement.

The question was whether the law should consider Perich a minister or just an elementary school teacher.

If she just taught math, language arts or social studies it would be a simple discrimination case under the ADA. She would claim she was dismissed in retaliation because she told her employer she was going to assert her rights.

But Perich didn't just teach secular subjects. She taught a religion class, attended chapel services with her students, led the class in prayer and held devotionals each morning.

The district court granted summary judgment for the school. It did not want to get involved in telling a church who its ministers should be. It invoked a legal doctrine with a title that sounds like a John Grisham novel: The Ministerial Exception.

After the district court sided with the school, the EEOC and Perich appealed to the 6th Circuit Court. To win, she had to convince the court she was not a minister for the purposes of discrimination law.


You need two things for the ministerial exception: a religious institution and a ministerial employee. If you have both, the courts will not judge discrimination claims between the two. Why? When you start looking at whether a church fired a minister properly there is "certainly an intrusion into the inner workings of a religious organization. There are religious freedom sensitivities that are not present when you are talking about other (non-religious) employers," said Edward Whelan, president of the Ethics and Public Policy Center.

Although some religious organizations rely on a non-paid ministry, most churches employ their ministers. Even churches that rely on volunteers often will pay some employees such as at religious schools, seminaries or headquarters. Those paid employees — from ministers to teachers — could potentially challenge their religious employers for discrimination violations.

The ministerial exception all grows out of the First Amendment which says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …" The base of the concept is the separation of church and state.

"People think separation of church and state means President Obama can't say, 'God bless America' or ministers can't talk about politics. But historically that is not what it is all about," said Richard W. Garnett, a professor at Notre Dame Law School. "Separation of church and state at its core means the political authority, the power of the state, is distinct from the power of religious communities to govern their internal affairs — to pick their own ministers, to pick their own teachers, to choose their own doctrines. … And so even if the church makes a wrong decision about who its minister is going to be, that is not something the government gets to correct."

But Gregory M. Lipper, litigation counsel at Americans United for Separation of Church and State, doesn't see it that way. "What is the appropriate balance between protecting religious liberty, on the one hand, but also not creating a 'get out of jail free card' that enables any religious institution to avoid any anti-discrimination law that it doesn't like," Lipper said. "The ministerial exception is designed to protect religious liberty and so it should only apply when there is actually a religious liberty interest. When the discrimination has nothing to do with religion, then the exception shouldn't apply."

The U.S. Court of Appeals for the 6th Circuit said Perich wasn't a minister. "In all, activities devoted to religion consumed approximately forty-five minutes of the seven hour school day," the court explained in its March 2010 decision. Because she spent her time primarily on secular subjects, the court said, the ministerial exception did not apply. Perich could sue for discrimination.

The 6th Circuit Court's decision illustrated a weakness with the ministerial exception. Pastors, rabbis and priests are obviously ministers. Courts have found that janitors and secretaries are not ministers when applying discrimination laws. But somewhere in between is the line and different circuit courts were putting it in different places.

Now it was Hosanna-Tabor Lutheran Church and School's turn to appeal. The Supreme Court agreed to hear the case — making this the first time it would weigh in on the ministerial exception.


The Obama administration's Department of Justice surprised both the supporters of Perich's claim and the supporters of Hosanna-Tabor's position. It's lawyers argued in their federal response brief that because discrimination laws are "neutral and generally applicable laws" they apply to religious organizations.

Smith at BYU said, "They … didn't argue about limiting the scope of the ministerial exception, but rather argued that it should be virtually eliminated altogether … even if it produces burdens on religious exercise." The Obama administration wasn't arguing that Perich wasn't a minister. They weren't arguing about where the line should be drawn. They said it didn't matter if Perich was a minister or not. There was no line.

Both Garnett at Notre Dame Law School, who worked on an amicus brief in support of the school, and Lipper at Americans United for Separation of Church and State, who worked on an amicus brief in support of Perich, disagreed with the Department of Justice. Garnett said its arguments are "out of the mainstream of what courts have decided." Perich said the Department of Justice's brief "is not protective enough of religious entities and the legitimate religious liberty concerns that motivated the ministerial exception in the first place."

The brief of BYU's International Center for Law and Religion Studies looked at the ministerial exception in other countries. "The irony is that even though in much of Europe, where states have been more willing to exercise some control in church matters, they still strongly recognize the autonomy of churches to choose their own ministers." Smith said. "If the United States discredits the idea of a ministerial exception, it will permit the U.S. government a significant intrusion into the spirit of religious autonomy that the original founders wanted to break away from."

The Supreme Court will hear oral arguments on Oct. 5.

"No one is really sure of how broadly or narrowly the Supreme Court is going to address this question," Lipper said. Will they accept the Obama administration's argument that there is no ministerial exception? Will they say the ministerial exception exists, but narrow its scope? Perich, however, can be sure of one thing. Although the church still exists (and defends itself in the case) the little school closed down and a new school, in cooperation with another Lutheran church, has taken its place.

She won't get her job back.