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Supreme Court Says Religious Job Isn’t Protected By Employment Discrimination Laws

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When bad things happen, those of the religious persuasion will often say that “the Lord giveth and the Lord taketh away.”  It’s a belief that not everyone subscribes to, but apparently the U.S. Supreme Court does — at least when it comes to employment discrimination laws as applied to religious institutions.

The ruling is a pretty impressive and in many ways a surprising decision from the Court.  That’s because it’s the first time the ministerial exception to current employment discrimination laws has been established.  It essence, the ruling acts as an extension of the Establishment Clause of the First Amendment, which guarantees citizens the right to their freedom of religion.

The case first came about when a teacher, Cheryl Perich, for the Hosanna-Tabor Evangelical Lutheran Church was fired after she attempted to reclaim her job after finishing maternity leave.  Perich sought out legal help and her attorneys sued the church claiming their refusal to keep her position open for her after her pregnancy violated the Americans with Disabilities Act.

The lower courts agreed with Perich, but when her case reached the Supreme Court, they overturned the previous rulings.  The Court’s reasoning was that churches and indeed all religious institutions should be free to decide who can and cannot work for the church.  In their view, much as it would be a violation of the First Amendment to compel the Catholic Church to ordain a female priest; forcing Perich’s church to give her job back would be a similar violation.

What’s interesting here is that the Court abstained from setting the criteria of which religious employees would be protected by employment discrimination laws and which weren’t.  At first blush, the Court’s ruling might seem to imply that all religious employees weren’t protected.

However, as the Court states in its opinion, Perich’s teaching job required her to hold prayer in addition to teaching non-religious subjects and therefore it wasn’t an entirely secular position.  The Court states that only positions that entail providing religious duties are covered by the ministerial exception.  So the question that’s left hanging is “What a religious job?”

It seems odd to me that this would be such a hard question to answer.  There are certainly many matters before the Supreme Court that I definitely would need a lot of time to ponder over in order to answer.  However, the question of what is and isn’t a religious job is definitely not one of them.

Though it will be some time before the Court gets to this question, especially seeing as how Perich’s case was first heard over a decade ago, I think the criteria for defining a religious job is quite clear.

First, one must look at whether the job requires the person to perform any religious ceremonies, sermons or services.  There is no need to look at the extent of religious content in these ceremonies or services, only that it comes from the religion.

Second, the job is one that requires religious training.  Now not every religious position requires one to undergo religious schooling, but if it does than that tilts the scale towards the job being a religious one.

And third, the job is one that members and leaders of the church or the religion’s scriptures consider to be a religious position.  This is important because the First Amendment requires that government be separate from religion in that it doesn’t interfere or endorse any religion.  By taking into account what a religion’s text or members decide is a religious position, the government will be able to respect the Constitution and the rights of this country’s citizens.

I say that if at least two of these criteria are fulfilled, then the job must be categorized as a religious job and therefore covered by the ministerial exception.  If they don’t, then the Americans with Disabilities Act applies.

What do you guys think about the ministerial exception?  Do you think churches should be required to comply with the ADA?  What criteria do you think courts should consider when determine what is and what isn’t a religious job?

Ken LaMance

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