The U.S. Supreme Court has issued a troubling decision which affirms the validity of a judicially-created exception to the nation’s employment discrimination laws. In upholding and expanding the so-called “ministerial exception,” the Court rendered an entire class of employees, i.e., ministers or other religious leaders, ineligible for protection from employment discrimination. Moreover, the Court broadly interpreted the term “minister” to include religious school teachers who are ordained in their faith but not working in the role of minister of a congregation.
The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, was brought by a former employee of the Evangelical Lutheran Church, Cheryl Perich, who alleged she was fired from her teaching position by the Church because she had pursued an employment discrimination action against it based on disability. The Church admitted that it terminated Ms. Perich in retaliation for her filing a charge of discrimination. However, it sought sanctuary under a judicially-created exception to employment discrimination laws called the “ministerial exception.” As Chief Justice Roberts explained, this exception is grounded in the First Amendment’s Free Exercise Clause. According to the Court’s reasoning, the Constitution’s guarantee of freedom to exercise the religion of one’s choice confers on religious organizations the right to choose their leaders in any manner they want — even in a discriminatory manner.
In arguing against the ministerial exception, Ms. Perich cited an earlier case where members of a church were denied unemployment benefits after it was discovered that they were fired for using peyote as part of a religious sacrament. In that case, the court determined that the Free Exercise Clause had not been violated because the right to exercise religion does not relieve an individual of his or her obligation to follow valid and neutral laws of general applicability. The Court in Ms. Perich’s case distinguished the earlier case by stating that smoking peyote implicated government regulation of an outward act while Ms. Perich’s case implicated an internal Church decision that affected the faith and mission of the Church itself.
This decision is troubling for many reasons. First, the “ministerial exception” may be interpreted even more broadly in the future, as this Court applied the exception to teachers like Ms. Perich, who only devoted a small part of her day to religious duties. Second, the Court fumbled in distinguishing what constitutes an “outward act” as opposed to an internal decision. A church’s decision to fire an employee for a discriminatory reason could easily be interpreted as implicating government regulation of an outward act, since acts of discrimination affect not only the individual affected but the public interest as well. Likewise, an employee smoking peyote for sacramental purposes can be interpreted as an internal personal decision and a matter of personal faith.
Ultimately, this decision narrows the rights of a large class of employees who work for religious institutions. Employees who want to advance within a religious school or church and obtain status as a “leader” or “minister” now do so at their own peril. They may be discriminated against without any legal repercussion whatsoever, as their employer can simply claim that the decision to harass, demote, or terminate the employee was an “internal church decision” protected by the First Amendment.