WASHINGTON, D.C. - (Mealey's) A teacher who taught a
religious class, led worship and led prayer was a commissioned minister, and
her employment falls within the First Amendment to the U.S. Constitution's
ministerial exception, a unanimous U.S. Supreme Court ruled Jan. 11, reversing
a Sixth Circuit U.S. Court of Appeals ruling (Hosanna-Tabor Evangelical
Lutheran Church and School v. Equal Employment Opportunity Commission, et al.,
No. 10-553, U.S. Sup.; See October 2011, Page 5) (lexis.com subscribers may access Supreme Court briefs for this case).
"In reaching a contrary conclusion, the Court of Appeals
committed three errors. First, the Sixth Circuit failed to see any
relevance in the fact that [teacher Cheryl] Perich was a commissioned
minister. Although such a title, by itself, does not automatically ensure
coverage, the fact that an employee has been ordained or commissioned as a
minister is surely relevant, as is the fact that significant religious training
and a recognized religious mission underlie the description of the employee's
position. . . . Second, the Sixth Circuit gave too much weight to
the fact that lay teachers at the school performed the same religious duties as
Perich. We express no view on whether someone with Perich's duties would
be covered by the ministerial exception in the absence of the other
considerations we have discussed. . . . Third, the Sixth Circuit
placed too much emphasis on Perich's performance of secular duties," Chief
Justice John G. Roberts Jr. wrote for the court.
All the justices joined in the opinion.
Perich was hired by Hosanna-Tabor Evangelical
and School as a contract kindergarten teacher in July 1999. Her contract
was from Aug. 15, 1999, until June 15, 2000. After Perich completed a
required colloquy class at Concordia
College in February 2000,
she was hired as a called teacher in late March 2000. Called teachers are
hired by the voting members of the Hosanna-Tabor church congregation upon the
recommendation of the board of education, board of elders and board of
directors. Called teachers are hired on an open-ended basis and cannot be
dismissed without cause.
After Perich was hired as a called teacher, her duties
remained the same as those she performed while she was a contract
teacher. She taught math, language arts, social studies, science, gym,
art and music. She also taught a religion class four days per week for 30
minutes and attended a chapel service with her class once a week for 30
minutes. Approximately twice a year, she led the chapel service in
rotation with other teachers. Perich also led each class in prayer three
times a day for a total of approximately five or six minutes.
At a church golf outing in June 2004, Perich suddenly
became ill and was taken to the hospital. Despite a series of medical
tests, Perich's doctors still had not come up with a cause for her illness two
months later. Hosanna-Tabor administrators suggested that Perich apply
for a disability leave of absence for the 2004-05 school year. Principal
Stacy Hoeft told Perich that she would "still have a job" when she regained her
health. Perich agreed to take a disability leave.
On Dec. 16, 2004, Perich informed Hoeft via email that
her doctor had given her a diagnosis of narcolepsy and that she would be able
to return to work in two or three months once she was stabilized on medication.
On Jan. 21, 2005, Hoeft told Perich that the school board
intended to amend the employee handbook to request that employees on disability
for more than six months resign their calls. She stated that such
resignations would not necessarily prevent reinstatement of these employees'
calls once they were healthy. Perich had been on disability for more than
five months at the time she received the email.
Return To Work
Six days later, Perich emailed Hoeft and informed her
that she would be able to return to work sometime between Feb. 14 and Feb.
28. Hoeft expressed concern that Perich's condition would threaten the
safety of her students. In addition, Hoeft notified Perich that she would
not be able to return to her classroom because the substitute teacher they had
hired to replace her had a contract that ran through the end of the school
Three days later, at the annual congregational
"shareholder" meeting, Hoeft and the school board opined that Perich would
unlikely be physically capable of returning to work that school year or the
next. The congregation adopted the board's proposal to request that
Perich accept a peaceful release agreement stipulating that Perich would resign
her call in exchange for the congregation paying for a portion of her health
insurance premiums through December 2005.
On Feb. 8, Perich's doctor gave her a written release to
return to work without restrictions on Feb. 22. The following day, School
Board Chairman Scott Salo contacted Perich to discuss the congregation's
decision. Perich requested to meet with the entire board. During
the meeting on Feb. 13, the board presented the peaceful release proposal, and
Perich presented the release from her doctor. Despite the written
release, the board requested that Perich resign and gave her until Feb. 21 to
Late in the evening on Feb. 21, Perich emailed Hoeft that
she was not resigning and that she would return to work the following
morning. When Perich reported to work on Feb. 22, the school did not have
a position for her. Perich refused to leave school grounds until she was
provided a letter stating that she appeared for work. Hoeft and Salo
signed off on a letter stating that Perich had provided improper notification
of her return to work and asking that she continue her leave to allow the
congregation a chance to develop a possible plan for her return.
On March 19, Salo sent Perich a letter stating that based
on Perich's insubordination and disruptive behavior on Feb. 22, the board would
request rescinding Perich's call at the next voters meeting on April 10.
The letter also reiterated the peaceful release offer and gave Perich until
April 8 to accept it.
On March 21, Perich's attorney sent a letter to Hosanna-Tabor's
attorney stating that Hosanna-Tabor's actions amounted to unlawful
discrimination. On April 10, the congregation voted to rescind Perich's
call, and she was informed of her termination the following day.
Perich filed a charge of discrimination and retaliation
with the Equal Employment Opportunity Commission on May 17, 2005. On
Sept. 17, 2007, the EEOC sued Hosanna-Tabor in the U.S. District Court for the
Eastern District of Michigan, alleging one count of retaliation in violation of
the Americans with Disabilities Act (ADA). Perich moved to intervene on
March 11, 2008. She was granted leave and filed her own complaint on
April 10, 2008, which added a cause of action under Michigan's Persons with Disabilities Civil
Perich and Hosanna-Tabor each moved for summary
judgment. On Oct. 23, 2008, the District Court granted summary judgment
in favor of Hosanna-Tabor, finding that Perich's claims fell within the
"ministerial exception" to the ADA.
Perich's motion for reconsideration was denied, so Perich and the EEOC
Vacating the trial court order, the Sixth Circuit U.S.
Court of Appeals panel opined that the District Court erred when it classified
Perich as a ministerial employee. Hosanna-Tabor petitioned the high
court. Oral arguments were held Oct. 5.
Justice Clarence Thomas filed a concurring opinion
expressing that in his view, "the Religion Clauses require civil courts to
apply the ministerial exception and to defer to a religious organization's good-faith
understanding of who qualifies as its minister."
Justice Samuel Anthony Alito Jr. also filed a concurring
opinion "to clarify my understanding of the significance of formal ordination
and designation as a 'minister' in determining whether an 'employee' of a
religious group falls within the so-called 'ministerial' exception. The
term 'minister' is commonly used by many Protestant denominations to refer to
members of their clergy, but the term is rarely if ever used in this way by
Catholics, Jews, Muslims, Hindus, or Buddhists. In addition, the concept
of ordination as understood by most Christian churches and by Judaism has no
clear counterpart in some Christian denominations and some other
religions. Because virtually every religion in the world is represented
in the population of the United
States, it would be a mistake if the term
'minister' or the concept of ordination were viewed as central to the important
issue of religious autonomy that is presented in cases like this one.
Instead, courts should focus on the function performed by persons who work for
Justice Elena Kagan joined in Justice Alito's opinion.
Douglas Laycock of the University of Virginia School of
Law in Charlottesville, Va., represents Hosanna-Tabor. Sri
Srinivasan of O'Melveny & Myers in Washington
and James E. Roach of Veracrutsse, Murray & Calzone in Bingham Farms, Mich., represents
Perich. Solicitor General Donald B. Verrilli Jr. in Washington represents the EEOC.
Kevin T. Baine of Williams & Connolly in Washington filed an amicus
curiae brief on behalf of the United States Conference of Catholic Bishops,
the Church of Jesus Christ of Latter-Day Saints, the Presiding Bishop of the
Episcopal Church and the Union of Orthodox Jewish Congregations of
America. Thomas C. Berg of the University
of St. Thomas School of Law in Minneapolis filed an amicus brief on behalf of
Professor Eugene Volokh, National Council of the Churches of Christ in the USA, Baptist
Joint Committee for Religious Liberty, Queens Federation of Churches, National
Association of Evangelicals and Christian Legal Society. Megan L. Brown
of Wiley Rein in Washington
filed an amicus brief on behalf of the Religious Tribunal Experts.
Michigan Solicitor General John J. Bursch in Lansing,
Mich., filed an amicus brief on behalf
of the State of Michigan
and seven other states. Douglas R. Bush of Arent Fox in Washington filed an amicus brief on
behalf of the Muslim-American Public Affairs Council, United Sikhs, Church of
the Lukumi Babalu Aye, International Society for Krishna Consciousness, O
Centro Beneficente Uniao Do Vegetal and Templo Yoruba Omo Orisha. David
D. Hogan of Lovells in New York filed an amicus
brief on behalf of the American Jewish Committee and the Union
for Reform Judaism. W. Cole Durham Jr. of J. Reuben Clark Law School in Provo, Utah, filed an amicus
brief on behalf of the International Center for Law and Religion Studies at Brigham Young University.
Steven W. Fitschen of the National Legal Foundation in Virginia Beach, Va.,
filed an amicus brief on behalf of Wallbuilders Inc. Elizabeth L.
Hileman of Hileman & Associates in Bethesda,
Md., filed an amicus brief
on behalf of American Humanist Association and American Atheists Inc.
James L. Hirsen in Anaheim Hills,
Calif., filed an amicus brief
on behalf of the Justice and Freedom Fund. Steffen N. Johnson of Winston
& Strawn in Washington filed an amicus
brief on behalf of the International Mission Board of the Southern Baptist
Convention, Ethics and Religious Liberty Commission of the Southern Baptist
Convention, Council of Hindu Temples of North America, Mandaean Association of
Massachusetts and International
Church of the Foursquare
Stuart J. Lark of Holme, Roberts & Owen in Colorado
Springs, Colo., filed an amicus brief on behalf of American Bible
Society, Association of Christian Schools International, Association of Gospel
Rescue Missions, Awana Clubs International, Azusa Pacific University, Bethesda
Ministries, the Christian and Missionary Alliance, Christian Camp &
Conference Association, Compassion International, Crista Ministries,
Evangelical Council for Financial Accountability, Moody Bible Institute of
Chicago, The Navigators, New Tribes Mission, Trans World Radio and Upward
Sports. Nathan Lewin of Lewin & Lewin in Washington filed an amicus brief on
behalf of the National Jewish Commission on Law and Public Affairs.
Aaron D. Lindstrom in Grand Rapids,
Mich., filed an amicus brief on behalf
of Christian Colleges and Universities.
Christopher C. Lund of Wayne State University
in Detroit filed an amicus brief on
behalf of the Lutheran
Synod. Michael W. McConnell of Kirkland & Ellis in Washington filed
an amicus brief on behalf of the Evangelical Covenant Church,
Evangelical Lutheran Church in America, General Conference of Seventh-Day
Adventists, General Council on Finance and Administration of the United
Methodist Church Inc., General Synod of the United Church of Christ, Rev. Gradye
Parsons, stated clerk of the General Assembly of the Presbyterian Church U.S.A.
and Salvation Army National Corp. Robert J. McCully of Shook, Hardy &
Bacon in Kansas City, Mo., filed an amicus brief on behalf
of the American Association of Christian Schools. Edward R. McNicholas of
Sidley Austin in Washington
filed an amicus brief on behalf of Religious Organizations and
Institutions. Jay A. Sekulow of the American
Center for Law & Justice in Washington filed an amicus brief on behalf of the American Center for Law and Justice and
Intervarsity Christian Fellowship/USA. Kelly J. Shackelford of the
Liberty Institute in Plano,
Texas, filed an amicus
brief on behalf of the Jewish Educational Center, Association of Christian
Schools International and The North American Division of Seventh-Day Adventists
Office of Education. Edward H. Trent in Jacksonville, Fla.,
filed an amicus brief on behalf of the Trinity Baptist Church of
Jacksonville Inc. John W. Whitehead of the Rutherford Institute in Charlottesville filed an amicus
brief on behalf of the Rutherford Institute.
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