Unintended Consequences: Religious Freedom, Unless You're a Minister

This week, the Supreme Court unanimously decided in favor of religious institutions being able to make decisions about who they hire and fire, without government interference. While this is certainly a strong decision in favor of religious freedom, I think that those who are heralding this as a resounding success for religion as a whole are missing the point. While this decision does protect the rights of a religious institution, I think that it does so at the expense of ministers' rights.

Background
I don't follow Supreme Court cases very closely, but this week two of my Facebook friends led me to links about a recent case which was being portrayed as a key decision in favor of religious freedom against an administration that was seeking greater government control over religious institutions. The articles they pointed to are here, here, and here.

Now, none of these articles actually describe the specifics of this case - specifically, why she was fired - which instantly caused me to think there was more to the story. A quick search brought me to the actual Supreme Court decision and to this PBS Newshour discussion of the topic:



In short, here are the specifics of the case as I understand them:

• Cheryl Perich was a "lay teacher" at  Hosanna-Tabor Evangelical Lutheran Church and School. 
• She underwent extra religious training to become a "called teacher," which includes an official title of "Minister of Religion, Commissioned."
• Perich developed narcolepsy and began the 2004-2005 school year on medical disability leave.
• She tried to return in February, but was told a lay teacher was filling her position through the remainder of the year.
• She was offered a deal on medical benefits if she agreed to resign. 
• She refused to resign and showed up for work in February, refusing to leave until she received written documentation that she had come in for work.
• She was told that she was going to be fired, at which point she said that she had rights under the American with Disabilities Act.
• Because she was disruptive, insubordinate, and had threatened legal action - and in general damaged her "working relationship" with the church and school - the school fired her.
• She filed a lawsuit on the basis that she had been fired for her disability and threatening legal action. (You normally can't be fired for threatening to exercise your rights under ADA.)

The Supreme Court has never officially ruled on whether labor laws apply to religious officials, but the lower courts have long recognized a "ministerial exemption" to labor laws. Perich lost the first case, but on appeal she won, because the appeals court decided that she didn't really count as a "minister." This is what brought it to the Supreme Court, whose ruling was:

1. Yes, Perich did count as a minister.
2. Yes, there is a ministerial exemption to the ADA (and, presumably, other workplace discrimination laws)
3. No, we aren't going to clearly define what a minister is. That will be left for each individual case. These cases can still be brought to court.

It should be noted that this was a unanimous decision.

Is This a Religious Question?
Let me first say that I do think the court's unanimous decision on this was the right one. The Constitution clearly lays out religious exception from federal control, and the justices across the board ruled that this shouldn't be tampered with.

Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.  Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.  According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

However, part of the reason that this case is so powerful is that the circumstances are not at all religious. This minister/teacher wasn't fired for violating any sort of religious code, or because she did not "personify its beliefs."

She was fired because she had narcolepsy and they replaced her while she was on medical leave.

As far as I can tell, if she had remained a "lay teacher" and had never gone to the trouble of being classified as a "called teacher," she would have been fully protected under the Americans with Disabilities Act, because the "ministerial exception" wouldn't have applied.

So, in other words, the very fact that she became a minister robbed her of certain rights!

Because of this, it looks like the EEOC took the tactic of arguing not only that she wasn't a minister, but that even if she was a minister, the ministerial exemption wouldn't apply. The justices had no choice but to knock aside such an argument and they did so unanimously.

But what exactly are the consequences of this decision?

Churches Can Discriminate
What intrigues me about this case is that, if I understand it correctly, it has basically codified that ministers cannot have any legal job protection. It is, in essence, placing the rights of the religious institution above the rights of the individual religious person. (This is assuming, of course, that you concede the point of the American with Disabilities Act, that Americans have a right to not be discriminated against because of having a disability.)

The irony of this really cannot be overstated.

The one place in America where a person with a disability has no legal rights against discrimination is if they choose to become a minister for a church.

Concern 1: Unethical Churches
My wife brought up one concern immediately. Having grown up evangelical, she is used to churches that talk about "ministry" in very sweeping terms. She pointed out that she could well imagine unethical churches writing their contracts so the janitors are serving a ministry of cleanliness, or the secretaries are serving a ministry of organization.

I'm not too concerned about this sort of maneuver. The decision does point out that "... such a title [as minister], by itself, does not automatically ensure coverage [under the ministerial exemption]..." There's no indication within the decision that a janitor would fall under the ministerial exemption (although Justice Thomas's brief on the case apparently says that courts shouldn't second-guess a church's designation of who is or is not a minister).

Concern 2: The Disabled Minister
No, my bigger concern is that this ruling will have a negative impact on religious people exercising their individual religious convictions.

For example, let's consider a person who has a disability and feels a calling to go into religious work as a minister. Let's assume this person knows that their disability will, at some point, require them to go on leaves of absence for surgery or other forms of treatment.

This court decision now places an added burden on that person, because they will be foregoing all legal protections to which they would have been entitled if they'd gone into another field. When they go on medical leave, they'll have to wonder if they'll come back to find that they've been replaced. They'll have to go to the added trouble of negotiating all of these things into their contracts up front, instead of relying on the ADA to protect them. (The Supreme Court decision makes it clear that churches can still be targeted with non-discrimination lawsuits, such as those for breach of contract or worker injury claims.)

The decision to go into the ministry always involves sacrifice (unless you're making millions of dollars running a megachurch or television ministry) but this decision seems to me that it is removing from ministers a right which everyone else in the country has: the right to be protected from job discrimination based on disabilities.

And in all of the stories where people are declaring this as a victory for religious liberty, that message seems to be getting lost.