This
is my third, and for the moment final post on some views expressed at
It
is very long, and not so entertaining, here and there, and I have decided to
give you a take-home assignment on it, so don't worry.
One
of hr-forum-ccu.blogspot.com/’s
creators, the Rev. Craig B. Mousin*, is encouraged by this decision to think
that there are new possibilities flowing from it that will allow religious
colleges and universities to better follow both civil and religious “laws,”
mainly by offering foreign ministers employment opportunities in the United
States, without government interference, on the basis of what is known as the
“ministerial exception.”
My
view of the same case is that the language used by the Supreme Court in
deciding it should be very encouraging to adjunct and contingent faculty at
Catholic colleges and universities—and at other religious schools—as they
undertake to improve their currently unacceptable working conditions.
I
take a broader view. This is, clearly, an interesting moment for Catholic
colleges and universities, and for adjunct and contingent faculty, because three Catholic schools are currently
contesting three decisions by the National Labor Relations Board to recognize
as legitimate attempts by part-time adjunct faculty to organize unions.
Now, by the way, before I forget, also have a look at yesterday's Motley Monk post, which has a view that should be considered: I don't agree with this particular post, but it's interesting.
Now though, my main idea is this: I think Hosanna-Taber has a direct bearing on legal thinking in such matters.
What’s
the right thing to do? What does the secular law demand or tolerate? How do
these things mesh with “religious freedom,” including the “ministerial
exception” and other exemptions connected to First Amendment guarantees?
But,
let's see. To the case itself.
The
Case: The “Called Teacher” and the Ministerial Exception
Cheryl
Perich, a “Called Teacher,” with a “Diploma of Vocation” carrying the status of
“commissioned minister” in the Lutheran Church-Missouri Synod, taught various
grades at the Hoassana-Tabor Evangelical Church School, including math,
language arts, social studies, science, gym, art, and music. She also taught a
religion class, through 2004, and also led prayer and devotional services for
students, daily. She even sometimes led the weekly school-wide chapel service.
Perich,
beginning in June 2004 to suffer symptoms diagnosed as narcolepsy, asked for
and received disability leave for a short period, and then asked at the
beginning of 2005 to be reinstated in her job. She found that the school had
contracted a “lay teacher” to fill the position, and also that the school was
concerned about her illness and how it might affect her ability to teach.
Unwilling
to resign, Perich protested that she was, or soon would be, capable of work,
but she was fired. She then sued the school, with the help of the Equal
Employment Opportunity Commission, and alleged violations of her rights under
the Americans with Disabilities Act.
Hosanna-Tabor
countered, with a claim for the "ministerial exception," which
concerns employment matters between ministers and religious institutions,
allowing the latter almost complete liberty in regard to employment disputes.
The
school asked for a summary dismissal.
The
District Court, seeing that the “ministerial exception” indeed appeared
appropriate—Perich was, after all, a “Called Teacher” and a leader of religious
services—granted a summary judgment in favor of the school.
EEOC
appealed, to Sixth Circuit Court of Appeals, and that court quickly sent it
back to the district, asking the lower court to look again at the merit’s of
Perich’s claims, and giving its opinion that Perich wasn’t really a
"minister" under the “exception,” because her duties as a “called
teacher” were just too much like her duties as a “lay teacher.”
The
Supreme Court, on getting Hosanna-Tabor’s appeal of this decision, was then
faced with the same challenge as the lower courts: was Perich a “minister” or
not?
This
means that the highest court in the land had to make some kind of decision as
to what was and what wasn’t “religious.”
Justice
Roberts Reviews the Ministerial Exception
The
decision, to accept the “ministerial exception” claimed by Hosanna-Tabor, was
unanimous, and the decision was written mainly by Chief Justice Roberts, with
two concurring but clarifying/stipulating comments being offered by 1) Justice
Thomas and 2) Justice Alito, with Justice Kagan.
Justice
Roberts made clear what the main point was, early on:
Since
the passage of Title VII of the Civil Rights Act of 1964 . . . . the Courts of
Appeals have uniformly recognized the existence of a "ministerial
exception," grounded in the First Amendment, that precludes application of
such legislation to claims concerning the employment relationship between a
religious institution and its ministers.
Roberts
also rejected one argument, from EEOC and Perich, involving members of the
Native American Church who had been denied state benefits after being fired for
drug violations involving the drug peyote, which is a NAC sacrament. Insofar as
the Supreme Court had upheld this treatment of the NAC members, the logic of
the argument was simple enough: the court had itself affirmed the supremacy of
Federal law in at least one case of “religious” expression.
The
Chief Justice, though, defended the state’s right to deny benefits to the NAR
members. Even though the peyote may well have been “ingested for sacramental
purpose,” he wrote, the right of free speech, in this case meaning the right to
a “religious exemption” does not
.
. . relieve an individual of the obligation to comply with a valid and neutral
law of general applicability on the ground that the law proscribes (or
prescribes) conduct that his religion prescribes (or proscribes).
And
now, back to the Ministerial Exception,” and who qualifies. As Roberts saw it,
the lower courts have never limited the category of “minister” to, for
instance, the “head of a religious congregation,” and he was “reluctant,”
furthermore, “to adopt a rigid formula for deciding when an employee qualifies
as a minister.”
A
"rigid formula" was not necessary, however, in the present case, and
he easily found Perich to be a “minister.”
This
clearly required, if not a rigid formula, that he somehow make a distinction
between “religious” and “secular” functions, which he easily did, as follows:
1)
The Hosanna-Tabor School itself categorized Perich as a “minister,” someone who
held a "diploma of vocation," and gave her the title "Minister
of Religion, Commissioned."
2)
Perich herself accepted that she was a “minister of the Church” by accepting
her religious titles, teaching religious lessons to students, taking part in
and even leading religious services, and even claiming a specific housing
allowance on her taxes, available only to ministerial employees
According
to Roberts, furthermore, the 6th Appeals Court had muddied the waters by, for instance, giving “ too
much weight to the fact that lay teachers at the school often performed the
same religious duties as Perich,” and by placing “too much emphasis on Perich's
performance of secular duties.”
Roberts
also considered the amount of time Perich devoted to either “religious” or
“secular” tasks.
It
is true that her religious duties consumed only 45 minutes of each workday, and
that the rest of her day was devoted to teaching secular subjects.
However,
this had no bearing on Perich’s status as a “minister,” and this seems to be
the thrust of Roberts’ argument. That status was unchallenged, and Perich’s
firing was protected, after all, by the “ministerial exception.”
It
is the status of the person, as a “minister” or not, which is at issue, it
seems, and indeed, Roberts wrote that “a purely secular teacher would not
qualify for the "ministerial" exception.” Apparently, anyone who is a
“minister” in Federal employment law is a such a "minister" without
regard to whatever or however much he or she also performs "secular"
functions.
Roberts
therefore held the opinion that Perich, being clearly a “minister,” was not
within her rights to pursue a suit against the employers who took her on as a
“minister.” In conclusion, the Chief Justice also pointed to what he saw as the
legal limits of the decision:
Today
we hold only that the ministerial exception bars such a suit. We express no
view on whether the exception bars other types of suits, including actions by
employees alleging breach of contract or tortious conduct by their religious
employers. There will be time enough to address the applicability of the
exception to other circumstances if and when they arise.
Thomas,
Alito, and Kagan: Notes on the meaning of “Minister”
Now,
to the two concurring but clarifying and/or stipulating opinions:
1)
Justice Thomas added that:
…a
religious organization's right to choose its ministers would be hollow,
however, if secular courts could second-guess the organization's sincere
determination that a given employee is a "minister" under the
organization's theological tenets.
Justice
Thomas also wrote that “the question whether an employee is a minister is
itself religious in nature,” and worried that any “civil definition of
"minister" might cross the line.
Nevertheless:
The
Court thoroughly sets forth the facts that lead to its conclusion that Cheryl
Perich was one of Hosanna-Tabor's ministers, and I agree that these facts amply
demonstrate Perich's ministerial role. But the evidence demonstrates that
Hosanna-Tabor sincerely considered Perich a minister. That would be sufficient
for me to conclude that Perich's suit is properly barred by the ministerial
exception.
2)
Justice Alito, with Justice Kagan concurring, added this comment:
…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.
Since,
for instance, the term “minister” has traditional Protestant connotations, the
court should make plain that the religious complexity of the country demands
that the “ministerial exception” apply to all types of religious
“employees.” Therefore:
The
"ministerial" exception…should apply to any "employee" who
leads a religious organization, conducts worship services or important
religious ceremonies or rituals, or serves as a messenger or teacher of its
faith. If a religious group believes that the ability of such an employee to
perform these key functions has been compromised, then the constitutional
guarantee of religious freedom protects the group's right to remove the
employee from his or her position.
Religious
autonomy means that religious authorities must be free to determine who is
qualified to serve in positions of substantial religious importance. Different
religions will have different views on exactly what qualifies as an important
religious position, but it is nonetheless possible to identify a general
category of "employees" whose functions are essential to the
independence of practically all religious groups. These include those who serve
in positions of leadership, those who perform important functions in worship
services and in the performance of religious ceremonies and rituals, and those
who are entrusted with teaching and conveying the tenets of the faith to the
next generation.
A
Wonderful Opportunity for Mission and Values
Rev.
Craig B. Mousin, in his essay on this case, “The
Messenger Matters,” holds that the decision “provided a
wonderful opportunity to merge the biblical message and Catholic Social
Teaching with mission and values in employment decisions,” and, while I
don’t contest this, I do think it is a very incomplete view of its importance.
In
his analysis, Rev. Mousin focuses on an EEOC-Perich argument, not exhaustively
settled by the court, but not persuasive to it either, that an unlimited
“ministerial exception” would permit employers to hire undocumented persons
without following the employer sanctions provisions of the immigration
laws.
Such
a limitation on the ministerial exception would set up a “conflict between the
law and the Christian religious tradition," according to Rev. Mousin,
because Christianity by default favors the “immigrant, the sojourner, the
stranger, the other.”
Laws
that prohibit hiring of the foreigner or one not designated by the national
government as authorized to work under the Immigration Reform and Control Act
of 1986 (IRCA) stand in stark contrast to such biblical understandings of
ourselves and the immigrant, and in effect, deny the faith organization’s
ability to discern whether the one it seeks to call for leadership is that
divine messenger.
The
court’s decision in the Hosanna-Tabor case, then, means that “the ministerial
exception might allow organizations to hire undocumented persons in ministerial
positions.” This is the “wonderful opportunity” with which Rev. Mousin
begins.
Imagine
university ministers who have fled their homelands seeking safety and peace in
the United States teaching the Joseph story of freedom from slavery to
leadership positions. Imagine undocumented persons who have traveled from
Central America crossing deserts and suffering hardship leading a Bible study
on the Exodus for university students. Imagine a university minister
preaching the story of Joseph, Mary and Jesus fleeing the sovereign’s violence
after Jesus’ birth, when that very minister, forced into exile by
state-sponsored violence, sought liberty and shelter within the United States.
Well,
I am perfectly happy to imagine all that sort of thing, though I also wonder:
surely some goodly percent of these suffering people should also qualify for
political asylum, no? Without any reference at all to the “ministerial
exception.”
But
Rev. Mousin asks “Why not seize this opportunity to seek ways to ameliorate the
process [of legal immigration] within the legal parameters?”
Again,
ok, go for it.
My
question, though, is this: why not seek to ameliorate the working conditions of
adjuncts and contingents at religious colleges and universities, something that
doesn’t require a Supreme Court decision, something that’s certainly perfectly
legal, and something that comports very nicely with this and that “biblical
message,” and certainly with Catholic Social Teaching.
And
this is where, I think, the Court’s language in Hosanna-Tabor may be very
helpful to the adjunct-contingent cause. And I am encouraged to think so
even more, by the way, by the tone of a David Skeel column in the Wall Street Journal, wherein he seems
terribly upset by what he styles the adoption of the “stingiest plausible
interpretation of the Constitution's protections for religion.”
What
can he mean? I think I know, and it gladdens my heart.
The
Supreme Court knows the difference between “religious” and “secular.”
Some
of them may pretend, in legal cases to come, that they don’t, but certainly in
the Hosanna-Tabor case, the Supreme Court appeared to have no
difficulty whatsoever making a distinction between the two spheres.
Recall,
for instance, Justice Roberts firm view that “a valid and neutral law of
general applicability” can trump a “religious” claim. In fact, I was sorry
to see the Native American Church dealt with in this specific matter, just as I
was sorry to read that “Called Minister” Perich could not find a solution to
her specific personal difficulties in a “legal” manner.
On
the other hand, I mean, hey-put that in your pipe and smoke it: the whole court
can tell the difference between a valid and neutral law of general
applicability, and one that imposes an unconstitutional intrusion into
“religious” matters.
That
sort of thing should be good for adjuncts and contingents, I think, who can now
point to Justice Robert’s view that “a purely secular teacher would not
qualify for the "ministerial" exception,” and then ask this:
well, should purely secular faculty be prevented from seeking better working
conditions on the basis of unspecified “religious” exemptions claimed by the
employer?
Perhaps
Justice Thomas’ comment can illuminate this point. Remember he seemed anxious
on the point of who is and who is not a “minister,” writing that the question
in his mind “is itself religious in nature.” By his argument, the evidence
showed that “Hosanna-Tabor sincerely considered Perich a minister,” and that “
would be sufficient for me to conclude that Perich's suit is properly barred by
the ministerial exception.”
So,
what, exactly, else, would be sufficient for Justice Thomas here? To have a
religious group claim to sincerely believe that the janitor is a minister? That
an adjunct professor of political science is a minister?
But
even Justice Thomas seems to understand that it’s absolutely crucial, in a
“religious” case, to make some judgment about what is and what isn’t
“religious.”
He
doesn’t want to, but he has to, and he even writes that “The Court
thoroughly sets forth the facts that lead to its conclusion that Cheryl Perich
was one of Hosanna-Tabor's ministers.”
And
the Allito/Kagan opinion? It basically gives us a perfectly serviceable
approach to “civil” definitions in religious cases, holding that the
ministerial exception must apply to any employee who “conducts worship
services or important religious ceremonies or rituals, or serves as a messenger
or teacher of its faith.”
Rejoice,
overwhelmingly non-ministerial adjunct and contingent faculty at “religious”
colleges and universities! The Alito/Kagan language pretty clearly defines a
category of which you are certainly not a member:
a
general category of "employees" whose functions are essential to the
independence of practically all religious . . those who serve in
positions of leadership, those who perform important functions in worship
services and in the performance of religious ceremonies and rituals, and those
who are entrusted with teaching and conveying the tenets of the faith to the
next generation.
This
court, at least in this decision, is not having any trouble figuring out the
difficulty between religious and secular functions. This is in spite of Justice
Roberts' distaste for a ‘rigid formula” and in spite of Justice Thomas’s fear
of a “civil definition.”
They
can figure it out. And they have.
The
Court's decisions in future, I hope, will 1) allow employees of religious
colleges and universities to do whatever they can legally do by way of
demanding improved working conditions while 2) doing nothing at all, unless you
need peyote in your sacraments, to interfere with religious practice—including
the implementation of your own clearly stated religious obligations to repair
damage caused by unjust and inequitable practices.
*
Rev. Craig B. Mousin, is University Ombudsperson at the nation’s largest
Catholic University, DePaul University (since 2001), and is also,
interestingly, an ordained minister of the United Church of Christ.
