You’d think that, as an atheist, I wouldn’t be concerned about how the state dealt with the internal affairs of churches. Don’t have a church, so why should I give a rat’s ass? But that’s asking the wrong question. It’s like not worrying about the shredding of the Fourth Amendment because you’re not actually doing anything wrong and thus have nothing to hide. There are certain things we don’t want the state doing. Weighing the validity of religious doctrine is one of those things.
That’s the underlying concern evidence in a unanimous Supreme Court decision last week involving a private religious school, an ill teacher, and the EEOC. The church school was part of the Lutheran Church-Missouri Synod. The teacher, Cheryl Perich, was a “called” teacher (as opposed to a lay teacher), meaning she had been through religious training and was considered by the school to be part of its religious mission. She developed narcolepsy, which led to a dispute over whether she could continue to teach. When she threatened to take legal action, the school fired her.
Perich sued the church anyway (via the EEOC), for firing her based on her threat of legal action. The church sought to dismiss the suit by invoking the “ministerial exception,” a long recognized doctrine in the lower courts that said (in essence), courts won’t wade into a church’s internal business, particularly when it involves church doctrine. In this case, the church argued that by taking her dispute outside the church, Perich had violated its doctrine. And since she was a called teacher and, basically, a minister, the courts couldn’t step in and review the decision to fire her.
The Supreme Court, ultimately, recognized the ministerial exception as an outgrowth of the religion clauses of the First Amendment. Chief Justice Roberts, writing for the Court, surveyed the history of government interference in religious matters in England and the Colonies (my favorite, a missive from Henry II to electors of a bishopric in Winchester commanding them “to hold a free election, but forbid you to elect anyone by Richard my clerk” - It’s good to be the king!). Preventing that kind of interference was part of the reason for enacting the First Amendment’s religion clauses. Therefore, to the point that a court would be required to deal with issues of ministerial competence or what have you, courts have to stay out.
What the Court did not do (although the odd couple concurrence of Justices Alito and Kagan tried) was to provide some real guidance as to when this ministerial exception could be applied. A couple of inconvenient facts (one for each side) show how difficult it could possibly be to figure that out. On the side of the church, the inconvenient fact is that while Perich was a called teacher, her job description was identical to that of the lay teachers, who were not called, or even required to be Lutheran. Given that, why should Perich’s status of being “called” really make a difference? As for Perich, her unfortunate fact is that before this dispute arose she had claimed ministerial status in order to get tax benefits. While that doesn’t answer the question of her status, it at least makes it unclear enough to that caution dictates the courts shouldn’t wade into it.
It will be interesting to see how the lower courts grapple with the scope of the exception. Of course, they’ve been doing it for some time, so it might not be as vague as some are making it out to be. It’s also worth noting that, contrary to what I’ve read in some heated ‘Net comment sections, the decision does not allow churches to discriminate at will against any employee. Only those arguably involved in the church’s core function would be covered. Of course, how broad is any given church’s function? That’s the rub.
Ultimately, the religion clauses of the First Amendment reflect the same fear that the Free Speech clause does when it comes to state regulation. It’s not that bad things are done under the auspices of speech or religion that most people would want regulated. It’s that we don’t trust the state to sort correctly between the good stuff and the bad. Rather than risk the state getting it wrong, we let the market handle it, to the extent it can. Whether that’s born of some ideological position or simply a recognition of how the real world works, you get the same place in the end.
It’s often noted, amongst my unbelieving brethren, that religion isn’t an immutable trait like race, gender, or sexual orientation. Given that religious practice involves choice and free will, why should it enjoy protected status? Whatever arguments for or against that idea, in the United States the decision was made long ago. The First Amendment does put religion in a special place in our society when it comes to how the law deals with it. Maybe it shouldn’t, but it would take more than a Supreme Court case to change it.