Thursday, October 6, 2011

Local church-state case before Supreme Court: A roundup

Posted By on Thu, Oct 6, 2011 at 5:09 PM

The day after the U.S. Supreme Court heard oral arguments in his client’s case, Bingham Farms attorney James Roach was touring Washington D.C., strolling on the national mall and admiring the glorious architecture.

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But Roach stopped to discuss by phone his case: The dispute that is forcing clarification from the high court about how to balance individual’s civil rights as employees against religious institutions’ constitutionally guaranteed ability to operate free of secular laws. (The case was the subject of a Metro Times cover story, "Court and cross,"  July 13, 2011.)

“It was an interesting experience,” Roach said of Wednesday’s  hour-long Supreme Court hearing.

The case involves a Redford school teacher, Cheryl Perich, who was fired after she threatened legal action against the Hosanna-Tabor Evangelical Lutheran Church for not allowing her to continue teaching after medical leave. The church argues that going outside of its internal dispute resolution process to the courts violates a religious tenet and is grounds for dismissal.

Perich and Roach, joined by the Equal Employment Opportunity Commission, argue that religious institutions are not exempt from employment discrimination laws in such disputes.

It’s tricky because since civil rights laws were enacted, some appellate courts have created the “ministerial exception” that allows religious institutions some exemptions from the law. That’s what allows priests, Orthodox rabbis and imams to be solely men, and churches, for example, to hire only followers of the specific faith for certain positions.

The church maintains Perich should be considered a minister. She contends that because she taught mainly secular subjects and had limited religious duties, she was not.

But through that disagreement, Perich’s case brought the competing interests of employment law versus religious freedom as enacted by an employer to the nine justices. They vigorously questioned church attorney’s and Perich’s legal representatives during the hearing, Roach said.

The church’s attorney, Douglas Laycock, of the University of Virginia, was presented with hypotheticals, Roach described: What if an employee at a religious institution was fired for reporting abuse to police authorities? That would be outside of the church’s internal dispute resolution structure.

“It was obvious to everyone in the room, I believe, and certainly the justices that abuse requires some kind of reporting,” Roach said. “At the end of Laycock’s presentation, I was feeling pretty good.”

But Perich’s side was hit equally as hard. The justices seemed reluctant to restrict the men-only hiring capabilities, Roach said, because that prohibition would lead them into adjudicating religious beliefs.

“You can’t challenge people’s religious beliefs,” Roach said. “As soon as you start, you lose under the Constitution.”

Justices Antonin Scalia and Samuel Alito were “quite clear” in their sympathies with the church, Roach said, but other justices weren’t as predictable. “There’s some hope,” he said. “The others are still open questions.”

While faith-based media have been writing about the issue for months, yesterday’s hearing offered more mainstream organizations the opportunity to cover the case. Here’s a round up of some of the coverage, starting with what we thought was some of the most extensive at Slate and  strong coverage at the Education Week site and The Christian Science Monitor.

According to Education Week, Leondra Kruger, an assistant solicitor general representing the EEOC and the Obama administration, was quoted saying, "We think that the ministerial exception is one that incorporates the right of association as well as the rights under the religion clauses.”

She added: The government has a strong interest in telling the church school "that it may not punish its employees for threatening to report civil wrongs to civil authorities. That is an interest that we think overrides the burden on the association's religious message about the virtues of internal dispute resolution as opposed to court resolution."

The position of the Obama administration “astounded” Justices Antonin Scalia and Elena Kagan.

“[It’s] amazing that you think that neither the free exercise clause nor the establishment clause has anything to say about a church's relationship with its own employees,” Kagan said to Kruger according to the Christian Science Monitor.

According to Slate, Scalia added: “There is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization

but here, black on white in the text of the Constitution, are special protections for religion.”

The dilemma of who is exactly a “minister” apparently dumbfounded just about everyone in the room, according to Education Week. And by the end of the morning, according to Slate, Justice Stephen Breyer delivered a seeming majority consensus by proclaiming, “I’m stuck.”

The decision is expected to be handed down from the Court by June.

(Metro Times editorial intern Ryan Felton contributed the coverage roundup to this blog post.)

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