Religious Immunity

January 30, 2012 § Leave a comment

Executive Summary

On January 12, 2012, the Supreme Court rendered a unanimous judgment in Hosanna-Tabor v. Evangelical Lutheran Church and School v. EEOC, No. 10-553.

The Court held that the First Amendment’s “Establishment Clause” and “Free Exercise Clause” precluded any relief for Ms. Cheryl Perich, who claimed she was fired from her teaching job because of her narcolepsy, a medical condition from which she had recovered.  She had a release from her treating doctor to return to work.  She also claimed her discharge was retaliation for seeking remedies based on the Americans With Disabilities Act.  Her employer denied that her narcolepsy was the reason for her discharge.  It claimed she was right about the retaliation because the church had a rule against seeking a legal remedy for any claim of harm committed by agents of the church.  They claimed they had a right to fire her for threatening to take them to court.  The Court agreed.

Chief Justice Roberts, writing for six members of the Court, held that, because she had been hired as a “called” employee (one chosen by the congregation based on her previous religious training and designated as a “Minister of Religion, Commissioned), she was bound by the “tenets of the Church”, one of which was that an aggrieved person should not seek a legal remedy for a claimed wrong but should, instead, content herself or himself with internal remedies provided by the Church.  Justices Scalia and Thomas concurred in the result but would have broadened the scope of the immunity stated in the majority opinion.  Justice Bryer would have decided the case on narrower grounds than the majority opinion.

I disagree with the Court’s decision because, first, it extends immunity to indefinable  private  unregulated bodies who are free to call themselves “churches” and to make up rules to fit their whims; second, it permits religious groups to trump civil law in whatever manner and to whatever extent it suits them; and third, it leaves a broad and ill-defined category of employees of religious institutions without any meaningful remedy for harm suffered at the hands of their employers.

The Immunity Defense

Immunity is a concept at odds with our system of justice.  It is historically based on the notion that “the king can do no wrong” based, in turn, on the belief that rulers derive their authority from God.  This “king’s X” is an ill-fitting transplant in our secular culture based on the idea that government is not authenticated by God, but by the “consent of the governed”.

Immunity is granted to government agents based on fear that judgments for damages might interfere with the ability of those employers to fulfill their duties to those who depend on them for services.  I believe this is a questionable fear, given the availability of liability insurance and the possibility of imposing reasonable limits on tort liability instead of leaving tort victims without any remedy.

In the cited decision, the Court set up a table full of “king’s X” badges and invited all persons who can design a cloak for themselves labeled “church” to come by and pin one on.  I have no doubt that the RSVP’s will be forthcoming in a flood.  Every employer would like to have the “flexibility”, to use their favorite word to describe it, to fire any employee at any time for any or no reason without any concern for the consequences.

Religious Freedom and The First Amendment

There is no enforceable definition of a “church”, nor should there be.  The government has no business dictating what a person or a group of persons can  worship and how they choose to do it.  But, the importance of that limit on government’s power is the reason that the Supreme Court’s expansion of this immunity doctrine is so pernicious.  Religious freedom is vital to our constitutional democracy, but its preservation depends on the separation of secular governmental policy from religious doctrine.

The Court has now granted authority to religious bodies to decide which civil laws they will obey and the one the Lutherans chose not to obey was the one granting a judicial remedy for the violation of rights protected by any civil law.   Instead of proceeding seriatum, they chose judicial Kryptonite.  I am astonished that all nine of the lawyers on the Supreme Court concluded that was just fine.

The Court cited a brief passage from Paul’s letter to the Corinthians as the Lutherans’ basis for a rule banning its agents from seeking judicial resolution of disputes with the church.  Here is Paul’s scolding of the fledgling group of Christians in Corinth, thriving in the hostile environment of a Roman colony occupied and ruled by the military power of Rome:

If any of you has a dispute with another, do you dare to take it before the ungodly for judgment instead of before the Lord’s people? 2 Or do you not know that the Lord’s people will judge the world? And if you are to judge the world, are you not competent to judge trivial cases? 3 Do you not know that we will judge angels? How much more the things of this life! 4 Therefore, if you have disputes about such matters, do you ask for a ruling from those whose way of life is scorned in the church? 5 I say this to shame you. Is it possible that there is nobody among you wise enough to judge a dispute between believers? 6 But instead, one brother takes another to court—and this in front of unbelievers!  7 The very fact that you have lawsuits among you means you have been completely defeated already. Why not rather be wronged? Why not rather be cheated? 8 Instead, you yourselves cheat and do wrong, and you do this to your brothers and sisters. 9 Or do you not know that wrongdoers will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor men who have sex with men[a] 10 nor thieves nor the greedy nor drunkards nor slanderers nor swindlers will inherit the kingdom of God. 11 And that is what some of you were. But you were washed, you were sanctified, you were justified in the name of the Lord Jesus Christ and by the Spirit of our God.

As I understand this language, Paul was advising the faithful that if you are harmed at the hands of a fellow member of the church, it is best to just grin and bear it, but if you must seek a remedy, just go to some other member and accept his (or her?) judgment.  On no account go to court.

I find the Court’s willingness to allow this language to be a sufficient reason t  o deny a remedy for violation of a federal law  to be puzzling.   A few sessions ago, some members of the Court expressed outrage over references to laws of other nations.  The Oklahoma Legislature became so hysterical that they adopted a law prohibiting the practice of Sharia Law in the state of Oklahoma.  Here, preemptive authority is granted to the opinions of an organizer of an insurgent religious group, expressed about 58 AD to a relatively small group of believers located on a narrow isthmus connecting the mainland to southern Greece.

I pause here to state my devotion to the right of our citizens to follow whatever religious ideas they find appealing.  If the Lutherans had chosen to punish or impose some sanction on Ms. Perich  for her unwillingness to agree with some doctrine related to some religious matter, I would have no objection.  But for a church to simply declare their hostility to our entire judicial system seems beyond any reasonable limits on religious freedom.

Paul’s instruction to the Corinthians is understandable to me because he was convinced that the end of the world and the return of Christ to summon the faithful to heaven was imminent.  Thus, concern about worldly rights and property was of  little consequence.  When one thinks he or she has only a short time to live, property rights and resolution of pending disputes become, as Paul said, “trivial”.    After two thousand years of waiting, however,  his instructions are less appropriate.   In 58 AD, his scolding was very connected to a central theme of Christianity:  the resurrection of Christ and the promise of his return.  That extravagant hope was a vital part of his organizing effort.

In today’s America, the notion that Christianity requires that kind of indifference toward personal and property rights is no longer required by any religion of which I am aware.  I doubt that modern religious organizers would have much success if they presented such a doctrine as a necessary precondition to joining their churches.

The Court’s Stretch of the First Amendment’s Protection

In order to reach its conclusion and to reconcile it with previous rulings, the Court ruled that it was not necessary for a church to have a religious reason for firing a “minister”.  The Court wrote:

“The EEOC and Perich suggest that Hosanna-Tabor’s asserted religious reason for firing Perich—that she violated the Synod’s commitment to internal dispute resolution—was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church’s decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful—a matter ‘strictly ecclesiastical,’ [citation omitted]—is the church’s alone.”

This statement, I contend, cut the Court’s grant of immunity loose from the First Amendment.  That amendment states, “Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof; . . . .”  If religion has nothing to do with the reason for the challenged action, what does it have to do with the “free exercise” of religion?  There was no valid reason for the Court to empower every group calling itself a church to pick and choose which laws they would obey with respect to their employees.

“Minister” is Not a Technical Term

The subject decision would not be so obnoxious if it applied only to the right of a congregation to hire and fire a preacher.  Ms. Perich, however, was not a preacher.  She was given the title of “Minister”, but she spent only forty-five minutes a day on religious instruction. Here is the Court’s description of Ms. Perich’s duties:

“Perich taught her students religion four days a week, and led them in prayer three times a day. Once a week, she took her students to a school-wide chapel service, and—about twice a year—she took her turn leading it, choosing the liturgy, selecting the hymns, and delivering a short message based on verses from the Bible. During her last year of teaching, Perich also led her fourthgraders in a brief devotional exercise each morning.”

This description looses some of its significance when we learn, as the Court acknowledged, that other teachers, who were not “called” or “ministers” performed identical tasks.  It also raises interesting questions about the application of the Court’s decision to other religions.  For example, every Muslim is considered to be a “minister”.   I don’t believe Buddhism has any formal hierarchy of religious leaders.  Given the broad offer of immunity  in the Court’s decision, it is easy to predict that the bar for qualifying an employee as a “minister” will be a low one.

The significant point is that complying with the ADA would not have affected, in any way, Ms. Perich’s faith or her ability to perform all of the duties of a teacher, “called” or not.


I have defended the First Amendment several times and I believe it is the primary reason for the longevity and strength of our country.  I do not approve of its use by the present Supreme Court, in the name of religious freedom, to deprive a class of employees of their rights for reasons that have nothing to do with religion but everything to do with  the apparent intention of some members of the Court to undermine every major protection of individual rights accomplished since 1937.

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