Supreme Court Says Religious School Can Fire Teacher for Illness
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Roberts’ opinion rejected the Appeals Court’s argument that the “ministerial exception” didn’t cover Perich, who had performed similar responsibilities for Hosanna-Tabor in the years before and after she was ordained by congregational vote as a “called teacher.” The Appeals Court had cited as evidence that Perich spent most of her time on secular teaching responsibilities, that the teacher brought in to replace her had not been ordained as a “called teacher,” and that “Perich’s employment duties were identical when she was a contract teacher and [later when she was] a called teacher.” Roberts declined to issue a standard for assessing who falls under the exception for future cases, but cited Perich’s ordination, and her responsibility for some religious education, and for leading religious services twice a year, as evidence that the exception applies to her and thus leaves her outside the protection of the ADA.
Roberts’ opinion was joined by five of his fellow justices. Justice Samuel Alito, in a concurring opinion joined by former Obama Solicitor General Elena Kagan, agreed that Perich fell under the ministerial exception but set forth an approach to determing who else falls under it that puts less weight on ordination, because its meaning varies across religions. Justice Clarence Thomas issued his own concurrence arguing that the Court should generally defer to churches’ view of which of their employees fell under the exception, because the act of weighing who is a religious employee itself infringes on the church’s religious freedom.
In its legal argument, Hosanna-Tabor explicitly identified Perich's mention of a potential lawsuit as cause for her firing. The church argued that firing Perich over threatening an ADA lawsuit was related to its religious mission because involving the ADA violated the Lutheran Church’s religious belief that such disputes should be handled internally. Perich charged that this argument, made after the firing, was an excuse. Roberts ruled that the ministerial exception would apply whether or not Perich's mention of a lawsuit was the reason for her termination.
In finding Hosanna-Tabor had the right to fire Perich, the nine Justices sided against the Obama administration, whose Solicitor General Donald Verrilli filed a brief supporting the EEOC. “Although it provided certain defenses for religion-based discrimination in employment,” wrote Verrilli, “Congress has provided no comparable defense for a religious entity that retaliates against its employees for invoking their rights under the statute.” Contrasting Perich's firing with a church's blanket refusal to hire female priests, Verrilli argued that Hosanna-Tabor “fails to demonstrate that dismissal of Perich was necessary to allow it to express any message…”
Verrilli cited the 1990 case Oregon v. Smith, in which it was a pair of employees, not an employer, invoking their First Amendment freedom of religion. The employees in Smith were both Native Americans denied unemployment benefits on the basis that they had been fired for using peyote, a drug which court have recognized to have ritual significance in their religion. In ruling against the employees, wrote the Solicitor General, the Court “held that the Free Exercise clause of the First Amendment does not provide a defense to those who violate neutral and generally applicable laws, even when their actions are based on religious belief…the ADA is just such a law.” Roberts retorted that whereas the employees in Smith were engaged in “outward physical acts,” Hosanna-Tabor’s decision to fire Perich was "an internal church decision that affects the faith and mission of the church itself.”
Ruling in favor of Hosanna-Tabor, Verrilli argued for the Obama Administration, “would critically undermine the provisions of the ADA and a wide variety of other generally applicable laws…An exemption for religious employers would chill employees’ ability to invoke their rights under numerous statutes.” Such logic, he wrote, “could easily be invoked as a justification for violating generally applicable laws forbidding retaliations against witnesses in civil or criminal proceedings. No provision of the Constitution demands that result.”