Like many of you, I’m sure, I’ve been following the latest round of Supreme Court deliberations regarding the so-called ministerial exception with great—and far greater than merely professional—interest. And, also I’m sure like many of you, I find myself of two minds with respect to the issue itself and particular with respect to the decision handed down yesterday in the case known by the unwieldy name of Hosanna-Tabor Church v. Equal Opportunity Employment Commission, a decision that has been hailed by some as the most important decision the court has handed down with respect to the independence of religious institutions in several decades. Whether that is true or not, I don’t feel qualified to say. But I find myself very engaged by the issue itself. And I also find myself on both sides of the fence, equally able to argue for and against the reasonability of the court’s uncharacteristically unanimous decision.
The concept of the ministerial exception is simple enough to understand and refers to the de facto right of a religious organization like a church or synagogue to choose its spiritual leadership without regard to the laws that forbid different kinds of discrimination in the workplace. Thus, for example, although gender-based discrimination is forbidden by law in most contexts, the government does not interfere in the hiring practices of churches that only permit men to serve as clergy. Clearly, though, there have to be limits to such a hands-off policy and I believe that all, or surely most, Americans would agree that the litmus test for the reasonability of the government refusing to become involved in the inner workings of a religious organization with respect to hiring policy should be whether the policy in question is rooted in actual church doctrine or is “just” discriminatory in nature. It is also important to remember in this regard that the exception, despite its name, does not only apply to the hiring of clergy, but to the way religious organizations conduct themselves in general. Here too, though, the litmus test has to be whether the discriminatory act in question is rooted in actual dogma or not. To give a simple example, the government does not and, I believe, should not object when an Orthodox synagogue insists that women sit in a segregated, cordoned-off area of the sanctuary even though gender-based discrimination in public settings is generally illegal. But if that same synagogue were to establish a similar restricted seating area for people of a specific race or for physically handicapped people, then I believe, as I’m sure most of my readers would agree, then the government should absolutely step in to prevent overtly discriminatory practices that have no specific basis in religious dogma and are, therefore, correctly to be labeled as “just” discriminatory.
And so we come to this week’s Supreme Court decision. The case involved a woman named Cheryl Perich, who worked as a teacher in a Lutheran school in Redford, Michigan. Ms. Perich suffers from narcolepsy, a chronic sleep disorder, and was in the midst of pursuing an employment discrimination claim when she was fired from her job not for being a narcoleptic or for being an incompetent teacher, but for pursuing her dispute with the Missouri Synod (which is the second-largest Lutheran denomination in the United States) through legal channels rather than within the church. In other words, the church fired her not because of any reason connected with her suitability as a teacher or her ability to teach, but because she violated church doctrine by seeking redress in the courts rather than in the church for what she perceived as wrongs committed against her. And this is where I find myself veering off in two different directions and uncertain which path is the one along which I prefer to travel. In the real forest, obviously, when you get to a fork in the road you can only take forward one of the two paths that lay open before you. That should probably be how things are in the world of ideas as well…and yet I find myself occasionally more than able to go off—and, at that, with a sense of certainty that I’ve chosen the right path—in two different directions at once. This is one of those moments.
Surely, American citizens have the right to expect the justice system to protect their rights. Isn’t that the whole point of there being a civil justice system, so that citizens can have recourse to it when they feel that they are being treated unfairly or unjustly, or that they are being discriminated against unreasonably? I think we’d all agree easily that that is precisely why the system exists. Yet the justices of the Supreme Court, all nine of them speaking in one voice, determined that Ms. Perich has no right to contest her dismissal, that the Lutheran Church has the absolute right to fire whom it wishes for non-compliance with church doctrine even when the doctrine in question is more in the category of church policy and does not appear to have any overt relation to spiritual dogma or to religious belief. Making the matter more curious is the fact that Ms. Perich is neither an ordained clergyperson nor a fulltime teacher of religion. In fact, she only taught religion for forty-five minutes out of an entire day’s worth of teaching assignments. Yet that alone—that single class she taught in religion—was enough for the court to determine that her employer could bring the ministerial exception to bear and fire her without having to answer for actions that, were they undertaken by any other kind of employer, would indisputably be taken as an open infringement of an employee’s basic civil rights.
Confusing the issue is the fact that the Court’s decision seems to imply that you don’t have to be a minister to be a minister. Justice Clarence Thomas wrote, for example, that the question “whether an employee is a minister is itself religious in nature, and the answer will vary widely.” The fact that Cheryl Perich is specifically not a minister, and is not considered by anyone at all (including the Lutheran Church) to be a minister, is not enough for the church’s right to dismiss her not to be protected by the ministerial exception: the church apparently has the right, so Justice Thomas, to determine on its own that somebody is a kind of a minister even though that person lacks the title, ordination, training, education, or calling to serve in that capacity. Chief Justice Roberts clearly spoke for the majority when he summarized the decision as follows: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.” In other words, as soon as an employee is recognized as being involved in teaching or preaching religion, the employer—supposing the employer is a religious institution and not, say, a university with a Religious Studies department—is no longer bound by the standard laws that forbid discrimination in the workplace.
And that is where I part company with the court. On the one hand, the nature of religion requires that some of our normal disinclination to permit discriminatory practices be set aside: there is nothing wrong at all with permitting synagogues to decline to accept non-Jews as members or for allowing Lutheran churches to offer membership only to Lutherans. That is discrimination, of course, but it is to my mind rational discrimination—and nothing at all like a country club or a tennis club refusing to admit as members people of the “wrong” religion or race. And I certainly agree that the ministerial exception should apply to the hiring of ministers: for a Conservative synagogue to say that it is looking for a rabbi, but is not interested in meeting candidates other than ones ordained by Conservative institutions, seems rational to me as well. But I lose my momentum as I try to travel as far down this road as the Supreme Court went the other day: once you say that a teacher can be fired for going to court to seek redress for a wrong she believed to have been committed against her merely because she teaches one class a day on religion and the church teaches (more than just a bit self-servingly) that disputes between employees and the church, including ones that have nothing at all to do with religion, must be resolved in-house rather than in the courts—that already seems to me to be a clear infringement on that teacher’s basic civil rights.
The responses to the decision were as you probably can imagine. All sorts of religious groups, including the Orthodox Union, which joined together with several Christian groups including the United States Conference of Catholic Bishops and the Mormon Church, were delighted. I am less delighted. On the one hand, freedom of religion is one of the foundation stones upon which American democracy rests. The First Amendment to the Constitution rightly prohibits the government from becoming involved in the inner workings of religious institutions or from establishing a state religion. The ministerial exception that permits synagogues and churches, and all houses of worship, from hiring the clergy they wish without respect to anti-discrimination legislation, however, is only reasonable as long as it is applied judiciously and in a way that seeks to find a rational balance between the right of religious institutions to self-govern and the rights of individual citizens not to have to endure discriminatory hiring practices. I’m a rabbi, not a lawyer or a professor of law. But why Cheryl Perich should be barred from seeking the assistance of the courts in a matter wholly unrelated to religious dogma, I can’t quite understand. The rabbi in me loves the concept of synagogues being free to function as they see fit without reference to those irritating rules society imposes on other societies and businesses. But the citizen in me can’t quite understand how it can be good for society for institutions that self-define as godly and which profess to promote the finest civil and moral virtues to be exempt from the very rules society has put in place to prevent the powerful from oppressing the weak, thus to ensure that society functions fairly and justly for all.