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In a surprise move, the Obama Justice Department argued Wednesday before the U.S. Supreme Court that churches should not have the right to hire and fire employees who disagree with the doctrines of a particular faith.

The position startled many observers. Taken to extreme, a Hindu priest could sue a Southern Baptist Convention congregation for refusing to hire him — since he has a graduate degree and would make a superb choir director. Atheists could demand to be hired as principals of Christian schools. Women could demand to be accepted as Catholic priests — and men could sue for the right to be nuns.

In the case at hand, a teacher at a Lutheran school was bound by Lutheran church law to mediate any disagreement through her church. Instead, she sued — and was fired for vi0lating a key tenet of faith: that Lutherans do not bring other Lutherans before a judge; instead they work things out together as Christians.

The case before the court asks whether the church school is protected by the “ministerial exception,” meaning that she had to conform to the doctrines of the church in order to qualify as an employee.

“Early reports from friends and colleagues who attended this morning’s oral argumentare encouraging,” writes Richard W. Garnett for National Review magazine. “It appears that the justices were near-united in treating the administration’s surprising and extremist position as, well, surprising and extremist.”

The consensus, writes Garnett, is that at least a majority of the justices will not only confirm that a ministerial exception is required by the Constitution, but will also reject the wooden, “count up the hours” approach taken by the Sixth Circuit to deciding the “who counts as a minister?” question.

Garnett is a professor of law and associate dean at Notre Dame Law School. He notes:

The Court recognizes, it appears, that “ministers” often spend time doing administrative chores, and this fact of life does not change the basic character of their vocation. This morning, I gather that the solicitor general argued that employees who have any important administrative functions are not ministers.

To which the chief justice responded, “The Pope is a head of state and has important administrative functions, so he’s not a minister?”

Exactly. The better approach is to defer to religious institutions’ understandings of their employees’ functions and to take a more qualitative approach, considering a variety of factors, always with a focus on the doctrine’s goal, namely, protecting religious freedom by avoiding secular second-guessing and supervision over religious matters.

In the cast before the court, Cheryl Perich was a teacher at the Lutheran Church-run Hosanna-Tabor School in eastern Michigan when doctors diagnosed her with narcolepsy and she missed work for several months. The school, its small staff stretched, hired a replacement teacher for the spring semester. Perich wanted to return to her job during the spring, but the school had hired a replacement. The school also wasn’t convinced she was physically ready to return to work. She threatened to sue if she wasn’t reinstated.

The school fired her, saying she had violated church teachings by immediately turning to legal action instead of going through the church’s  process for such disputes.

Perich filed a lawsuit with the Equal Opportunity Commission, alleging that the firing violated hiring and firing rules.

The U.S. Sixth Circuit Court of Appeals sided with Perich, saying she should not fall under the “ministerial exception,” as a church employee.

“Leaders of Roman Catholics, Mormons, Presbyterians, United Methodists, Seventh-day Adventists, Hindus, United Sikhs, Muslims, Episcopalians, Reform Jews and Orthodox Jews are united,” writes Peter Smith of the Louisville Courier-Journal. “So are the conservative National Association of Evangelicals and its liberal counterpart, the National Council of Churches. So are devotees of Santeria, Yoruba and other religions you may not know. Even the various Baptist denominations are all on the same side.

“They all support the right of religious groups to hire and fire teachers who could be construed as ‘ministers’ on grounds that would be otherwise discriminatory, whether due to race, gender and disability or other reasons. The case could affect hundreds of thousands of teachers and other employees in faith-based schools and organizations.”

“The basic rationale underlying the doctrine seems straightforward,” wrote Howard Friedman, a professor emeritus of law at the University of Toledo, in the magazine Liberty:

“For a religious institution to thrive, it must be free from government constraint in selecting who will ‘preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large. Laws against religious discrimination in employment should not permit the government to tell a Presbyterian church, for example, that it must hire a rabbi.”

“When framing the Bill of Rights, James Madison and the other Founders wanted the government to have no power to mandate church policies,” writes Mollie Hemmingway on the website GetReligion. “So they prohibited Congress from making laws respecting an establishment of religion, and guaranteed churches and other religious organizations the ‘free exercise of religion.’

“One cannot imagine a more obvious feature of an establishment of religion, or a clearer violation of free exercise, than the government dictating to a church that it must rehire a religious teacher, especially a person who has violated church teachings or behavioral codes. The Justice Department’s position, if vindicated, raises the possibility that courts and bureaucrats may, in the name of contemporary norms of fairness, begin requiring religious organizations to hire any number of candidates who do not accept that faith’s tenets.

“One could easily imagine future decisions forcing churches, synagogues, or mosques to hire employees who do not adhere to the tradition’s norms of sexual behavior, for example.”

“A huge, huge case,” observed Hemingway.

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