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Obama administration tells Supreme Court there should be no “ministerial exception”

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.

  • http://AddaURLtothiscomment M

    I understand that this could have unintended consequences, but it is very wrong for the church to fire someone because they sought legal action! How can you argue that the church should be allowed to deny you legal recourse or fire you?

  • Rob Kerby, Senior Editor

    Well, the same argument could be made, say: How can those Baptists insist I have to get dunked? or Who does the Pope think he is, only allowing women to be nuns? or I have every right to be a rabbi even if I am a Hindu. Lutherans take literally the Bible’s admonition that Christians don’t sue Christians.

  • http://AddaURLtothiscomment Nicole

    And this is why OBama needs to get out office. His views are too liberal. This is crazy. Why shouldn’t churches pick and choose who enters their congregation.

  • http://AddaURLtothiscomment Allan

    Obama claims he is a Christian, and, I suppose we have to take his word on that. However, it is also obvious, from his words and actions, that his Christianity is purely nominal. He has no comprehension of basic Christian beliefs. He would be better off keeping his mouth shut on religious matters. As the saying goes, it is better to sit silently and be thought a fool than to open your mouth and remove all doubt.

  • http://AddaURLtothiscomment ohcanada

    the fact of the matter is that for hiring the application for employment should not ask one’s religion for it opens the door to religious discrimination immediately. Let the best “person” do the job. Didn’t this woman have detailed medical records or information from her doctor? what does “not convinced” mean? Sounds like she has a good case.

  • Laura Weakley

    Just when I think nothing will surprise me anymore….Everyone who works in, or attends a religious institution should expect all of its employees to adhere to its tenets. Just like everywhere else in the secular world, if you don’t like something about your workplace, then leave, or don’t apply there at all. The only true reason those people first mentioned applied for jobs there was in order to win some money from these institutions from a lawsuit. Had people like that been actually hired, they would find another reason to sue, as clearly “easy” money was what they were after.

    Now, having said that, clearly we should not take away all remedies to unfair ethical and moral obligations. I write this in answer to the supposed reason the President took the stance he did. However, any and all resolutions and remedies for protests should be sought within the religious institution itself, or if someone feels the need to go outside to get help, I believe there are ruling bodies within most religions to which individual places of worship belong.

    The teacher missed a lot of school days, and any business would fire her. In fact, there are normally policies for that type of situation. When one seeks a job in a religious institution, one is automatically a representative of the tenets and beliefs the institution holds. Employees there absolutely should be held to higher standards, as this is and should be naturally expected by all who attend or work there. Teachers by nature are role models, and whether or not that teacher had a medical reason for her lack of attendance, and I assume, no call to the school to find a substitute, she made a commitment to not only the school, and the religious institution, but also to those children whom she taught.

    What I find astounding, is that any of these lawsuits were filed, much less accepted by the lower courts as being worthy of being heard. It is unbelievably disrespectful of the selfish, and obnoxious people who do so. Not to mention the fact that religious institutions are considered second homes to most people and all who are either members or employees there in whatever capacity think of those associated with it as extended family members. Quite frankly, who would want to continue a relationship or even begin one with someone who is basically a bully? Rhetorical question.

    The fact that our President of the United States sent down instructions on arguing, as was done, clearly demonstrates not only his own lack of respect for his own and other religious institutions, but also and a little more subtilely, a desire to eliminate them all together. I won’t even go into the fact that our country has a very, very, basic and fundamental principle of the necessity for the separation of church and state. Inherent within this is the need to extend respect for all religions. The only time there should be an exception to this should be if the institution teaches, demonstrates, and promotes truly illegal activities, such as torture, murder, and any and all other forms of violence. Neither of the cases mentioned fall under that aegis, nor even come close. Discrimination in hiring employees who don’t believe in nor choose to act in accordance with the beliefs of a religious institution should be expected, and respected, otherwise the institution is not able to act in the beliefs which are fundamental to it. I would also like to point out that the children who attend should be treated with respect, and be a priority in terms of the teachers and leaders there. Narcolepsy, for those who don’t know, is a disease where someone falls asleep quickly anywhere, anytime. It is a very dangerous disease for a multitude of reasons, but what is pertinent here is not only the position this teacher continually placed the school in, nor the total disregard of the needs of her students, but how effective can a teacher with narcolepsy actually be? if she was a truly good and caring person and teacher she would and should want what is best for the children. I for one would do all I could to see this woman never teaches anywhere, as her blatant disregard for her profession, students, responsibilities, and her religion makes her quite an awful role model for the reasons I have mentioned, and many, many more.

    Thank G-d the court ruled against these people and against the President’s wishes. At least I know there are still people out there who care about doing what is right, not to mention who see bullies for what they are. As we all know, our court system has failed miserably in this area far too many times. As for our President, after so many obvious seedy, immoral, unethical, and just plain stupid actions, do you really want to vote him back in for another four years? Let us not forget either, he has not been forthcoming, nor honest about his own religious beliefs, and his actions speak loudly and clearly.

    One last thing, we are all responsible for and to each other and it is appalling anyone would actually take the cases of the above mentioned people to bring to court in the first place. Those who took those and other frivolous, self-serving, and bullying type lawsuits shouldn’t be allowed to practice law in the first place. It is our responsibility as members of the family of human beings, to stop evil in its tracks wherever it is found. This is not a religious judgement-type of evil I am speaking of, but of the bullying, thieving nature, and violent nature we can all agree is evil, legally, ethically, and morally.

    These people were clearly looking for an “easy” way to make a buck, as were those who helped them, so don’t for one second think this was about truly unfair practices by religious institutions.

  • http://AddaURLtothiscomment usworker

    I am Catholic – as for me and my house, We will obey and follow God and His church rules – Not the US government’s.

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