By: Judith Massis-Sanchez
The Supreme Court recently kicked off what promises to be a lively term. On Wednesday, the justices heard a case that will test the divide between church and state in the employment context. In Equal Employment Opportunity Commission v. Hosanna-Tabor Evangelical Lutheran Church and School, the Court must decide the degree to which employment antidiscrimination laws will apply to religious school instructors. The case is on appeal from the Sixth Circuit.
The suit was brought by Cheryl Perich, a former teacher at a Michigan ecclesiastical school, who alleges Hosanna-Tabor discriminated against her in violation of the Americans with Disabilities Act of 1990. Perich alleges she was diagnosed with narcolepsy and was fired for pursuing an employment discrimination claim based on her illness.
The ADA prohibits an employer with fifteen or more employees from discriminating against a qualified individual on the basis of their disability in regards to the various conditions of employment, including termination. The ADA further makes it illegal for employers to discriminate against an individual because they have opposed an act or practice made unlawful by the ADA or because the individual brought a charge under the ADA. However, the Act also contains a defense—known as the “ministerial exception”—which allows religious organizations to require their employees to conform to the religious tenets of their organization.
The Sixth Circuit found for Perich and vacated the District Court’s order granting summary judgment on behalf of Hosanna-Tabor after finding that the ministerial exception did not bar Perich’s claim. The court described the ministerial exception as “rooted in the First Amendment’s guarantees of religious freedom”, and as a doctrine based on the religious organization’s “constitutional right to be free from judicial interference” in selecting their employees. For the exception to serve as a bar to an employment discrimination claim, the employer must be a religious institution and the employee must be a ministerial employee. The court then went on to discuss how the majority of courts have held parochial school teachers who teach primarily secular subjects are not classified as ministerial employees for the purpose of the exception. The Sixth Circuit ultimately found that Perich’s primary function was teaching secular subjects, therefore not classifying her as a ministerial employee for the purposes of the exception.
The oral arguments before the Supreme Court were focused largely on whether judicial determinations under the exception could possibly violate the religious amendments. Since the exception is meant to keep the government out of the religious organization’s faith-based decisions, the justices seemed to struggle with whether their ruling on the employment decisions would be any different than ruling on the religious doctrine itself. For example, the EEOC argued that there was a difference between justifying government intervention when a Catholic Church chooses its male priests and when a Lutheran school requires internal dispute resolution to address illegal conduct. Justice Alito’s response captures precisely why the Supreme Court would be hard-pressed to allow Perich’s claim to go forward:
When you say that, are you not implicitly making a judgment about the relative importance of the Catholic doctrine . . . and the Lutheran doctrine? . . . I can’t reconcile your position on those two issues without coming to the conclusion that you think that the Catholic doctrine is older, stronger and entitled to more respect than the Lutheran doctrine.
To highlight what truly would be a governmental interest, Justice Sotomayor asked, “How about a teacher who reports sexual abuse to the government and is fired because of that reporting?”
In determining the scope of the ministerial exception, the Supreme Court must strike a balance between protecting employees in retaliation claims and maintaining the state’s distance from religious inner workings. To avoid the substantive First Amendment questions of Perich’s case, the justices can follow the Sixth Circuit’s lead and simply decide whether Perich’s disability was within the meaning of the ADA, whether she opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in firing her.
 Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No. 10-553 (U.S. argued Oct. 5, 2011).
 See Adam Liptak, Religious Groups and Bias Get the Justices’ Attention, N.Y. Times, Oct. 5, 2011, http://www.nytimes.com/2011/10/06/us/supreme-court-puzzles-over-religious-groups-and-bias.html?_r=1&ref=adamliptak.
 EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, 597 F.3d 769 (6th Cir. 2010).
 Id. at 771-772.
 Id. at 772-775.
 42 U.S.C. § 12112(a).
 42 U.S.C. § 12203(a).
 42 U.S.C. § 12113(d)(2).
 Hosanna-Tabor, 597 F.3d 769.
 Id. at 777 (emphasis in original).
 Id. at 778.
 Id. at 778-779. See Guinan v. Roman Catholic Archdiocese of Indianapolis, 42 F. Supp. 2d 849 (S.D. Ind. 1998) (holding that a teacher who taught at least one religion class per term and organized mass once a month was not a ministerial employee), and Dole v. Shenandoah Baptist Church, 899 F.2d 1389 (4th Cir. 1990), (holding that teachers who integrated biblical material into traditional academic subjects are lay teachers for the purposes of the exception).
 Id. at 779-780.
 Transcript of Oral Argument, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (No. 10-553). The Sixth Circuit found, on the other hand, that an analysis of church doctrine would not be required in Perich’s case. 597 F.3d at 781-782.
 See, Transcript of Oral Argument at 22.
 Id. at 32.
 Id. at 5.
 Hosanna-Tabor, 597 F.3d at 781.