Do Non-Clergy Qualify for Protections of “Equal Employment” Laws?

The Supreme Court will soon hear “one of the most important religious cases in decades,” according to a pre-trial analysis in today’s Washington Post . The case, Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission , arose from a Michigan church’s firing of a disabled woman.  But the real question at stake (and the reason this case has reached the Supreme Court) is one with sweeping implications:

The question before the justices concerns the “ministerial exception,” a 40-year-old legal doctrine that protects churches and other religious institutions from government interference in their employment decisions.

Few would dispute that a religious congregation should be unfettered when it chooses to hire or fire clergy. But what about other church employees?

“Advocates for the ministerial exception argue that religious institutions, in their hiring and firing, should be regulated as little as possible,” said Ira C. Lupu, a professor at The George Washington University School of Law who specializes in church-state cases.

On the other side are those concerned that a particular group is cast outside the various protections of civil rights laws.”

It’s a legal battle that almost certainly portends massive controversy and widespread social rupture. Do non-clergy qualify for all the protections of “equal employment” laws, even if they work at religious organizations which claim exemptions to those laws on the grounds of belief? Given the ratio of clergy to non-clergy in most religious organizations, it’s hard not to see this case as affecting the very root of many civil society organizations in this country.

The Becket Fund for Religious Liberty represents one side, while, bizarrely (though not surprisingly), the American Civil Liberties Union is defending the government, arguing that:

While faith communities surely have the right to set religious doctrine and decide which ministers best advance their religious beliefs and practices, they shouldn’t get a blank check to discriminate or retaliate against their employees,” said Daniel Mach, director of the ACLU’s Program on Freedom of Religion and Belief.

Perich [the plaintiff suing the church] should not fall under the ministerial exception, Mach said, because her primary job was as a school teacher, not a minister.

Regardless of the way the court rules, this case is already destined to become a significant landmark in American legal theory and practice. But if the court does come down in favor of the plaintiff, it seems likely that religious schools, hospitals, and charities ought to brace themselves for a wave of litigation and the possibility of having their moral teachings considered irrelevant in the hiring and firing of staff.