OCTOBER 17, 2011, 9:00 PM

Is Religion Above the Law?

By STANLEY FISH

Stanley Fish on education, law and society. Tags: ministerial exception, religion, the Supreme Court The religion clause case recently argued before the Supreme Court Hosanna-Tabor v. EEOC centers on the ministerial exception, the doctrine (elaborated over the last 40 years) that exempts religious associations from complying with neutral, generally applicable laws in some, but not all, circumstances. In 2005 Cheryl Perich, a teacher in the Hosanna-Tabor Lutheran Evangelical School, returned from an extended sick leave (she had been diagnosed with narcolepsy) to find that her services were no longer wanted. She declined to resign as requested, and after a resolution satisfactory to her was not forthcoming she filed a disability discrimination suit. The church responded by terminating her as a teacher, alleging that its reason was theological, not retaliatory. The Missouri synod, the church explained, requires its adherents to resolve disputes rather than bring suit in civil court; in failing to follow this rule, Perich had transgressed a core Lutheran belief. The church further argued that as a commissioned minister Perich fell under the ministerial exception even though the bulk of her time was spent teaching secular subjects. Perich (through her attorneys) replied that her duties were not primarily religious, and that the assertion of a doctrinal violation was an afterthought devised to serve as a pretext for an act of retaliation in response to her having gone to the courts in an effort to secure her rights. So the issues are, first, was she a minister in the sense that would bring her under the exception (in which case the state could not intervene to protect her), and, second, was the doctrine the church invoked as the reason for its action truly central to its faith? (There are other issues in play but, as we shall see, two are more than enough.) The most perspicuous example of a ministerial exception is the Catholic churchs limitation of membership in the priesthood to males. If a university were to have a rule that only men could serve as professors, it would be vulnerable to a suit brought under the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. The difference (or so it has been asserted)

is that there is no relationship between professorial skills and gender a woman can perform the duties of a teacher of history or chemistry as well as a man while the tradition of an allmale priesthood is rooted in religious doctrine. So the university would be engaged in discrimination pure and simple, whereas the churchs discrimination is a function of its belief that the all-male priesthood was initiated by Christ in his choice of the apostles. Were the state to intervene and declare the tradition of an all-male priesthood and the doctrine underlying it unconstitutional, it would be forcing the church to conform to secular norms in violation both of the free exercise clause (the right of a religion to be governed by its own tenets would be curtailed) and the establishment clause (the state would in effect have taken over the management of the church by dictating its hiring practices). (I am rehearsing, not endorsing, these arguments.) This clear-cut example to which both sides in Hosanna-Tabor v. EEOC refer frequently may be the only one (and it is only clear-cut because it has behind it 2,000 years of history). For the question quickly becomes one of boundaries how far does the ministerial exception extend? To whom does it apply? Not only are there no answers to such questions, it is not obvious who is empowered to ask them. If the ministerial exemption is to have any bite, there must be a way of distinguishing employees central to a religious associations core activities from employees who play only a supporting role (the example always given is janitors). But if the line marking the distinction is drawn by the state, the state is setting itself up as the arbiter of ecclesiastical organization and thus falling afoul of the establishment clause. And if the line is drawn by the religious association, the religious association is being granted the power to deprive as many of its employees as it likes of the constitutional protections supposedly afforded to every citizen. It is these equally unpalatable alternatives this Scylla and Charybdis that the justices find themselves between in oral argument. What a mess! It is tempting to bypass the mess by getting rid of the ministerial exception altogether and demanding that churches, synagogues and mosques obey the law just as everyone else does. But that draconian solution would imply that we get rid of the religion clause as well; for it would amount to saying that religion isnt special, and both sides of the clause insist that it is. The freeexercise clause tells us that that religion is especially favored and the establishment clause tells us that it is especially feared (the state should avoid entanglement with that stuff). How do you honor the claims of free exercise without bumping up against the establishment clause by allowing exceptions to laws that everyone else must follow? The difficulty is sometimes finessed by cabining free exercise in the private sphere. Free exercise, it is said, is fine as long as its scope is limited to the expression and profession of belief; but once it crosses over into actions the state has a duty to regulate, free exercise must give way to the authority of fair and neutral laws. (This is the holding of a line of cases from Reynolds v. United States [1878] to Employment Division v. Smith [1990].)

This cutting of the joint works fine for a religion that places minimal burdens on its adherents and asks only that they attend to the personal relationship between them and their God. But what about religions that expand the area of faith to include rites the faithful must celebrate and worldly actions they are expected to perform? What about religions that refuse to recognize, and even consider impious, the distinction between the private and the public spheres? Can the state step in and say, No, youre wrong; that practice youre worried about isnt really essential to your faith; give it up so that a system of laws put in place for everyone isnt destroyed by exceptions. Doesnt society, Justice Sonia Sotomayor asked at oral argument, have a right at some point to say certain conduct is unacceptable, even if religious? The question is, at what point? And who gets to decide when that point has been reached? Indeed there is a question even more basic (and equally unanswerable except by fiat): who gets to say whether a certain conduct is religious and centrally so? A resolution of the HosannaTabor case, Justice Samuel Alito observes, depends on how central a teaching of Lutheranism the injunction against suing in a civil tribunal really is. Before we can decide (he continues) whether the churchs asserted reason for terminating Perich is a pretext, we must determine whether this is in fact a central tenet of Lutheranism. And if we decide that it isnt, wouldnt we be making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts? And what authorizes the Court to do that in opposition to what the churches themselves say? The same dilemma attends the other vexed question. How, wonders Chief Justice John Roberts, do we decide whos covered by the ministerial exception? By getting to the heart of the ministerial exception, answers Douglas Laycock, speaking for the church. But that is simply to relocate the problem in a phrase that itself demands explication. Whos to say where the heart is? In some churches, Justice Anthony Kennedy observes, there arent full time ministers at all; theyre all ministers. So does everyone fall under the exception and can a non-hierarchical church simply declare that none of its members can seek redress for acts of discrimination because theyre all ministers? Just before the oral argument concludes, Justice Sotomayor is still awaiting clarification: So define minister for me again? She will be waiting forever. There is no way out of these puzzles, and that is exactly the conclusion Justice Stephen Breyer reaches: I just cant see a way of getting out of the whole thing. Justice Alito points to the absurdity of calling in expert witnesses to determine the truth of disputed matters of religion, but, he asks, How are we going to avoid that? I just dont see it. Later he concludes that you just cannot get away from evaluating religious issues, which is of course exactly what the courts are not supposed to be doing. So how will the case turn out? Clearly none of the justices wishes to pronounce as a theologian. And just as clearly none of them is happy with the prospect of a ministerial exception without defined limits. Breyer gestures in the direction of a solution that avoids the hard questions. Grant the Church the core doctrine it cites and inquire into whether Perich was given adequate

notice of it. If she was, she loses; if she wasnt, she wins. But no one will be satisfied with that maneuver, which will itself raise a host of new unanswerable questions in place of the questions supposedly avoided. All these questions were explored by John Locke at length in his Letter Concerning Toleration (1689), and at one point Locke gives voice to a weariness we might echo today: Would that this business of religion were left alone. But as long as there is a religion clause, thats not an option.

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