Supreme Court’s Ministerial Exception Leaves Room For Debate

January 12, 2012       Don McNamara      

The U.S. Supreme Court’s decision to grant religious organizations a “ministerial exception” to employment discrimination laws was a victory for one church, but its wide-spread impact might take a decade to unfold.

Two nonprofit legal experts contacted by The NonProfit Times, for example, disagreed on the potential effect and use of language of the decision.

The unanimous ruling culminated a case in which a woman sued Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich. The woman, Cheryl Perich, said she was fired for pursuing an employment-discrimination claim, based on her having narcolepsy. Hosanna-Tabor didn’t deny the facts, but responded that it fired Perich for violating religious doctrine by taking the case to court rather than trying to settle it within the church.

The High Court, in a unanimous decision written by Chief Justice John Roberts, affirmed religious entities’ right to choose who will preach their beliefs, teach their faith and carry out their mission.

World Vision, one of the nation’s largest Christian humanitarian relief and development organizations and based in Federal Way, Wash., hailed the decision in a statement. “The U.S. Supreme Court’s unanimous ruling Wednesday may help protect the U.S. office of World Vision and other religious organizations regarding their employment policies and practices. … Today’s decision by the court strengthens the freedom of religious practices under the First Amendment. … All World Vision U.S. employees are required to sign a statement of faith of the Apostle’s Creed, indicating they adhere to Biblical tenets, including belief in the sanctity of the Trinity.”

Ironically, the Supreme Court started hearing arguments on the Hosanna-Tabor case in October, two days after refusing to review another case in which World Vision had been sued for firing employees upon learning that they did not believe in the tenets mentioned in the release. A circuit court upheld the organization’s right to terminate the employees based on religious beliefs.

Maj. George Hood, national community relations and development secretary for the Salvation Army, also issued a statement. “The Salvation Army is aware of the Supreme Court’s decision and is pleased that the Court unanimously reaffirmed the ministerial exception.”

Errol Copilevitz, an attorney who has argued nonprofit First Amendment cases before the U.S. Supreme Court, said that the ruling could take years to play out, after decisions are reached in other court cases related to the issue.

“When the Supreme Court goes into new areas, it goes into them lightly,” Copilevitz said, noting that the decision was intentionally vague. “It may be over the next 20 years that we see things like what constitutes violations. It’s too soon to know the ramifications of the ruling.”

Regarding the concern that the ruling would remove protections for employees suing for being fired in retaliation for reporting criminal conduct, Copilevitz said, “I wouldn’t think that would happen, and I don’t think that was the intent of the ruling.”

As far whether the decision is a victory for the First Amendment, Copilevitz said, “To the extent that religious freedom is a vital part of American life, yes it is.”

Mitchell Y. Mirviss, a partner in the Baltimore. Md., office of the law firm Venable LLP, called the decision a “victory” for the First Amendment, but he disagreed about the decision being vague.

“It’s a vindication for all those who have asked for a vigorous application of the First Amendment for religious institutions,” Mirviss said.

He added that cases bringing up a ministerial exception have been commonplace for decades. According to Mirviss, the sheer volume of cases had grown, making it appropriate for the Supreme Court to step in.

Mirviss said he does not think there would be huge issues in instituting the ministerial exception, as he called the court’s decision “very robust.”

“It seems to me there may be follow-up issues whether it applies to sexual discrimination or a state tort claim, but the decision spells out how courts should deal with these issues,” said Mirviss. “The ruling gives these institutions sufficient leeway on how they should run their programs.”

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