Supreme Court Ponders Major Religion Case

A Miami Law professor who specializes in First Amendment cases, Caroline Mala Corbin, co-authored an amicus brief in the case, Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, that was signed by more than 60 law professors and religion professors from around the country.

The original plaintiff in the case was Cheryl Perich, who taught at the church school in Redford, Mich., and was diagnosed in 2004 with narcolepsy. Perich took a leave of absence from her teaching job and, when she sought to return later, was denied reinstatement to her position. When she threatened to sue the church, she was fired.

Perich's amicus brief supports the teacher's claim that her employer retaliated against her in violation of the Americans with Disability Act. The underlying issue in the case is to what degree should religious employers be absolutely immune from discrimination suits brought by their ministers, and the question before the Supreme Court is whether Perich should be considered a minister for purposes of a doctrine known as the ministerial exception. The ministerial exception exempts religious organizations from discrimination suits brought by their ministers, where ministers are not limited to ordained clergy.

"How much immunity is a church entitled to?" Prof. Corbin asked in an interview in her campus office this week. "Can a church discriminate with impunity? Should it be able to?"

Prof. Corbin, who has written often on the ministerial exception, was asked over the summer to brief the EEOC on the issue. She thinks the doctrine should be abolished.

"The success of Perich's retaliation claim turns on whether the Supreme Court finds that she is a minister," Prof. Corbin wrote in an editorial on the matter. "If she is not a minister, she would probably win. After all, the school stated in writing that a main reason for Perich's termination was her threatened lawsuit. Indeed, if she is not a minister, the retaliation claim is fairly straightforward. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination."

The ministerial exception grants religious organizations absolute immunity from employment discrimination suits brought by ministers, even if the discrimination is not religiously required. Thus, even if the tenets of the Hosanna-Tabor Evangelical Lutheran Church forbid discrimination on the basis of disability – and the Governing Manual for Lutheran Schools states that the school will not discriminate on those grounds – ministers cannot sue the school for disability discrimination. The lower courts, who created and uniformly apply the ministerial exception, claimed that the religion clauses require it.

"They are mistaken," Prof. Corbin wrote in the editorial. "Neither the Free Exercise Clause nor the Establishment Clause necessitates the ministerial exception. After the landmark case of Employment Division v. Smith, neutral laws of general applicability like the Americans with Disabilities Act do not violate the Free Exercise Clause. Furthermore, while the Establishment Clause bars the state from resolving theological or doctrinal disputes, Perich's retaliation claim does not present any. Indeed, the irony of this case is that trying to discern whether Perich should be considered a minister or not creates more Establishment Clause problems than simply resolving her retaliation claim.

"People who wish to serve their God should not have to choose between their calling and their civil rights. Yet, the ministerial exception essentially strips ministers of protection against discrimination based on race, sex, age, and, as here, disability, and leaves them outside the shelter of the Family Medical Leave Act, the Fair Labor Standards Act, the Equal Pay Act, and a host other protective employment laws. The religion clauses cannot justify the ministerial exception, and it should be eliminated."