In Unraveled, I devote a chapter to tracing modern Supreme Court precedent concerning free exercise. I include a discussion about Hosanna-Tabor v. EEOC, where the United States government took the extreme position–which even made Justice Kagan gasp–that a religious school has no autonomy over whom it hires so long as it opens its doors to the public.
On August 2, 2011—the day after HHS announced Exemption 1.0—the Solicitor General would file his brief with the Supreme Court in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Cheryl Perich, a “called” teacher at the school, had received theological training and was referred to as “Minister of Religion, Commissioned.” After Perich developed narcolepsy, and was unable to work, the Church threatened to fire her. The teacher countered that she would sue her employer for a violation of the Americans with Disabilities Act. Perich was ultimately fired, and sued the Church for retaliation. Hosanna-Tabor defended against the claim based on the “ministerial exception” to discrimination law. The Lutheran Church argued that because of the First Amendment’s protection of religious freedom, courts cannot intervene in disputes concerning “employment relationship between a religious institution and one of its ministers.” Rather, “Perich was a minister, and she had been fired for a religious reason—namely, that her threat to sue the Church violated the Synod’s belief that Christians should resolve their disputes internally.”
Despite the fact that “the Courts of Appeals have uniformly recognized the existence of a ‘ministerial exception,’ grounded in the First Amendment,” the Obama Administration denied its existence. Deputy Solicitor General Leondra R. Kruger—who would be appointed by Gov. Brown to the California Supreme Court in 2015—explained to the Justices that because the Church “decided to open its doors to the public to provide” education to children who are not of the same faith, “in compliance with State compulsory education laws,” Hosanna-Tabor lost autonomy over its religious instructors. Justice Scalia was incredulous that a church’s decision of who would “teach theology . . . has to be subject to State control.” Kruger countered that the government’s interest in allowing employees to “report civil wrongs to civil authorities” without fear of retaliation “is an interest that we think overrides the burden on the association’s religious message.” In response to a question from the Chief Justice, Kruger added that the Church’s “sincere sincere religious belief was not sufficient to warrant an exemption from generally applicable . . . laws.”
Justice Kagan, who the year before worked for the Obama Administration as Kruger’s boss, asked the most devastating question of the day: “Do you believe, Ms. Kruger, that a church has a right that’s grounded in the Free Exercise Clause and/or the Establishment Clause to institutional autonomy with respect to its employees?” Kruger responded, “We don’t see that line of church autonomy principles in the Religion Clause jurisprudence as such.” In English, that means “No.” Kagan, agreeing with Scalia, responded incredulously, “I too find that amazing, that you think that neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.”
The Supreme Court would unanimously reject the government’s position, and recognize that the “ministerial exception” is compelled by the First Amendment. Writing for all nine Justices, Chief Justice Roberts wrote that “[b]y imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”
With one question, the reasoning behind the second and third factors of the exemption become clear. Hosanna-Tabor hires both “called” and “lay” teachers, who need not be of the same faith. From the government’s perspective, the Church would not be exempted as a “religious employer” because it does not “primarily employ persons who share its religious tenets.” The school at the Church is open to the public, and teaches students of all faiths. From the government’s perspective, the Church would not be exempted as a “religious employer” because it does not “primarily serve persons who share its religious tenets.” As a result, under the rule, the Church lacked adequate religiosity to warrant an exemption because its staff and members do not “share its religious tenants.” The government’s defense of the exemption, that it “respects the unique relationship between a house of worship and its employees in ministerial positions,” mirrors their position in Hosanna-Tabor. Faith was only recognized as the bond between a minister and his flock.
Also taking this position was Respondent Cheryl Perich, represented by the law firm of O’Melveny and Myers, and partners Sri Srinivasan and Walter Dellinger. From Page 20 of the brief:
The Free Exercise Clause provides no greater support for Hosanna-Tabor’s expansive approach. The general rule under that Clause—applied to indi- viduals and institutions alike—holds that neutral, generally applicable laws like the ADA are fully en- forceable and need not give way to religious exercise. A religious organization thus has no constitutional entitlement to become a law unto itself. The Court instead has left it to Congress to accommodate reli- gious exercise through enactment of legislative ex- ceptions from antidiscrimination laws, and Congress has been equal to the task.
On Page 26 of the brief, like the SG, they reject the existence of the ministerial exception as to secular teachers at religious schools:
It bears emphasis at the threshold, however, that Hosanna-Tabor starts in the wrong place in assuming the existence of a “ministerial exception” and proceeding to examine its scope. The ADA, like other employment discrimination laws, contains no “ministerial exception.” While Hosanna-Tabor argues that every court of appeals has recognized some form of “ministerial exception,” PB16-17, every published federal court of appeals opinion to consider the issue has refused to apply any “ministerial exception” to teachers of secular subjects in religious schools.8 Reference to an ostensible “ministerial exception” does not advance the resolution of the question at issue—whether the ADA is unconstitutional as applied to the circumstances of this case.
On page 27, like the government, Perich claimed that because the school serves students who are not Lutheran, the ministerial exception is inapplicable:
But it is also undisputed that her teaching of secular subjects constituted an important secular function, and that she was to perform that secular function for all students—whether Lutheran or non- Lutheran—who purchased those services from the school.
This claim was unanimously, and soundly rejected by the Supreme Court.