Anti-discrimination and retaliation statutes generally apply to all employers, even private religious ones. However, churches have long enjoyed the protection of "the ministerial exception" which prevents ministers from suing their churches over most employment disputes. The term "ministers" includes pastors, priests, and rabbis, but can it also extend to teachers at parochial schools who engage in protected activity? The U.S. Supreme Court may soon bless this extension after hearing oral arguments in the Hosanna-Tabor Evangelical Lutheran Church case a few weeks ago.

Perich served as one of Hosanna-Tabor's commissioned ministers and "called teachers." As a "called teacher," Perich had to integrate faith into all subjects she taught and she herself was subject to the same employment and dispute resolution rules as the church pastor. Hosanna-Tabor claimed the school as a mechanism of ministry, offering a "Christ-centered education" based on biblical principles.

In June 2004, Perich became ill and was eventually diagnosed with narcolepsy – she fell into sudden and deep sleeps from which she could not be awakened. In January 2005, with Perich still unable to return to work, a replacement was hired for the spring semester. The congregation also voted to ask Perich for a "peaceful release from her call," meaning a religious act by which the congregation and Perich agree to release one another from the mutual obligations of the call. Perich, however, refused to release her call peacefully and instead provided a doctor's note confirming her ability to return to work within a month. When the school said there was no position for Perich until the next year, Perich threatened to sue. The church did not turn the other cheek and, instead, rescinded Perich's "call" for insubordination and for ignoring 1 Corinthians 6:1-11 which it said advocates resolution of religious disputes in church instead of court.

1 Corinthians 6:1-11 notwithstanding, the EEOC sued Hosanna-Tabor on Perich's behalf for retaliation under the ADA.

The Eastern District Court of Michigan dismissed the case. It found Hosanna-Tabor's designation of Perich as a commissioned minister to be a sincere religious practice and refused to second-guess Hosanna-Tabor's decision, noting that "separation of church and state in the United States has made federal courts inept when it comes to religious issues." It further held that it could not adjudicate Perich's claim without "exploration of religious doctrine in violation of the First Amendment."

The ministerial exception is, in fact, rooted in First Amendment rights:

  • Free Exercise Clause (which protects the right of churches to select and control the employees who perform important religious functions),
  • Establishment Clause (which prevents government from appointing ministers and from deciding the religious questions that are involved in employment disputes over ministers), and
  • Freedom of (religious) Association Clause (which limits government interference in the selection of those who communicate a religious organization's message).

On appeal, the Sixth Circuit declined to give full faith to Hosanna-Tabor's religious/business judgment. Instead, it simply counted minutes. The Sixth Circuit reasoned that an employee falls within the ministerial exception only if the employee's "primary" duties are religious. The court then calculated the minutes Perich spent on various tasks and concluded that Perich spent the "majority of her day teaching secular subjects using secular textbooks." As such, Perich simply did not devote enough of her workday time to religious concerns to warrant the ministerial exception. The case was remanded for trial on the merits.

"Quantity, not quality" is the apparent lesson to be learned at this juncture of the case.

Literally speaking, only time may tell whether the U.S. Supreme Court will affirm the Sixth Circuit's "watch the clock" approach. On the other hand, the Court could follow the district court's hands off approach because who really wants to wade into the waters of separation of church and state? Either way, scholars and bloggers alike appear to agree that the ministerial exception will continue to protect certain established religious beliefs and practices, such as Catholic churches allowing only male priests.

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