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July 31, 2015 / 15 Av, 5775
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Jewish Groups Welcome Supreme Court’s ‘Ministerial Exception’ Ruling


Attorney Nathan Lewin

Attorney Nathan Lewin

WASHINGTON – Two groups each known for their internal divisions on religion-state issues found themselves in a degree of accord this week: the justices of the United State Supreme Court and the organized Jewish community.

In a decision issued last week, the Supreme Court unanimously upheld the right of religious institutions to use “ministerial exception” to bypass employee discrimination protections and fire staff, but stopped short of setting parameters for the exception.

Some civil libertarians had argued that courts should have the right to intervene in matters pertaining to the employment of clergy, a stance that even some of their usual allies in the Jewish community rejected.

“There’s wall-to-wall belief in the religious community that that’s a clear violation of what the framers intended,” said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism, which praised the court’s ruling.

“There’s nothing more fundamental than choosing your own clergy.”

Americans United for Separation of Church and State was among those who blasted the decision. “Blatant discrimination is a social evil we have worked hard to eradicate in the United States,” said the Rev. Barry W. Lynn, its executive director. “I’m afraid the court’s ruling today will make it harder to combat.”

The court’s ruling could limit legal recourse for members of the clergy in their dealings with employers. Even before the ruling, rabbinical associations were already advising rabbis to write employment protections into their contracts, an official of one such rabbinical group said.

“They never really had protections, but this seals it,” the official said.

Jewish groups had closely watched Hosanna-Tabor Evangelical Lutheran Church and School v. the Equal Employment Opportunity Commission, a case in which a teacher alleged that a Michigan religious school had violated the Americans With Disabilities Act in firing her.

The school claimed that Cheryl Perich, who suffers from narcolepsy, was exempt from protection as a minister. Perich and the EEOC countered that most of her work involved secular teaching.

It was the first time that the Supreme Court considered ministerial exception, a doctrine that had been shaped by lower courts. Its decision has the effect for now of making its application the law of the land.

The court unanimously held that Perich fell under the “ministerial exception” rule not because of the amount of time she devoted to religious teaching – 45 minutes a day – as a lower court had ruled, but because she had been ordained as a minister by the church in 2000.

Chief Justice John Roberts, writing the opinion, said the issue “is not one that can be resolved by a stopwatch,” according to the Associated Press. Roberts added that the court would not “adopt a rigid formula for deciding when an employee qualifies as a minister.”

The reluctance to delve into details reflected divisions among the justices. Clarence Thomas, in a concurring opinion, wrote that the court should stay out of deciding who is and who is not clergy altogether. Samuel Alito and Elana Kagan seemed to suggest that Roberts’s “minister” designation was too narrow, noting that the limitation should also apply to religious leaders who do not receive formal ordination.

There was similar diversity among Jewish groups who supported the decision.

In a friend of the court brief, COLPA (the National Jewish Commission on Law and Public Affairs), on behalf of most major American Orthodox Jewish organizations, favored allowing broad discretion to religious institutions in determining ministerial status.

The Reform movement and the American Jewish Committee said considerations of whether ministry was essential to a staffer’s role should not be assessed according to hours worked, as the lower court had determined.

The Anti-Defamation League sought to place the burden of proof on the employer, not the employee.

Each group, however, welcomed the ruling.

“The burden of showing that an employee is not entitled to the protection of anti-discrimination laws is now rightfully on the religious institution,” said the ADL.

The AJC said the “unfettered right of religious institutions to decide who shall convey their religious messages is as much an element of church-state separation as the ban on government sponsorship of religious messages.”

The Orthodox Union said the ruling ensures that “houses of worship, parochial schools and other institutions whose missions are to be places of worship” are “constitutionally protected from interference by the secular state.”

The Agudah said that “secular authorities are neither equipped nor allowed to engage in these religious determinations.” And the Reform movement called it a “favorable decision for ensuring religious autonomy in a limited manner that still maintains vital anti-discrimination laws that protect the rights of employees of all faiths and no faith.”

The Reform statement sounded the only note of concern among Jewish groups, saying the ruling did not protect employees who sought to clarify their status through the EEOC from retaliation by the religious institution.

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