The ministerial exception, for example, also allows Catholic priests and Orthodox Jewish rabbis to be exclusively men — the ability to "discriminate" against hiring women for such positions is considered a religious belief that the government cannot interfere with even though such employment criteria would be illegal sex discrimination in a secular setting.

All the circuits have held there is an exception, but they differ in how far it extends. Perich's case is the first in which the high court will consider the question.

"There's a lot of significance to this. ... The U.S. Supreme Court will decide whether this ministerial exception exists and, if so, whether this parochial school teacher qualifies as a minister," says Christopher Lund, an assistant law professor at Wayne State University who teaches a course in religious liberty. "One of the issues on which the lower courts are divided is whether these types of parochial school teachers qualify as ministers under the ministerial exception. Some lower courts have said they do, some have said they don't. One of the jobs of the Supreme Court is to resolve differences from lower courts."

The church has filed its briefs in the case and has supportive filings from nearly two dozen religious groups and associations, including the Muslim-American Public Affairs Council, the American Jewish Committee, the American Association of Christian Schools and the American Bible Society. Largely, they are arguing for affirmation of the ministerial exception for parochial school teachers and also its expansion to apply to other employees with responsibilities for religious instruction or who perform what are considered to be religious functions. That could include nurses in Catholic hospitals, for example, drug counselors at treatment facilities operated by religious groups, and anyone else the religious institution determines has job duties related to religious tenets.

Michigan's Attorney General Bill Schuette also authored an amicus brief, supported by seven other state Republican attorneys general, arguing for the expansion of the ministerial exception to employees beyond religious leaders and to other employees.

"Such a standard will avoid unnecessary state entanglements in religious affairs," Schuette wrote, "including potential entanglement in determining whether a religious employee is subject to state investigation or judicial review." That would protect religious institutions from investigations of employment-discrimination complaints with state civil rights departments, for instance, and would prevent such employment-discrimination lawsuits from being adjudicated in state courts.

According to the Supreme Court schedule, the briefs for Perich's side are due next month before oral arguments this fall.

Perich's case was first filed in U.S. District Court in Detroit by the Equal Employment Opportunity Commission, which determined she had a valid employment discrimination claim. James Roach, Perich's personal attorney, and the EEOC attorneys currently are writing their main brief and expect support from groups who believe the individual rights of employees should be considered in balancing how far the ministerial exception goes in preventing discrimination claims.

"I think you have to remember that there are actually religious interests on both sides," says Caroline Mala Corbin, an associate professor at the University of Miami School of Law who specializes in the First Amendment.

"People are so focused on the religious rights of the church, but we're also dealing with religious individuals. I think people who serve their God should not have to choose between their calling and their civil rights."

 

Principles and standards

The Hosanna-Tabor church was established in 1952 in suburban Redford. It is part of the Lutheran Church-Missouri Synod, the second largest Lutheran body in the United States. By the early 1960s, the congregation had grown enough to support a school, and, in 1970, the current church and adjoining school building opened. The school's mission includes "reinforcing biblical principals and standards" and has a staff that "serves as fine Christian role models who integrate their faith into all subjects," according to briefs filed in the case.

When Perich joined the faculty as a kindergarten teacher in 1999, she was a "lay" teacher, hired by the board for a one-year term, which could be renewed.

In 2000, Perich became a "called" teacher, meaning she was hired by the voting members of the Hosanna-Tabor Evangelical Lutheran Church congregation after being recommended by the boards of education, elders and directors.

As a called teacher, Perich had completed colloquy classes as required by the Lutheran Church-Missouri Synod. She held the title of "commissioned minister." According to school policy, called teachers cannot be summarily dismissed without cause. She continued to mainly teach academics — math, language arts, social studies, science, gym, art and music. She led a religion class for 30 minutes a day, four days a week and also took her students to a half-hour chapel service once a week.

During the summer of 2004, Perich started experiencing dizzy spells that doctors first suspected were the result of a heart problem. As she visited doctors for the eventual diagnosis and treatment of her narcolepsy, she and school administrators agreed she would go on disability leave and then regularly communicated about her condition and return.

"We covered her absence for a long time," says Hosanna-Tabor attorney Deano Ware. "She was already in a two-grade class, and we wound up having to combine three grades just because of the shortage of teachers and trying to pay people."

At the time, Ware says, enrollment in the K-8 school was about 35 students, including his children. Since then, the school combined with another institution and now has about 100 students at two suburban locations.

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