Court and Cross

As a teacher at a small Lutheran elementary school in suburban Detroit, Cheryl Perich had no intention of going to the nation's high court to be part of a national church-state separation debate.

When she wanted her job back after a six-month disability leave and school officials refused, she never dreamed her dispute could be used to clarify whether hundreds of thousands of employees at parochial schools and other church-affiliated institutions deserve federal civil rights protections.

In 2005, Perich, who taught mostly secular subjects as well as some religious studies, simply wanted to return to the classroom after her neurologist determined her narcolepsy was under control with medication. She'd been on disability leave for what was first suspected as a heart problem, and after about six months, Perich's doctor cleared her to return to work.

But the principal and the board at Hosanna-Tabor Evangelical Lutheran Church and School in Redford didn't believe she was ready, so they refused to reinstate her. Perich, a teacher there for five years without incident, threatened "legal action" to get her job back. She was fired.

School officials say she had violated a tenet of the Lutheran faith enacted in school policy — that school employees could only resolve disputes through internal church procedures and hearings.

"Like many Christian denominations, the [Lutheran Church-Missouri] Synod has long taught that Christians should resolve religious disputes within the church rather than sue each other in civil courts," the Hosanna-Tabor attorneys wrote in a U.S. Supreme Court filing.

If it had been a public school, Perich's attorney says, the case would have been simple: She had a clear showing of discrimination under the Americans with Disabilities Act and a well-documented retaliatory firing, both illegal and worthy of damages under federal law. A court could have ordered the school to reinstate her and pay damages and attorneys' fees.

But Perich worked for a church school — an entity that enjoys First Amendment protection from government interference in matters related to establishing beliefs and the free exercise of those beliefs.

The church argues in its court filings that the school officials were executing religiously based employee policies, based on Lutheran doctrine, giving them constitutional protection from Perich's discrimination claim. The court should throw out Perich's lawsuit claiming discriminatory firing, the church and its attorneys say.

"This teaching is based on 1 Corinthians 6:1-11 and is further developed in Lutheran interpretations of that Scripture," Hosanna-Tabor wrote in its Supreme Court brief.

That Bible passage reads, in part, "If any of you has a dispute with another, do you dare to take it before the ungodly for judgment instead of before the Lord's people?"

The two lower federal courts that have considered the case have split. A U.S. District Court judge in Detroit agreed with the school, but when Perich appealed, the Sixth Circuit Court of Appeals unanimously reversed the earlier decision and sided with her.

Now the case's central question about how far constitutional protection for religious freedoms extends into employer-employee matters at religious institutions could be answered by the U.S. Supreme Court.

The high court decided in March to consider the case, leaving legal observers wondering how far they'll go. They could narrowly frame the debate, limiting it to just parochial school teachers. That would still have enormous influence. According to the National Center for Education Statistics, the equivalent of about 314,000 full-time teachers work at the roughly 23,000 parochial schools in the United States.

The Supreme Court also could expand the question to determine a framework for resolving such civil rights vs. religious freedom debates when host of religious institutions act as employers.

Two of the closely related questions Perich's case raises are:

• Does the U.S. Constitution's prohibition from governmental interference in the establishment and free exercise of religion extend to a religious organization's authority as an employer?

• To what extent, if at all, should a religious institution be exempt from federal laws such as the Civil Rights Act and the American with Disabilities Act when operating the "business" of a school, a hospital, a university or a even church-affiliated resale store?

"The court is going to have to use this case to define the boundaries," says Douglas Laycock, a University of Virginia law professor who is representing the suburban Detroit church in front of the Supreme Court. A former University of Michigan faculty member, he has twice argued religious liberties cases before the U.S. Supreme Court and testified in Congress several times. The Becket Fund for Religious Liberty, a nonprofit legal and education institute supporting religious expression, is also representing the church.

'Ministerial exception'

While the federal law in Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex and ethnicity, it does contain a provision in which a religious employer may only hire individuals who practice that religion if their job duties include instruction in church doctrine or other "propagation of a particular religion." For example, a Catholic college is allowed to hire only professors who are Catholics in many circumstances.

Legal challenges since then have upheld that provision and allowed courts to create what's called the "ministerial exception." The legal doctrine, largely crafted in appellate court rulings, has held that ministers and others with significant religious duties can't bring discrimination claims against the churches, temples or mosques that employ them.

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.

In January 2005, Perich and her doctor determined she could return to work by the end of February. But school officials told her they intended to amend the school's employee handbook to request that called teachers resign from their jobs if they were on disability for more than six months, according to court documents.

When the school board met at the end of January 2005, board members and the principal discussed that "it was unlikely that Perich would be physically capable of returning to work that school year or the next," court documents state.

Perich's attorney, Roach, says that's a decision a physician should make. "The school board members had determined that her neurologist was wrong," he says.

In February 2005, Perich presented her work release note from her doctor to the school board, but members asked her to resign. She refused and instead tried to return to work, reporting to the school to teach.

When school officials refused her entry and then told her she would likely be fired, Perich said she would "assert her legal rights."

The board members responded by telling her they would review her call because of her disruptive behavior and then, in March, sent her a letter stating that she had "damaged, beyond repair" her working relationship with the school by "threatening to take legal action." The letter also spelled out the procedure for the church to terminate her employment.

"It was clear evidence of an unlawful retaliation," says Roach, whom Perich found through a referral from an attorney her neurologist recommended. She's not his usual type of client.

Clashing courts

Roach works at the Bingham Farms-based Vercruysse Murray and Calzone law firm, which specializes in employment law. Most of his cases involve trade secret disputes or non-compete clauses in corporate contracts. But he took Perich as a client when she explained her situation and showed him the church's communications to her.

"It really just offended me how she was treated," he says. "I was just trying to help her out."

In March 2005, Roach wrote a letter to the school "explaining that what they were doing was illegal," he says. "I said, 'We need to work this out before it turns into litigation.'"

But in April 2005, the Hosanna-Tabor congregation voted to fire Perich. The next month, she filed a charge of discrimination and retaliation with the Detroit office of the federal Equal Employment Opportunity Commission. Two years later, the EEOC filed suit in U.S. District Court in Detroit on Perich's behalf. Roach says it's "rare" that EEOC actually files a lawsuit.

"The hope is they get it resolved, that there's some kind of resolution without the parties having to spend a lot of money. Cheryl doesn't have the money," says Roach, who will only be paid if Perich eventually prevails.

In July 2008, the church asked for the dismissal of the EEOC's suit that Perich had joined. Eventually U.S. District Court Judge Patrick Duggan complied.

Duggan, who was appointed to the bench by President Ronald Reagan, found that the central question raised by Perich's complaint was if she, as a called teacher, was a ministerial employee. As such she would be subject to the ministerial exception that would prevent her from suing under federal anti-discrimination provisions.

"An employee's status under the ministerial exception is a legal conclusion that rests with the court," Duggan wrote. "...it seems prudent in this case to trust Hosanna-Tabor's characterization of its own employee." He agreed with the church that she was a "minister" for the purposes of determining the exception and dismissed Perich's case.

Perich and the EEOC appealed to the Sixth Circuit Court of Appeals in Cincinnati, and, in March 2010, a three-judge panel reversed Duggan's opinion, setting up the U.S. Supreme Court challenge.

The Sixth Circuit said, in part and holding with previous case law, because Perich's primary duties were secular, not spiritual, she was not subject to the ministerial exception from civil rights law.

"... The intent of the ministerial exception," the opinion reads, "is to allow religious organizations to prefer members of their own religions and adhere to their own religious interpretations. Thus, applying the exception to non-members of the religion and those whose primary function is not religious in nature would be both illogical and contrary to the intention behind the exception."

By the Sixth Circuit's logic, the ministerial exception can be applied if an employee's primary duties — with some question remaining as to how those are defined — are spreading the faith, church governance, supervision of a religious order or supervision or participation in religious ceremonies.

The church appealed, and the U.S. Supreme Court said this year it would consider the question of whether the ministerial exception applies in Perich's case.

New questions for high court

In accepting the church's appeal of the Sixth Circuit ruling, the Supreme Court narrowly defined the parameters of the suit. The court wrote the question it would consider is whether the ministerial exception applies to "a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religions classes, is a commissioned minister, and regularly leads students in prayer and worship."

But there are other inherent issues that must be decided in whatever eventual ruling the high court makes in this dispute. As it's the first time the high court has considered a case with the ministerial exception, for example, the justices will first have to validate the exception itself.

"If they were to question whether the ministerial exception exists at all or if they were to confine it very narrowly just to the guys in the pulpit, that would be of enormous importance," says Laycock, the counsel of record for the church who joined after the appellate court sided with Perich.

Laycock and organizations supporting the church believe the ministerial exception should not only be upheld for parochial school teachers but that the court should eliminate the "primary duties" test the Sixth Circuit used in its decision in the Hosanna-Tabor case.

"If the purpose is to leave important religious functions in the control of the various religions, then you don't achieve that purpose by saying some of the employees who perform those functions are covered by the rule and some can sue. You've got to cover all the employees who are doing the important religious functions," Laycock says.

But Corbin, the Miami law professor, says she doesn't think the exception should apply here or in any employment situation. Exempting religious institutions from secular law, she says, is not required by the free exercise or free establishment of religion as prescribed in the First Amendment.

For example, she disputes the belief, held by the church and its supporters, that courts can't resolve employment claims by ministers because in adjudicating the claims the courts will get entangled with theological questions, a violation of the church-state separation prescribed in the First Amendment.

The Hosanna-Tabor case has the same non-issue, she says: "They're assuming that in order to decide whether or not the school has retaliated against [Perich], the court is going to have to evaluate her spiritual qualifications. If so, they can't resolve the case because that would violate the establishment clause. But this assumption that courts have to resolve doctrinal, theological assumptions is false. This case illustrates that."

Nothing in Perich's retaliation claim was particularly religious, Corbin argues.

"The irony of this case is that applying the ministerial exception does entangle the court in doctrinal questions because the question before the court is: Is she a minister or not?" she says.

Ware, the attorney who is also a member of the Hosanna-Tabor congregation and has been involved from the beginning of the case, says allowing religious institutions exemptions from all the Title VII civil rights provisions would prevent such disputes in the future.

"People [would be] on notice that if you are employed by a religious organization, then there's going to be a separate standard. It's like if I was to go work in a mosque, the mosque would have certain rules and things that I would have to understand that I would have to comply with," he says.

But Corbin sees enormous and horrifying loopholes in the church's argument that an employee threatening legal action is protected grounds for dismissal.

"Under this theory, if you are a minister and you're raped by a co-worker and you bring a sexual assault charge, the church could fire you using the same reasoning: You brought litigation," she says.

Or if a minister had a contract with the church that included salary and the church didn't pay and the minister threatened to sue, the church could just fire that minister on the grounds that Christians don't sue other Christians.

"If that's your principal basis, saying any time you threaten to litigate we can fire you, I think it's a very problematic exception," Corbin says.

Part of Roach's analysis emphasizes the limited role of religion in the disagreement. The only doctrine being cited is the Lutheran beliefs that forbid seeking legal recourse for church-school matters in a state or federal court.

Roach sees that as a hollow application of religion. "Can these religious organizations ... be allowed to discriminate with impunity?" he asks. He cites a 20-year-old U.S. Supreme Court case as providing some guidance for how a decision should be made about the balance between secular law and religious practice: the dispute about whether using peyote — an illegal, hallucinogenic drug — is protected religious practice.

The peyote precedent

In 1990, the Supreme Court decided a case that required them to determine if breaking a state law as part of a religious practice was protected by the First Amendment's free exercise of religion clause: Employment Division, Oregon Department of Human Resources v. Smith.

The suit involved Alfred Smith and Galen Black, who were employees of a private drug rehabilitation organization in Oregon. They were fired because they had used peyote as part of a Native American religious ceremony. Smith and Black sued the state after their applications for unemployment compensation were denied.

After conflicting rulings in state courts, the U.S. Supreme Court held that since the state law prohibiting drug use was not specifically directed toward a religious practice, the state prevailed. In other words, because the law was "neutral and generally applicable" it did not offer any exemptions for religious observers.

Roach and Perich's other supporters see the civil rights law in the same vein: It covers all employers and was not constructed specifically for religious organizations. By the standard established in the peyote case, the reasoning goes, Perich would prevail.

"The fact that [the law] imposes some burden on your religious practice is not enough to reach the conclusion that it violates the free exercise of religion clause if you're dealing with a law of generally applicability," Corbin says.

But Lund says subsequent lower court decisions have addressed whether the peyote case eliminated the ministerial exception, the basis for the Redford school case.

"All of them said it didn't," Lund says. "The idea is that controversies between ministers and their congregations about who gets to the lead the church are indeed 'controversies over religious authority,'" which the peyote decision specifically cited as enjoying First Amendment protection.

As such, how the current high court could apply the peyote decision is up for debate. (Incidentally, just two of the nine justices on the bench in 1990 remain: Antonin Scalia, who authored the peyote opinion, and Anthony Kennedy, who concurred with Scalia's opinion then.)

Six years' turmoil

As the church's attorney, Ware usually handles routine matters: contracts and tax issues, for example. His private practice largely involves representing clients facing foreclosure on their homes. He won't speculate as to what the Supreme Court will do on what he calls "the biggest thing" Hosanna-Tabor has faced.

"It's hard to predict. The spectrum of what's at stake here can go from things staying the way they are to having a new standard put out," he says. "At this point I'm sure they're going to do something. ... One way or another there's going to be some change after this ruling as to how the [ministerial exception] standard is applied or whether it's still even good."

Perich, who declined through her attorney to be interviewed by Metro Times, had no intention of being the lightning rod for such a potentially far-reaching opinion, Roach says. She just wanted to work.

"For her, this is scary and disconcerting," Roach says. "Her life has been in turmoil for six years, ever since she lost her job. She has no real source of income, she has not received disability benefits, she's had no unemployment. She wasn't entitled and it would have expired years ago."

Until the Supreme Court took the case, its impact had been limited to Perich's situation; now the stakes are high.

"It's certainly an increased burden when it's something so important that goes much, much more beyond her individual problems," Roach says. "I think everybody would feel quite badly if we lose this case and it sets a precedent for all these employees to be no longer protected."

After October's oral arguments, a decision is expected early next year.