Religious Autonomy in Europe and the United States--Four Recent Cases

Abstract

On 11 January 2012, the Supreme Court of the United States issued its judgment in Hosanna-Tabor Evangelical Lutheran Church and School v Equal Employment Opportunity Commission (EEOC) (132 S Ct 694), the most important religious freedom case to come before the Court since the 1990 Employment Division, Department of Human Resources v Smith (494 US 872). In Smith, the Court held that ‘neutral laws of general applicability’ trump claims to free exercise of religion. The neutral law in question in Hosanna-Tabor was the Americans with Disabilities Act, and the claim of applicability was brought by the EEOC in behalf of a fourth-grade teacher, Cheryl Perich, who had been diagnosed with narcolepsy. Perich, a ‘called’ employee of a church and school that comprise a member congregation of the Lutheran Church–Missouri Synod, was dismissed for insubordination after she threatened to sue the school when it resisted her premature return from medical leave. Her threat, said the church, violated the Synod’s belief that Christians should resolve their disputes internally. In the ensuing litigation, the church claimed the suit was barred by the ‘ministerial exception’, a non-statutory, constitutionally compelled exception to the application of employment-discrimination and civil rights statutes to religious institutions and their ‘ministerial’ employees. The teacher claimed that the church’s invoking the exception was a pretext for firing her for non-religious reasons, and in any event she was not actually a minister. The district court granted summary judgment for Hosanna-Tabor, which had treated Perich like a minister and had long held her out to the world as such. The Sixth Circuit remanded, recognizing the ministerial exception but accepting Perich’s arguments that she did not qualify as a minister because of the small percentage of time she spent dealing with religion in her fourth-grade classroom. Given that the doctrine had been ‘adopted and developed’ by all 12 federal circuits over a period of 40 years, the existence of the doctrine was not thought to be in doubt when the Supreme Court agreed for the first time to consider it.