Narrative Pluralism and Doctrinal Incoherence in Hosanna-Tabor
Frederick Mark Gedicks
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The federal laws prohibiting employment discrimination are among the most important statutes ever enacted.1 They constitute the most significant federal commitment to eradication of the unjustified discrimination in the economic sector that has persisted since Reconstruction. The laws nevertheless did not address one significant issue: whether and how anti-discrimination norms should apply to ministers and other religious leaders employed by churches and other religious congregations.2
The laws are not wholly silent, to be sure. They allow religious groups to discriminate in favor of members of their own religion when they hire
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leaders,3 thus avoiding (what we might hope are) hypothetical absurdities like a Baptist minister who sues because no synagogue will hire him as its rabbi. The laws do not, however, generally exempt churches from statutory sanctions against racial, national-origin, sex, or disability discrimination when they deal in the employment of ministers and other church leaders. By their terms, the federal anti-discrimination laws would prohibit the Roman Catholic Church from discriminating on the basis of sex in filling positions with ordained priests, or the African Methodist Episcopal Church from discriminating on the basis of race in hiring and firing its congregational ministers.
The federal courts of appeal handled this issue by reading a "ministerial exception" into federal anti-chscrimination laws. The exception originated as a rather aggressive statutory interpretation of Title VII of the Civil Rights Act of 1964.4 Later decisions constitutionalized the exception, rooting it in one or both of the Religion Clauses or in the First Amendment generally.5 Some version of the exception has now been adopted by every judicial circuit.6
Commentators have long disputed the doctrinal basis of the ministerial exception,7 and until last term the United States Supreme Court had
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never passed on its constitutional validity. In Hosanna-Tabor Church & School v. EEOC,8 however, the Court held for the first time that the Religion Clauses require the ministerial exception to federal antidiscrimination laws.9
Hosanna-Tabor is filled with incongruous stories and doctrinal inconsistencies. First, there are at least three plausible accounts of what happened in Hosanna-Tabor, each of which is in tension with the others. Second, the Court's endorsement of the ministerial exemption as a necessary feature of church autonomy overlooks that churches subvert autonomy as often as they protect it.10 Third, the exception described by the Court is a strange mixture of rights and structure that is likely to be carved up with exceptions and limitations.11 And finally, the
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Court goes to this trouble to protect a conception and practice of institutional religion that are quickly passing away.12
A. Religion/Law/Life
1.Believers. The Court's story of the case begins with the plaintiff Cheryl Perich, a member of the Hosanna-Tabor Evangelical Lutheran Church (Missouri Synod) and a teacher at one of its "ministries," a K-8 Lutheran school.13 Perich was originally hired as a "lay" teacher on a one-year contract, but near the end of her first year, the Hosanna-Tabor congregation appointed her as a "called" teacher. A called Lutheran teacher has completed a course of theological study, passed an oral faculty examination, been endorsed by his or her local synod, and called by a congregation. Called teachers are formally commissioned "ministers," and may be terminated only for cause upon a supermajority vote of the calling congregation.14
Once called, Perich taught at the school for several apparently uneventful years. Towards the end of the 2003-2004 school year, however, she began to suffer health problems that interfered with her ability to teach.15 Perich began the 2004-2005 school year on disability leave and was eventually diagnosed with narcolepsy, a condition which caused "sudden and deep sleeps from which she could not be roused."16
On January 27, 2005, after her condition had been treated and stabilized with prescription medication, Perich notified the school that she had been medically cleared to work and planned to begin teaching again within a month. The school principal responded that the school had already filled Perich's position with a lay teacher and thus had no class for her to teach; she also expressed doubt that Perich was in fact ready to return to teaching. Within a matter of days, the school board endorsed this judgment and advised the congregation that Perich would be incapable of returning to teach for at least the current and the following school year. The congregation accordingly voted to offer Perich a "peaceful release" from her position under which she would voluntarily resign in exchange for partial payment of her health insurance
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premiums for the remainder of the calendar year. Perich declined to resign and instead provided written certification from her doctor attesting that she was capable of working. The school reiterated that it had no position for her to return to and again urged her to resign.17
Nevertheless, Perich appeared at the school to resume teaching on February 22, refusing the school's request to leave until she received a written certification that she had reported for work. Later that same day, the principal advised Perich that her earlier "insubordination" would probably result in her termination.18 Perich replied that she had consulted an attorney and "intended to assert her legal rights" under the Americans with Disabilities Act (ADA).19 That evening, the school's governing board initiated the process of rescinding Perich's call, and subsequently gave her notice of its recommendation that she be terminated from her position as a called teacher. The board's stated reasons for termination were Perich's behavior on February 22 and her later threat of legal action, the latter of which violated Lutheran doctrine mandating that ministers resolve their differences within the church and not in a secular court. The congregation rescinded Perich's call and formally terminated her as a teacher on April 11, 2005, less than three months after Perich had advised the school of her diagnosis and intention to return to work.20 In short, the Court tells the apparently straight-forward story of a Lutheran congregation defending the integrity of its beliefs by terminating a Lutheran minister who had violated Lutheran doctrine.
2. Discriminators. The timeline alone contradicts the Court's story that Perich was fired because she violated Lutheran doctrine prohibiting ministers from resolving their differences in secular litigation rather than internally through the church: Even in the Court's version of events, Perich did not threaten legal action until after the principal had informed her that the school was going to fire her.21 A fuller consideration of the record reveals the story of a principal, school board, and congregational leader actively working to keep a narcoleptic off their faculty—the very sort of discrimination prohibited by the ADA and, ironically, by the school itself.22
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This story begins with Perich's taking disability leave at the beginning of the 2004-2005 school year on the express understanding that her position would be held for her while she recovered.23 Perich's doctors had a difficult time pinpointing the source of her illness, but on December 16, 2004, Perich advised the school that she had been definitively diagnosed with narcolepsy, and that medication would allow her to return to work within two to four months.24
On January 10, less than a month later and despite her knowledge that Perich was planning to return in the near future, the school principal filled Perich's position for the remainder of the school year.25 The school also viewed this new teacher as a likely permanent "called" replacement for Perich.26 On January 19, the principal inquired of Perich whether she would be subject to restrictions when she returned; in reply Perich communicated her doctor's prognosis that she would be "fully functional with the assistance of medication."27 Two days later, the principal advised Perich of the school's intention to amend its disability policy to require that called teachers resign when their disability leaves reach six months; by this time, Perich had been on disability leave "for over five months."28
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On January 27, Perich advised the principal that she would be medically able to return to work in mid or late February.29 Three days later, in direct contradiction to the opinion of Perich's doctor and without consulting any reliable medical authority,30 the school board concluded that Perich would be unable to work for the rest of the current school year, as well as the year after that, and recommended that the congregation terminate her call.31 In short order the congregation voted to ask Perich for her voluntary resignation,32 and consulted an employment law attorney about terminating her.33 Although the board and congregational leaders lacked any information or expertise about the effectiveness of prescription drug treatments for narcolepsy, they repeatedly expressed their concern that Perich's return would threaten the safety of children in her classroom.34
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Within a week, Perich's doctor cleared her "to return to work without restrictions on February 22," which constructively terminated her disability leave as of that date.35 The board and congregation ignored the doctor's clearance,36 and they repeated their request for her resignation.37 On February 21, Perich emailed the principal that she intended to report for work the next day, but when she showed up...
