Discriminating Religiously: Hosanna v. EEOC

The Supreme Court recently handed down a unanimous decision stating that a religious organization can discriminate in any way it wants to against any employee considered to be a “minister.” This means, essentially, that a church can discriminate against an employee for any reason, so long as it can show that the individual has “a role in conveying the Church’s message and carrying out its mission.”

In a slightly more technical post, I discuss my legal quibblings with the holding. But here I want to focus on what the case actually means: someone got sick, and her employer decided that, no matter what she or her doctors thought, she probably wasn’t going to be good at her job anymore, or her illness would be too much of a hassle, or maybe her boss was just irrationally scared of sick people — lots of bosses are, that’s why we have the Americans with Disabilities Act. No matter. She got fired because she was sick, and the Court essentially said, too bad.

To be clear, the church claimed that they fired her, not because she was sick, but because she threatened to sue, which violated the church’s tenets. But, I think this is clear pretext — they threatened to fire after she informed them that she had narcolepsy, but before she threatened to sue. Moreover, the church’s claim is irrelevant to the court’s holding. The suit would have been thrown out even if the church had explicitly fired her for having narcolepsy or getting pregnant or being black.

Religion is Special

Firstly, what’s the point of treating religious organizations differently? Well, this makes a certain amount of sense. The Court’s opinion goes into excruciating detail, in rather melodramatic prose, about the history of the Establishment Clause, and the importance in the US of the separation between church and state. The point is, we don’t want the state strong-arming religious organizations into hiring state-approved ministers. The State of New Jersey decides you shouldn’t fire people for being gay, and without an exception for religious organizations, the Boy Scouts would have to hire gay troop leaders, and then the organization collapses in disarray or the Boy Scouts refuse and some sort of Brown v. Board-esque stand-off ensues, and the world comes to an end as we know it. I’m being glib and the Boy Scouts, though inherently religious, aren’t really a religion. But this is the essence of the reason we make exceptions for religious organizations (there’s an actual case on the Boy Scouts, in which the Court held the New Jersey statute unconstitutional as it applied to the Boy Scouts because they are an expressive organization).

But, having a court declare that someone was wrongly fired doesn’t necessarily mean that court is forcing an unwanted employee on someone. Rarely do we ever actually force an employer to hire (or re-hire) anyone. In this case, Perich didn’t even want her job back. Who wants to work for someone who discriminated against them? And who wants to hire an employee who thinks they’re discriminatory and then sued them?

Instead, when an employer fires someone for a discriminatory reason, we generally punish the employer by making the employer pay money. This not only compensates the employee for having lost their job (which in this job market, is literally devastating), but punishes the employer and hopefully teaches them not to do it again in the future.

But, says the Court, punishing a religious organization for firing someone is essentially the same as making them retain the person. A monetary fine for having done something should make the person think twice about doing it again, and making a church think twice about firing anyone because the state might punish it is exactly what the 1st Amendment prohibits.

Frankly, I simply disagree, on legal and policy grounds. I think it’s fine for a church to be constrained in who it can and can’t fire when it’s firing someone for discriminatory reasons unrelated to the religion. If the church fired someone because they’re a heretic or a Red Sox fan? Fine with me. If the church fires someone for being sick? Unless the church actually has a religious problem with sick people, I don’t think they should be allowed to do this.

The Court is afraid that any such ruling would change the essence of the religion, by creating incentives to do one thing or another (either say out loud that you can’t stand narcoleptics or don’t). This sentiment is also pervasive in both concurring opinions.  Frankly, if a religious organization wants to change their religion to explicitly say that narcoleptics are sinners, fine. I can’t imagine that any religion that takes itself especially seriously is going to change its core religious beliefs to ensure that its parochial schools can fire people for getting sick. And if the church secretly believes that narcoleptics are sinners, then the church should have to say so out loud. At least then its parishoners could have a better idea of who their leaders are and what they actually believe.

The Court’s holding in the Boy Scouts of America case was similar: to prevent gay people from becoming members of the boy scouts, the Boy Scouts have to openly say that they have a problem with homosexuality, and that this constitutes an integral part of the message of the Boy Scouts. The Boy Scouts were more than happy to do so, and controversy ensued, as parents who had not previously been aware that the Boy Scouts were particularly religious at all, let alone that the organization was homophobic, reacted strongly, with many boycotting the organization. As it should be: open dialogue about an organization’s beliefs lead people to make informed decisions about whether  or not to support the organization.

Not to mention, we have laws that explicitly outlaw certain religious practices. For example, the courts have decided it’s fine to disallow the ingestion of certain substances (in the famous case, peyote) even if that’s a core part of your religion. The courts also think it’s fine to ban polygamy, even if your god tells you it’s necessary to go to heaven. So, it’s not as though we aren’t plenty involved in telling religions what they are and aren’t allowed to practice. Why should someone be prevented from properly worshipping their god by smoking pot and yet a religious organization is now allowed to fire someone for being Black or becoming pregnant in the name of ensuring the integrity of that church’s beliefs?

Who’s a Minister?

The Court’s answer to the peyote example above is dissatisfying, to say the least. Justice Roberts writes that:

But a church’s selection of its ministers is unlike an individual’s ingestion of peyote. Smith involved government regulation of only outward physical acts.  The present case, in contrast, concerns government interference with an internal church decision that affects the faith and mission of the church itself.

Nevermind that preventing someone from taking part in a religious rite pretty clearly “affects the faith and mission of the church itself.” The Court here reasons that this case is different because it involved a “minister,” and when you’re deciding who can and can’t preach your religion to followers, then you get into real church and state problems. It’s one thing to be a heretical parishioner, but once you become a minister, you become a voice of the religion, and if you’re going to preach your heretical teachings, you’re distorting the whole message of the church. (The holding in the Boy Scouts of America case I mentioned above is different but similar: that forcing the Boy Scouts to “associate” with gay people so distorts its message that state anti-discrimination laws are unconstitutional when applied to the Boy Scouts).

This makes a certain amount of sense, we don’t want to be in the position of forcing the Church of We Hate Children to keep a pregnant minister, since that pretty much ruins the message of the church. But, of course, the Court went further. It refused to apply any real standard for who constitutes a “minister.” The Court, as it so often does these days, feigned a narrow ruling: we’re not saying which other people count as “ministers” and we’re not going to define “minister.” We’re just saying this person is a minister. So don’t blame us if lower courts start calling everyone a “minister.” It’s not our fault, because we decided not to make any rules at all (and, frankly, to ignore existing caselaw concerning how to classify employees, at least as far as I’m concerned).

But the Court, in it’s faux-hands-off approach to the issue, made its ruling clear. The Court decided that Perich was a minister, with frankly very little analysis, despite the fact that the issue is an extremely close one (and plenty of courts have found plenty of people in Perich’s position to not be “ministers” — see the cases cited in the EEOC’s brief). In so doing, the Court set the bar for “minister” extremely low.

Perich was a teacher at a parochial school. The Court admitted that she spends about 45 minutes a day doing “religious” work, which essentially consists of leading a short prayer before class, and teaching one religion class. The rest of the time she taught secular subjects: math, etc. There were also other teachers who performed the exact same functions as Perich who the school considered “lay,” i.e., definitely not ministers. The only difference is that Perich needed to get a certain amount of religious training to not be considered “lay.” Think of it as the difference between a chef who’s been to culinary school and one who hasn’t. They’re both chefs, but one is slightly more esteemed than others, assuming you actually find out about the chef’s background at all.

The Court simply said that if someone has “a role in conveying the Church’s message and carrying out its mission,” and if either they or the church “holds them out” as someone with some degree of authority, they’re a minister. Of course, this could apply to virtually everyone. A receptionist who answers the phone at a charity funded by the Church of Whatever? He’s talking to people on the phone, if someone has a question, he might well answer it.

Moreover, in determining who is or isn’t a minister, every court will have to, as the Court did here, go into ridiculously invasive analysis of the workings of the Church. Here, the Court determined that she performed “important religious functions.” Now, just as we don’t want to force the Church of Vegetarians to hire a carnivorous minister, we really don’t want the courts to be in the business of determining what is or is not an “important religious function” in any given church. The Church of Vegetarians probably thinks their chef performs “important religious functions,” but so might any church with dietary restrictions. Even churches that don’t — that individual is nourishing the congregation. That’s important (at least to me). Do we want a court all involved in determining whether or not you’re lying about what is or isn’t important to your church?

Justice Thomas would avoid the question pretty much altogether, by deferring to a church’s “good faith” claim that someone is or isn’t a minister. In his framework, a church pretty much simply has to proclaim that anyone is a minister, and bam, case over. Doesn’t matter who the person is or why you fired them, if you’re a church and you can say with a straight face that the person was a “minister,” you can fire them.

As it is, the Church has to litigate complicated issues about it’s “message” and who’s involved in conveying it and who has a role in what. Doing so is expensive and irritating. Frankly, the litigation costs alone might deter some churches from discriminating, but without the added benefit of actually giving the fired employee any compensation for their loss.

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