President Barack Obama’s Department of Justice will ask the Supreme Court this week to eliminate a long-standing legal precedent that protects religious organizations from government regulations.

The department “is going against what almost every court has decided … it has has taken an outlier position,” said Richard Garnett, a law professor at the University of Notre Dame and a senior fellow at the Center for the Study of Law & Religion at Emory University.

“It does seem to do that,” said Barry Lynn, who has run Americans United for Separation of Church and State since 1992, after working for the ACLU for several years. “It is quite unusual because this administration has not been good on … church-state issues,” he told TheDC.

On Wednesday, lawyers will present their oral arguments to the Supreme Court in “Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.”

Cheryl Perich taught religion and a secular subject at the Michigan Hoasanna-Tabor school until she fell ill in 2004. When the school replaced her, she sued under the Americans with Disabilities Act. She lost the first round in 2004, but her lawyers persuaded the 6th U.S. Circuit Court of Appeals in Cincinnati to rule in her favor last year.

The church had argued that her job was not covered by employment law because it was religious and so shielded from federal regulation under the traditional “ministerial exception.” That’s a long-standing term used in courtrooms to describe religious employees’ exemption from secular employment law.

The exemption is a legal spin-off from the Establishment Clause of the Constitution. That is part of the First Amendment, and was adopted in 1791 to shield religious institutions from government regulation, such as the creation of state-funded established churches similar to the Church of England.

The administration’s legal brief, already submitted to the Supreme Court, asks the court to eliminate this ministerial exemption, and to make all but a few core religious jobs subject to secular employment law. “The Establishment Clause … provides no support for a categorical ministerial exception that would bar adjudication of this case,” said the August brief, signed by Solicitor General Donald Verilli and Thomas Perez, who heads the civil rights division.

If the court does affirm the ministerial exemption, it should be narrow and should not cover parochial teachers, according to the administration’s plea. “Plaintiffs in that category should be able to proceed with their claims, subject to careful trial management by the district courts and appropriate sensitivity to [church-state] entanglement concerns,” the brief said.

The ministerial exemption “needs to be narrowly drawn,” to cover only clerics who spend a “primary or overwhelming percentage of time devoted to religious education,” Lynn said. Otherwise, job applicants and employees will have no idea how little protection they have until they’re treated badly, he said.

“There are a lot of scare tactics that somehow there will be police coming into the churches … most of that is absolute nonsense,” Lynn said. “I don’t think there will be any difficulties.”

But if the administration’s claim is approved, government-appointed judges “could impose ministers on churches against their will,” said Luke Goodrich, a legal council at the Becket Fund, a religious-liberties group.



The government’s claim would allow judges to impose employment-related settlements on churches once the plaintiffs’ lawyers persuade a jury that the church had violated an employment-related law, he said. In practice, that could mean a judge could force an orthodox synagogue to employ an unorthodox rabbi who had successfully won a discrimination case, he said.

Moreover, once that legal threat had been made clear by a few judicial decisions, churches and synagogues all over the country would be pressured to change their decisions by the looming threat of a lawsuit, he said. Few churches have the funding or the legal skills to be sure of avoiding an expensive courtroom defeat, he added.

“Over half the churches in the country have 50 members or less … so they will be unable to make [employment-related] decisions based on religious beliefs,” Goodrich said.

“My sense is that government thinks that [its] interest in fighting discrimination trumps religious freedom,” said Garnett. But, he said, if “separation of church and state — which has been a foundational principle for a long time — means anything, it means the government should not be getting involved in deciding who is a minister or a religious teacher in a community.”

“Those are questions we decided to keep the government out of,” he said.

“I’m very confident that [the Department of Justice will lose] and I would not be surprised if you have more than five” of the nine judges ruling against the Obama administration, he said. The decision won’t be announced for several months.

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