Lutheran and Yet Not Lutheran

A Church School Tests the Dilemma

of Church and State

Marie A. Failinger

Even from the emails, one can sense the growing desperation.1 Concordia Lutheran School, a ministry of Hosanna-Tabor Evangelical Lutheran Church (LCMS) in suburban Detroit, has been waiting for its called teacher, Cheryl Perich, to come back from disability leave that officially started in the fall of 2004. She has had unexplained fainting spells for several months, starting at a golf tournament in June 2004. At first, the doctors cannot diagnose her condition because her symptoms do not fit standard patterns, but eventually they determine that she has narcolepsy. Then there is the problem of treating her: there is medication, but it takes a while to find the right dosage, and for the medicine to have its full effect. Meanwhile, Perich’s class has been bunched together with two other classes, until the school board decides mid-year to hire a replacement to take the class from January through the rest of the school year.

In the emails that go back and forth between her and Perich, principal Stacey Hoeft seems nervous: What do the doctors say about Perich’s condition? [Hoeft must be thinking: We have told her that we are worried about her continuing symptoms. Will it be safe to take her back? What will happen to the children if she collapses during class? Will she be able to get to work safely; and if not, what will we do about that?] When will she be able to come back to school? [What will we do with an extra teacher when we can only afford to pay one? Will she end up having to go on sick leave again if the medication doesn’t work? Then what will we do?] Does she understand that the kids have already had three teachers this year? [How will the children do on standardized tests when they’ve been shuffled from pillar to post? Will parents pull their children from our already small school because of this disruption? However will we replace the income in this economy?] Hoeft first unsuccessfully hints that she would like Perich to resign. Then she pointedly asks Perich what she might do at the school given that they can’t put her back into the classroom. Hoeft almost snarls, “You haven’t even stepped foot into our building since last June. There will have to be some major preparations to be made to provide for a smooth return. I’m sorry if I don’t sound excited for you.” Meanwhile, apparently struggling with the burden of paying 30 percent of Perich’s $34,000 salary plus benefits (she has been denied disability insurance benefits), the congregation asks Perich to accept a peaceful release in exchange for the agreement to pay a part of her health insurance benefits. A peaceful release is a covenant that LCMS schools and teachers reach to part on good terms where there is reason to end the teacher’s service, while making the teacher eligible for further calls.

Perich, until now seemingly optimistic that everything will work out and that she will be able to return as soon as she is properly medicated, reacts abruptly to these mounting requests for clarity about when she can come back to work and to consider a release from her position. She shows up the morning of February 22, the first day she is medically cleared to return to work, and refuses to leave until she receives a letter attesting that she reported for work. The principal explains that she cannot reinstate Perich this school year, because the school now has the financial burden of a contract to pay the substitute teacher for the rest of the year. She reminds Perich that part of her commissioning as a called teacher included an agreement to mediate the dispute through the reconciliation process provided by the LCMS. Perich makes it clear that she will sue if she is not reinstated. Clearly chagrined, the principal confers with members of the school board, and they decide to ask the congregation to rescind Perich’s call. The grounds are Perich’s “insubordination and disruptive behavior” and her refusal to invoke the LCMS reconciliation process before going to civil authorities.

This small Lutheran church school dispute became a nationally debated case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, decided by the Supreme Court on 11 January 2012. At the heart of the Supreme Court case was a controversy over the so-called “ministerial exception” to federal ­anti-discrimination statutes such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act. Until the Sixth Circuit Court of Appeals decision in Hosanna-Tabor, finding that Cheryl Perich was not a minister within the exception, all circuit courts to rule on the issue had recognized a ministerial exception in order to avoid First Amendment problems caused by federal and state government interference with religious bodies. In brief, the exception prohibits employees of religious bodies called as ministers (or the tradition’s equivalent) from bringing employment discrimination and related claims to secular courts. The case drew over thirty amicus (friend-of-the-court) briefs, including from humanist and atheist groups, the American Jewish Committee, the Muslim Americans Public Affairs Council, the United States Conference of Catholic Bishops, and many Protestant denominations.

When the Court issued its ruling in Hosanna-Tabor, it leaned heavily on historical practice and upheld the ministerial exception, noting that government interference in religious bodies’ decisions about who will be a minister would violate the Free Exercise Clause, which protects the right to shape a religious group’s faith and mission through its ministerial positions. Such intrusion, the Court held, would also violate the Establishment Clause, which prohibits the government from being involved in ecclesiastical choices to hire ministers.

In some senses, the Court’s decision is both broad and narrow. It is narrow in the sense that the Court limited its holding only to religious “ministers” and only with respect to employment discrimination. Thus, it did not hold that all religious employees would be covered, nor did it decide in this case whether the exception would extend to violation of child labor laws, or other breach of contract or tort actions by ministers against their congregations, such as failure to pay a salary, or slander against the pastor.

However, the decision is broad in giving religious communities a significant amount of discretion in naming which of their employees are “ministers” to whom the exception applies. In Perich’s case, the Supreme Court held that the exception applied to her even though non-called teachers at Hosanna Tabor performed the same duties she did, and even though most of her day was not spent in religious activities such as teaching the faith or prayer.

Because the scope of the decision was so narrowly decided, we can expect future litigation over who is a minister, particularly in those religious bodies that do not have formal educational and call processes. The Supreme Court implied that employees whose work is teaching the faith or doing traditional ministry are likely to fall within the exception. However, the court took a careful look at the specifics of the LCMS call process, Perich’s title and religious duties, and even the fact that she used the title of called minister to claim a tax exemption for her housing. We can also expect that religious organizations will try to extend the ministerial exception to other kinds of lawsuits brought by their employees, such as disputes over healthcare packages or situations where one church employee has damaged the reputation of another.

The Hosanna-Tabor conflict, borne of fear on both sides, also contained some unfortunate missteps: the case would not have gotten as far as it did if Hosanna-Tabor had simply refused to let Perich come back to work in the middle of the school year because it had replaced her rather than taking the extra step of revoking her call. Generally, disability discrimination law recognizes an employer’s right not to accept an employee back immediately from a disability leave when it would be an undue hardship on the employer. The school might have been able to make a good case that it could not pay both Perich and the substitute teacher for the rest of the year. Or, if Hosanna-Tabor had given Perich the option of returning the next school year, and she had then persisted in being disruptive or hard to work with after she returned, the school would have had legally uncontestable grounds to terminate her.

Similarly, if Hosanna-Tabor had not instituted the call revocation process and simply insisted that Perich provide evidence that she was able to perform all of her duties without risk to her students, and Perich had not been able to provide such evidence, it is very unlikely that they would be liable under the Americans with Disabilities Act. Perich might have similarly been on stronger ground if she had not threatened a lawsuit, since LCMS procedures for revocation of a call are very strict. A lawyer might have told her that the ministerial exception would be tough to overcome.

One moral of the story would seem to be: lawyers are worth spending a few bucks on. Some competent legal advice on either side would likely have forestalled this lawsuit.

From a Lutheran perspective, however, the case is one big mess of paradox and difficulty. In the lower courts, we see Perich, a called teacher, arguing that she is not a minister of the church so that she can win her employment discrimination suit against Hosanna-Tabor. We see her emphasizing how infrequently, outside her thirty-minute religion classes, daily devotions and prayer, and the occasional chapel service she leads, she ever talks with her students or their parents about God. We see her brushing off a question about whether the Lutheran teacher colloquy process indoctrinated her into the Lutheran faith by noting that, as a lifelong Lutheran, she didn’t need indoctrination. Yet she seems at a loss to articulate what her colloquy classes or anything she learned as a “lifelong Lutheran” taught her about the Lutheran faith. Indeed, she complains about having had to take more colloquy classes than church teachers who went to Lutheran colleges. So much for a strong witness by a called teacher of the church.

On the other side, after original expressions of concern for her well-being, the communications from Hosanna-Tabor to Perich take on a growing tone of annoyance that she does not seem willing to give up her job to meet the school’s needs. We hear Hosanna-Tabor’s indignation at the fact that the congregation has carried Perich on salary and benefits for these several months, and she has repaid them by demanding reinstatement and threatening a lawsuit, neither of which the school can likely afford. We see the church council arguing that Perich is disruptive because she is not willing to invoke the church’s reconciliation process, all the while extending no olive branch to her. That she is sick and probably feeling threatened because revocation of her call, or even a peaceful release, might spell the end of her Lutheran teaching career does not seem to enter their minds.

On a broader canvas, we see Hosanna-Tabor Evangelical Lutheran Church arguing that Perich is a minister of the church and thus that they have every right not only to terminate her salary and benefits, but to revoke her call for doing nothing more than threatening a lawsuit. We see the church arguing that the state has no business questioning whether the church can take her livelihood or cripple future employment prospects, because this is a religious matter exempt from secular scrutiny. We see the Lutheran Church-Missouri Synod, in its amicus brief, arguing that the calling of a teacher is from the Lord, one that can be revoked only for the most egregious sins or for the inability to perform the teacher’s calling. Yet, the LCMS sides with Hosanna-Tabor, urging the state not to intrude into the church’s decision to revoke her call simply because she strenuously demanded her job back.

For a Lutheran, such a conflict is no surprise. Simul iustus et peccator.

The dispute, however, provides an opportunity to consider how Luther understood the relationship between the law of the state and ecclesiastical law, one subject of Johannes Heckel’s seminal 1953 work Lex Charitatis, which was recently republished by Eerdmans in a new translation.2 Heckel, a twentieth-century German Lutheran law professor,3 argued that Luther recognized four types of law, distinct but not separable, all emanating from God’s hand: divine natural law, divine positive law, secular natural law, and secular positive law.

The role of divine law is not to command external conduct of Christians or others. Rather, divine law creates “a God-formed will,” a heart “seized by God’s spirit,” an uncoerced, joyful surrendering love that binds the individual to God while assuring him or her of God’s love (46–48).Divine natural law, emanating from God the Creator, addresses all human beings “in the status of the incorrupt nature,” grasping the whole person. This eternal law serves as the model for all law valid before God (48). Law is “legislated” in the form of the Word of God piercing the human will, and that will becomes “drowned” in the will of God (48–49). Unlike the Golden Rule or other understandings of natural law that lay out rules of proper behavior, Luther’s understanding focuses on surrender of the heart, and he argued that such surrender is an act of God, not a good work of the individual. Thus, the only work that divine law demands from the Christian is, paradoxically, love for the Creator that only God can make possible.

Divine positive law, complementing divine natural law, is instituted to order marriage and the church, the two forms of communal life in direct relationship to God (51–52). Each of these orders is merely a “vessel for the intentions of the Spirit, only a sign for what purpose these institutions should be used according to God’s commandment. Only when they are used spiritually (usus spiritualis) are these institutions divine orders” (52).

Heckel categorizes what we often casually call natural law as secular natural law, that is, the law relevant to the governance of this world: an example is the Golden Rule. But in Luther’s view, secular natural law is perhaps the most dangerous form of law. While it is the work of God in the world reflecting human solidarity and community, it is also inevitably corrupted by human sin. Indeed, in a familiar Lutheran refrain, the very recognition and articulation of natural law can become a form of self-righteousness, a confidence that we know what God demands of us and that we can obey the law of our own accord (56). Still, secular natural law and the secular positive law that carries out its moral power—for example, the codification of the natural law in the Decalogue—are the good work of God. With God’s presence, secular law can execute divine punishment or serve as a tool of God’s preservation of people and communities (even a “hidden law of love”) in our external, earthly life (67). That is, so long as the secular law does not overflow its jurisdiction.

And so the conundrum of the Lutheran church in framing a message about the proper relationship of state law and church law. Ecclesiastical governances naturally attempt to reflect the impetus of divine law. Church officers try to create secular positive laws, rules of behavior and dispute resolution processes that reflect God’s love and work in the world, that operationalize our responsibility for the common good. Yet, they are doomed to failure precisely because they will be corrupted by the sin of those who construct and utilize those structures and processes. In Luther’s view, according to Heckel, ecclesiastical ordinances such as the LCMS reconciliation process should be created by a consensus of the believing church, not of the outwardly manifest church. However, that presents a difficulty since the believing church is always hidden, and it is not easy to tell real believers (who are still sinners) from non-believers who may belong to the manifest church. Ultimately, the manifest church will have to produce these legal procedures. Even though such church rules will be made by both believers and non-believers who only outwardly appear to be believers, these rules must still reflect the “basic rights” of Christian brotherly love, Christian equality, and Christian freedom (188–190).

Because they are “rules” for the Christian community and not the world, even though they are properly constituted by the church, church ordinances must never “have the appearance of a sovereign decree” (190). And these church ordinances, whether congregational or denominational, can be ignored in good conscience; indeed, they must be ignored “when Christian love of the brother demands it” (191). This seems like an impossible paradox to modern ears—how can there be a rule that does not bind, a governing structure that does not demand obedience from those governed, an effective law that can be ignored by its members whenever they conscientiously dispute its decisions? Luther saw this paradox and still maintained that a church body may order itself through rules and even discipline its members, but only when no question of brotherly love, equality, or freedom is at stake. That position is not much apparent help in resolving whether Hosanna-Tabor or the LCMS should be able to demand that Cheryl Perich pursue its reconciliation process or accept its decisions about her call as binding.

On the other side of the core dispute in Hosanna-Tabor, which has been resolved for only a narrow class of cases, we must also consider that Luther saw the secular positive law of the state as a gift from God, necessary to restrain the evil that is so harmful to persons and human community. The American law on disability discrimination, as one example, authorizes the federal or state government to step into a dispute between a powerful employer and powerless (and disabled) employee. That law demands that employers see and accept disabled people for who they are: qualified, competent individuals who simply want to do their jobs with dignity and on terms reasonably similar to others with modest accommodations for their disability if necessary. Employers who use their power to take jobs from disabled employees when it is not necessary for their business or institutions can be forced to reinstate employees or pay them for the suffering they endure when their jobs are lost. The retaliation rule is an important adjunct to the non-discrimination law, because most employees will be afraid to raise claims of discriminatory treatment if their employer can fire them for complaining.

In the Lutheran understanding of the role of the state, to counter evil and provide for the common good and human dignity, such a law would seem like a welcome operationalization of the secular natural law. Christians are called to promote the well-being of the secular government, not because they are required to live under the secular law, but because their willingness to do so is a witness to non-believers.

Working this out from a Lutheran perspective, there might even be some logical sense in suggesting that if a church body doesn’t treat its employee with brotherly love when he or she complains of unfair treatment, the church body should be governed by the standard applied to secular society and its government, because then Christians are acting just like unbelievers, not like redeemed people. And, Luther thought, unbelievers are under the secular positive law and secular institutions that constrain their wickedness.

However logical it may seem to hold Christians to secular law when they are thinking and behaving like all other sinners in their ecclesiastical roles, that solution also appears to be anathema to Luther. Like Heckel, he sees state intervention in matters of church discipline to be jurisdictional overreaching, since the state is a distinct governance, separate from church and family. Indeed, the secular order has a responsibility to protect the manifest church against any interference, even the government’s own interference, so that it may be free to carry out its Gospel mission in the world.

Now comes the Catch-22: if the church supports the government’s retaliation rule and its intrusion into relationships within the ecclesiastical order, it has surrendered the separate jurisdictional role of the church to the state, in violation of Luther’s understanding of the limited jurisdictions of these two governances. On the other hand, if the church rejects the right of the state to step in and sanction the church, for example, by demanding that its employees stay within the church fold to resolve disputes and punishing them for not doing so, as in Perich’s case, then it is rejecting a secular positive law that, in the main, furthers the common good and thus is also part of God’s work in the world.

There are at least two ways out of this circularity, though one seems to demand almost the impossible of fallen human persons. The first, perhaps “cleaner” way is for Lutherans to recognize voluntarily the gift of God in the law of the state, by acceding to a very limited version of the “ministerial exception.” The church might, in other words, concede that all functions of church employees should be governed by the state law (secular positive law) unless they directly implicate the gospel in the most critical office of public preaching (ministerium verbi publicum). Then, the Lutheran churches would agree that employees of all other church expressions such as Christian schools, nursing homes, and the like should have access to the rights and privileges granted by US ­non-discrimination law, including the legal rules against employer retaliation.

Since the ministerial exception is now the law of the land, Lutherans might pursue this more limited exception by recognizing in their governing documents and behaviors that they accept the authority of the secular law over all but a limited number of positions or functions. For example, Lutherans might simply choose not to invoke the ministerial exception when they are sued: it is unlikely that a court would raise this question on its own if the party benefitting from the exception, here the church, does not attempt to erect it as a shield.

As suggested, while the “limited ministerial exception” solution does collapse the apparent logical circularity I have described, for Luther there would still be a problem with ceding jurisdiction over church employees to the state, even voluntarily. Such an approach seems to deny Luther’s insight from scripture that the church may call others besides pastors to perform tasks to serve the church’s common life. If a parochial school teacher or a church social worker is called, and if he or she is living out his or her calling as a Christian witness, the intrusion of secular law might compromise the message of the Gospel in their interactions just as much as if a pastor were called to account by secular law as he or she carried out the wide range of pastoral duties that the Supreme Court recognizes as embodied in that role.

The other, more difficult way through this conundrum is for Lutherans to be more ­self-critical, continually challenging church structures and ecclesiastical law and processes—here, the LCMS reconciliation process and the actions that Hosanna-Tabor and the district took under it—using the spiritual law of love as Heckel describes it. The spiritual law of love requires a Christian to lay down his very life for the other, freely, gladly, generously. Such a law well transcends the demands of American discrimination law, which sets a minimum expectation of ­non-discrimination and non-retaliation. The spiritual law of love requires of Christians more than attention to contracts, budgets, customer satisfaction, or even “disruption” on Hosanna-Tabor’s side, or medical bills or job prospects on Perich’s. It requires Christians to give up their fears that God will not provide enough for all, that God will not see a way to preserve Christian institutions without a “customer is king” mentality that encourages individual Christians to look at Christian institutions as means to their personal goals. It also requires Christian congregations and church bodies to renounce the mentality that the Church’s mission goes only as far as its members are willing to give of “their” money and property to support it.

Still, we should be very careful before holding Hosanna-Tabor or Cheryl Perich up for ridicule as examples of Lutherans behaving badly. They represent all of us. We can all see in this parable how we who live in a market economy fail our Creator and Redeemer and Sanctifier every day. We can see how far we have fallen from the practice of the early church, in which material blessings were joyfully and freely held in common for the need of the other. Instead, many Christians have come to believe that “our” money, property, jobs, benefits, indeed our time and other resources are personal property to keep or spend any way we like and that the misfortune of others is “their” problem. The Lutheran witness reminds us that we cannot secure ourselves, or perhaps even the success of our institutions, by marketing, budgeting, sales, employment contracts, focusing on customer satisfaction or the like. If we try, we are replacing the real source of our security with false idols. It is especially ironic and cruel that the church has re-made itself in the image of the market economy, rather than asking the market economy to re-make itself for the common good. If the church is just like the world, then the Cheryl Periches and the Hosanna-Tabors will have good reason to fear, to look out for their own economic interests, to treat each other as potential enemies in a secular battle rather than brothers and sisters in Christ. And, indeed, because of sin, we know that many times, they will. But if we at least keep reminding ourselves that trusting in the safety that only God can provide will give us everything we need—that is to say, our freedom to be entirely slaves, entirely given over to the other’s welfare—then a Christian witness is sometimes within our grasp.

Marie A. Failinger is Professor at Hamline University School of Law and is editor of the Journal of Law and Religion.

Notes

1. The facts described here are from the Supreme Court opinion and record filed in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, No 10-553 (decided 11 January 2012).

2. The 2010 English translation of Lex Charitatis: A Juristic Disquisition on Law in the Theology of Martin Luther was the work of Valparaiso University Professor of History Gottfried Krodel with the help of Valparaiso University School of Law Professor Jack Hiller (whom Krodel credits with instigating the project) and Valparaiso University Professor of German Henning Falkenstein.

3. Heckel taught at the University of Munich and was a member of the Bayerische Akademie der Wissenschaften, where he carried on research on Luther for forty years until his death in 1963. Whether his late introduction to the English-speaking world is due to the late translation of his work or to some historians’ claims that he was an academic apologist for ­anti-Semitic arguments of the Third Reich is not clear to me.

Works Cited

Brief for the Petitioner, Hosanna-Tabor Evangelical Lutheran Church and School, v. EEOC, No 10-553. http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_petitioner.authcheckdam.pdf.

Brief of the Lutheran Church-Missouri Synod as Amicus Curiae in Support of Petitioner, available at American Bar Association Supreme Court Preview. http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_petitioneramculutheranchurch-missourisynod.authcheckdam.pdf.

Heckel, Johannes. Lex Charitatis: A Juristic Disquisition on Law in the Theology of Martin Luther. Gottfried G. Krodel, trans. Grand Rapids, Michigan: William B. Eerdmans, 2010.

Hosanna Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, No. 10-553, ___ U.S. ___ (11 January 2012).