LCMS school in Supreme Court case

April 2nd, 2011 Post by

The Supreme Court will decide whether a teacher at an LCMS school can sue under a federal law against workplace discrimination. The issue is whether the Americans with Disabilities Act applies to decisions involving “ministerial employees” such as teachers.

While I think that religious institutions should be exempt from federal laws such as these (it just gets too tricky navigating the First Amendment free exercise clause), I also think the case is interesting for what it says about the terminology we use to describe commissioned teachers. The CNN story is here. Here’s a sample:

Court records show Cheryl Perich went on medical leave for narcolepsy in 2004. When she tried to return several months later to the Hosanna-Tabor Evangelical Lutheran Church and School, officials refused to accept her, saying a substitute had been hired to complete the school year.

After weeks of often acrimonious discussions between herself and the school, Perich was fired for insubordination and “regrettable” conduct toward church leaders. She then complained to the federal Equal Employment Opportunity Commission, which then sued the church on her behalf.

Perich had been hired five years earlier, and eventually became a “called” teacher, meaning she could not be fired without cause.

Assigned to third and fourth grades, she led instruction in math, language arts, social studies, gym and music, with much of the curriculum identical to the local public schools. Perich also taught a religion class four days a week, and engaged in daily prayers and devotionals with her students. The religion-based activities typically took up about 45 minutes of the seven-hour school day.

She also led chapel services with her class twice a year, on a rotation basis with other instructors.

The faculty has two types of teachers – “lay” employees who are on one-year contracts; and called teachers like Perich who have completed a formal colloquy, receiving a certificate of admission into the teaching ministry. Those parochial instructors are hired on an open-ended basis and cannot be summarily dismissed without proper justification. Perich began as a contract teacher, but fulfilled the requirements to be a called teacher, becoming a “commissioned minister” in the Lutheran Church.

The Redford, Michigan, school is affiliated with the Lutheran-Missouri Synod, but does not require its teachers to be called, or even Lutheran.

Federal courts have upheld a exception in the ADA blocking government intrusion in the employment decisions between religious institutions and ministerial workers.

A federal appeals court in Cincinnati eventually ruled for Perich, saying her primary duties as a teacher were not religious in nature.

What do you think about the case and its implications for the LCMS?






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  1. Eric Schlade
    April 9th, 2011 at 18:41 | #1

    @Rev. Kory Boster #126 Rev Boster, to the contrary, I’m suggesting these questions cannot be easily brushed off. Just as you asked, at what point do you suggest these differences will be resolved? I suggest for the most part, they will not be.

    I would say a “pastor” is a “position” in a vocation that a man accepts from the congregation – associate, assistant, or otherwise. I don’t believe God has divinely assigned these “positions” we tend to have so much concern over. Above that, however, I certainly believe in God’s authority and responsibility that is assigned to that role in the Divine Call.

    We tread on this issue with our own discrimination, let alone any help from federal law.

  2. Carl Vehse
    April 9th, 2011 at 19:30 | #2

    #148: “I have heard it suggested that “call” and “ordination” in the Confessions are really the same thing, simply looking at it from different angles.”

    I have heard it suggested that the moon is made of green cheese. Nevertheless neither suggestion constitutes proof.

    Martin Chemnitz wrote in Ministry, Word, and Sacraments: An Enchiridion (pp. 33-37; originally published in 1593 in German and in 1603 in Latin as Enchiridion D. Martini Chemnitii):

    “If a legitimate call consists in the things that have been said so far, what, then, does the public rite of ordination confer? This rite is to be observed for very weighty reasons. The first reason is that, because of those who run and have not been sent, a call ought to have the public testimony of the church. But that ceremony or rite of ordination is nothing else than the kind of public testimony by which the call of that person who is ordained is declared before God and in His name to be regular, pious, legitimate, and divine

    The rite of laying on of hands was common in the Old Testament when something was to be put solemnly in the sight of God, as it were, and committed to Him in a special way. Gn 48:14,20; Lv 1:2,4; Mk 10:16. And since public functions were at times entrusted to certain persons by laying on of hands (Numbers 27:18-20; Deuteronomy 3:28; 34:9), therefore the apostles, in the ordination of ministers, out of Christian liberty retained and used that common rite as a thing indifferent [and] helpful in teaching many things. Acts 6:5-6; 13:3; 1 Timothy 4:14; 5:22; 2 Timothy 1:6. And thus also the ancient church observed the act of ordination without anointing and without other superstitions, simply with laying on of hands (Dist. 23 of the Council of Carthage). Therefore we also in our churches observe the same rite. For through laying on of hands the person called is set before God, as it were, so that there might be a public and outward testimony that the call is not only a human matter, but that God Himself calls, sends, and appoints that person for the ministry, though by regular and legitimate means. [Emphasis added]

  3. mbw
    April 10th, 2011 at 14:19 | #3

    @Johannes #32

    > Therein lies a tale. Church and Ministry is what is dogging the LCMS these days.

    Church and Ministry has been in the doghouse for a long time. More lately, it has gotten down to Law and Gospel. But you are very right.

  4. Rev. Roger D. Sterle
    April 12th, 2011 at 06:52 | #4

    So what has happened with the teacher and the school?

  5. Carl Vehse
    April 12th, 2011 at 08:27 | #5

    Cheryl Perich was hired in 1999 as a contract kindergarten teacher and, after completing colloquy, was called as a commissioned teacher in 2000 and could claim a housing allowance on her income taxes. In 2003-4 shool year she taught 4th grade.

    After becoming ill in June 2004, Perich, at the suggestion of church administrators, applied for disability leave of absence for the 2004-5 school year. In December, Perich informed the school board that her illness had been diagnosed as narcolepsy, and medication was prescribed so that Perich could return to work in a couple of months. The details of what followed can be read starting on p. 4 of the Sixth Circuit Court of Appeals decision. Some rather strange goings-on are described.

    The school, jointly supported by Hosanna-Tabor and St. Paul’s has a website.

  6. Carl Vehse
    April 12th, 2011 at 09:38 | #6

    From p.10: “Religious organizations are not exempt from title I of the ADA or [these regulations]. A religious (entity) may give a preference in employment to individuals of the particular religion, and may require that applicants and employees conform to the religious tenants [sic] of the organization. However, a religious organization may not discriminate against an individual who satisfies the permitted religious criteria because that individual is disabled.”

    What happens when a religious organization does discriminate against an individual who satisfies the permitted religious criteria because that individual is disabled, and then maintains that objecting to such illegal discrimination is a violation of the organization’s religious tenets, thus allowing the organization to depose the person for violating that church’s religious tenet and not because of any discrimination against the person’s disability?

  7. Joe Olson
    April 12th, 2011 at 09:45 | #7

    @T. R. Halvorson #48
    “So, my advice is not to dwell too much on LC-MS internal nomenclature, and deal instead with whether that nomenclature matters very much in secular courts.”

    That is correct, that is really what the case will be about. And, for what its worth, I think the district court got it right. They cannot judge the LCMS’s decision about what a minister is or is not. To do so would subject the LCMS’s theological/doctrinal positions to review by a secular court. The 1st Amendment does not allow this.

  8. Carl Vehse
    April 12th, 2011 at 10:38 | #8

    In its decision (p. 17-8), the Sixth U.S Court of Appeals did recognize the problem of the court trying to judge church doctrine:

    In the instant case, Hosanna-Tabor has attempted to reframe the underlying dispute from the question of whether Hosanna-Tabor fired Perich in violation of the ADA to the question of whether Perich violated church doctrine by not engaging in internal dispute resolution. However, contrary to Hosanna-Tabor’s assertions, Perich’s claim would not require the court to analyze any church doctrine; rather a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich. As Plaintiff notes, the LCMS personnel manual, which includes EEOC policy, and the Governing Manual for Lutheran Schools clearly contemplate that teachers are protected by employment discrimination and contract laws. In addition, none of the letters that Hosanna-Tabor sent to Perich throughout her termination process reference church doctrine or the LCMS dispute resolution procedures.”

  9. Carl Vehse
    April 12th, 2011 at 14:21 | #9

    Just Some Guy (#18) noted: “The reason for refusing her return does not seem to pertain to the [ministerial] exception granted to churches, which exists to permit them to conduct free exercise of their religion. If it is true that the only reason she wasn’t permitted to return as that they couldn’t/wouldn’t accommodate a legitimate disability then they ought to be found in the wrong.”

    In its decision (p. 9) the Sixth U.S. Court of Appeals noted:

    Title I of the ADA includes an exception–known as the “ministerial exception”–which allows religious entities to give “preference in employment to individuals of a particular religion” and to “require that all applicants and employees conform to the religious tenants [sic] of such organization.” 42 U.S.C. § 12113(d).

    The ADA’s “ministerial exception” does not allow a religious organization to discriminate on the basis of disabilities, but on the basis of an individual conforming to the organization’s religious tenets. A religious organization that discriminates against a specific disability of a qualified individual is discriminating unlawfully (See 42 U.S.C. § 12112(a)).”

    But more than that – the court decision also noted (p. 9):

    The retaliation provision of the ADA prohibits employers from “discriminat[ing] against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge . . . under [the ADA].” 42 U.S.C. § 12203(a).

    So, not only is discriminating against an individual’s disability unlawful, but also unlawful is discriminating (by retaliation) against an individual’s opposing an unlawful discrimination. In deposing the called commissioned teacher on the basis of “insubordination and disruptive behavior,” which consisted of opposing an unlawful act by her employer, the church’s action seems tantamount to admitting they did indeed unlawfully discriminate against the teacher in both ways prior to their claiming a “ministerial exception.”

    This is another messy court case, likely to go on through 2011 or longer, which is not going to enhance the Koinonia Project.

  10. Joe
    April 12th, 2011 at 18:11 | #10

    Italics begone?

    Speaking of messy court cases, is there any update from Oakland?

  11. Carl Vehse
    April 12th, 2011 at 18:25 | #11

    The LCMS has abandoned the Oakland lawsuit!!! You can read about it here.

  12. helen
    April 13th, 2011 at 07:09 | #12

    I hope the “Easter makeover” will remove this suit from the lcms web site! [An honest
    summary of it is evidently too much to ask, even post-July 2010.] With Sherri Strand dictating a “decision” of the CCM, denials of involvement are pretty silly. Funny how synod is so broke it has to “borrow” from disaster victims, but districts have money to burn on futile law suits?

    No… not funny at all!

  13. Jason
    April 13th, 2011 at 08:24 | #13

    So when are we going to hire new legal counsel? I think with Sherri Strand we are stuck in a certain rut, a certain view of things. I do not think that is all helpful, and I am not comfortable with what her counsel may be. Another page to turn…

  14. Carl Vehse
    April 13th, 2011 at 10:00 | #14

    Regarding a change in the BOD’s legal counsel, Jason, you can kiss that idea goodbye for now.

    Check out Section 40, Legal Counsel Review Committee Report and Appointment (p. 47) in the February 17-18, 2011 LCMS BOD minutes, which includes this summary of a January survey:

    From the comments received from LCMS leaders, all indicated they were “satisfied” to “very satisfied” with the services provided by Thompson Coburn. No one cited any significant concerns, and no one recommended changing legal counsel.

    A resolution was then approved by the BOD to “reappoint Thompson Coburn, LLP as general counsel for the Synod through June 30, 2014.”

    Look on the bright side – in future lawsuits, we’ll have more LCMS executive depositions to chuckle over.

  15. helen
    April 14th, 2011 at 09:34 | #15

    @Carl Vehse #164
    Look on the bright side – in future lawsuits, we’ll have more LCMS executive depositions to chuckle over.

    Since they are supposed to be “family” I’m more embarrassed than amused. :(
    You don’t think they have learned a thing, then?

    Also that’s our “mission” money being wasted on lawyers.
    Interesting definition of “mission”! ;(

  16. Carl Vehse
    April 16th, 2011 at 13:51 | #16

    Helen (#165): You don’t think they have learned a thing, then?

    With the statement

    “No one cited any significant concerns, and no one recommended changing legal counsel.”

    officially entered into the BOD minutes?!?

    Zip, zero, zilch!

    (#165): “I’m more embarrassed than amused.”

    Well, Helen, it helps to have a “Three Stooges” and/or Alfred E. Neuman-type sense of humor to see the BOD action as utterly laughable. ;-)

    But, indeed, the Synod and its leaders should be embarrassed!

  17. Carl Vehse
    April 27th, 2011 at 11:19 | #17

    BTW, check out the name of additional counsel for the petitioners listed on the inside cover of the Petition for Writ of Certiorari for “Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, et al.,” which is before the SCOTUS.

    It’s Sherri Strand, the lawyer for the Missouri Synod’s Board of Directors, who will likely post on their LCMS webpage a notice implying that the Missouri Synod has absolutely no involvement in this case.

  18. Carl Vehse
    May 13th, 2011 at 09:10 | #18

    Here’s the March 29, 2011, LCMS press release, Statement – Hosanna-Tabor Ev. Lutheran Church and School v. Equal Employment Opportunity Commission (on pages 43-44 of the pdf document). For further information the press release refers to inquiries to Ms. Montserrat Alvarado of The Becket Fund for Religious Liberty at (786) 246-5385 or email her at malvarado@becketfund.org.

    A May 5, 2011, LCMS Press Release also notes:

    Lead counsel in the case is Professor Douglas Laycock of the University of Virginia School of Law, a leading scholar and Supreme Court practitioner in the area of religious liberty.

    For more information about the case, visit the University of Virginia School of Law website or The Becket Fund website.

  19. Carl Vehse
    July 6th, 2011 at 15:46 | #19

    Now that the Casey Anthony murder trial is over, the media hype about some other trial-of-the-century has shifted back to the Hosanna-Tabor v. EEOC case now before the SCOTUS, or at least it seems so according to the Christianity Today July, 2011, article, “Ministerial Murkiness: Biggest Religion Case in 20 Years?“:

    Rick Garnett, associate dean of the University of Notre Dame Law School, considers this the most significant religious freedom case in 20 years. He says a ruling against the school would narrow the existing exception too far, allowing courts to interfere with religious employment decisions.

    However, the legal counsel for the Assemblies of God sees Hosanna-Tabor v. EEOC as having less significance. Richard Hammar said the challenge will be to clarify how the law applies to non-pastoral employees who perform religious functions.

    “It could be of major significance if the court limits the ministerial exception [to] ordained pastors performing pastoral duties, but I do not foresee this happening,” he said.

    The article is a lot of tapdancing around an issue that boils down to this: A religious organization discriminates against an employee by pressuring her to resign because of the employee’s physical disability, even though she has satisfied the permitted religious criteria to be a commissioned teacher/minister.

    However, that religious organizations maintains that if the employee objects to such illegal discrimination either verbally or by filing a complaint with the applicable government agency, the employee has violated the organization’s religious tenets, thus allowing the religious organization to claim they deposed the individual for violating that church’s religious tenet and not because of any discrimination against that individual’s physically disability.

    Such a case would be similar to a pastor refusing to give the church council copies of his house key and then having the congregation depose the pastor because he violated a required religious tenet when he called 911 and reported that members of the church council were breaking into his house and stealing his property, rather than handling the break-in and robbery through the synod’s dispute resolution process.

  20. DCEPhil
    January 20th, 2012 at 14:36 | #20

    @Timothy C. Schenks #34
    I can speak by first-hand experience that people are “starved” into resignation – an action taken by church leaders, both lay leaders and clergy alike) to hide the sins of the church. I was a Director of Christian Education at a church where accusations were made against me by the elders. They refused to follow Scriptural guidelines, church constitutional guidelines, as well as the assurances spelled out in the Divine Call documents signed by the congregational representatives. When I tried to have this matter being falsely accused resolved through proper channels, I was told to resign or they would immediately terminate me and ‘defame my reputation to the congregation’ and recommend to the congregation that I receive NO severance package and No extension of health benefits. These threats were made to me IN WRITING while my wife was still recovering from a heart attack with complications and just weeks earlier had a defibulator and pacemaker installed in her chest. IN ADDITION, and with the church’s knowledge, my wife and I were in the middle of adopting two children – an adoption that almost didn’t happen because of these church leaders’ actions. After TWO YEARS of going through the synodical reconciliation process, the head elder AND the pastor admitted that the accusations that resulted in my forced resignation were NEVER even looked into and at least one of the accusations were based only on hearsay… and the head elder knew it at the time.
    It is an absolute shame and much to the detriment of the advancement of the Gospel when, as in the case of this Supreme Court case, the church would rather fight among the secular authorities than ‘settle matters quickly on your way to court’ as the Scriptures advise us. It is sad that the church would seek the acceptance of men and compliance with their law rather than seek out the acceptance of God and compliance with His law to ‘love one another as I have loved you’.
    I believe the title of ‘commissioned minister’ was established for probably all the reasons provided in the above posts. I think the LCMS recognizes that to get a theology degree from the Concordia University System is no cheap undertaking. The DCE, Deaconess, DCO, etc., also makes considerably less income than that of an ordained minister (and rightly so, I might add). Therefore, because the DCE, etc., also instructs the congregation in the Christian faith and Lutheran Doctrine, he/she should be given a title that acknowledges that holy work, yet, at the same time, differentiates this role with that of an ordained minister.
    A few years back Thrivent financed research that found that of all the teachers over the course of 5 years who had left synodical jobs for teaching in the public school system, 25% had left due to conflict. In the last letter to the clergy by our previous synodical president he had some harsh words for the clergy concerning the conflict that exists in our synod.
    Along with the three or four reasons in a congregation’s constitution for rescinding a call, often you will find the words of Peter and the Apostles, “We must obey God rather than man.” Acts 5:29. I fear that the only thing this Supreme Court ruling is going to do is encourage poor church leaders (ordained, commissioned, and lay leaders alike) to overturn Acts 5:29 and many other Scriptural principles and practices.
    With the synod’s Ablaze effort doing on in the midst of such conflict, the words of Christ ring true today, “Pharisees, you hypocrites! You travel over land and sea to win a single convert, and when he becomes one, you make him twice as much a son of hell as you are.”
    LCMS and their congregations need to do two things… 1. Look to and follow Christ rather than court rulings, and 2. Stop eating their own. (Of course the first would eliminate the second.) I believe it was Lenski that stated, “There is perhaps no greater sin than the sin perpetrated under the guise of Christian conduct.”

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