Breyer nails the Missouri Synod position on the ministry: She’s sort of like a minister

Over at Gottesdienst we are on the cutting edge of sitting around on Wednesday afternoons while our wives are at Parents’ Day waiting for SCOTUS transcripts to come out. First link has a few important quotations that I pulled out of the first half, including that absolutely perfect gem from Breyer. Second link is the whole thing.

 

+HRC


Comments

Breyer nails the Missouri Synod position on the ministry: She’s sort of like a minister — 96 Comments

  1. The LCMS is not being duplicitous but conforming to the law as determined by the government.

    It is not sinful to avail oneself of favorable provisions under civil law (Acts 22:25ff, 25:11).

  2. @Rev. Kevin Vogts #51
    Well, that all depends. If somebody says to you, “Tell us who your ministers are” and it is clear to you that they mean “Who are your clergymen” and you say, “All these here school teachers are our ministers” – that would be duplicitous.

    So it all depends on what you think the intent of the Congressional language is when they use “minister.” On my reading of that text, they were talking about clergymen and the MO Synod in the 50’s squeezed through the school teachers in a way that was less than forthright. Read the law yourself and ask yourself if saying, “MO Synod teachers are minsiters” is the truth, the WHOLE truth, and nothing but the truth.

    Others are free to disagree and it is water under the bridge because it has been settled law for so long. But I contend that these problems stem in part from this “fudging.” That’s why I stress the point: we should learn from this and be overly, clearly, 100% explanatorily straight forward about such important terms and definitions in the future.

    +HRC

  3. Here we go – I found the article I was looking for in Logia:

    “A further confusion of the distinction between ministry and
    priesthood within the Missouri Synod was a result of definitions
    used to satisfy the Internal Revenue Service for tax purposes. In
    March 1950 the IRS ruled that a Lutheran teacher named Eldor
    Eggen was required to declare his housing allowance on his income
    tax. He was considered an employee and not under the classification of clergy and therefore could not claim a deduction for his
    housing allowance. In order to bring tax relief to the teachers in the
    synod, the LCMS set forth a sociological view as its “official position.”
    This view was a departure from its traditional understanding and the Lutheran Confessions. Shortly after this ruling the
    LCMS published a “Supplemental Brief” as an appeal….”

    Read the whole thing: “The Ministry and the Schoolmaster” by Daniel S. Johnson, Logia VI.3, beginning on page 13 here: http://www.cls.org.tw/lib/logia/Journals/06-3%20%20Office%20&%20Offices.pdf

    +HRC

  4. The “intent of the Congressional language . . . when they use ‘minister'” is determined by the IRS. The IRS consistently refers in this regard to “a duly ordained, commissioned, or licensed minister,” and the IRS has ruled that our non-ordained commissioned workers meet this standard.

    An even stranger example is that the law specifies this exemption is only allowed for a “minister of the Gospel.” What exactly was the intent of THAT Congressional language? Well, as far as the IRS is concerned, a Jewish rabbi or a Muslim iman is a “minister of the Gospel”!

    It seems to me that you are failing to distinguish between the two kingdoms. Under civil law the term “minister” is not limited to ordained clergymen. The LCMS is not at all being duplicitous, but conforming to civil law in a civil matter as determined by the civil authorities.

  5. Pastor H.R. Curtis :
    …hence all the references again and again to Roman priests.

    I’d argue that a greater reason we heard so many references to Roman Catholicism is the fact that Chief Justice Roberts, and Justices Scalia, Thomas, and Alito are all Roman Catholic; so they’re using their own frame of reference to think through the issue, if nothing else. Oh, and according to Wikipedia, Justices Kennedy and Sotomayor are Roman Catholic as well. Therefore a full two thirds of the Supreme Court Justices are Roman Catholic, with the remaining third being Jewish of one form or another.

    Oh, for the days where we had a good solid Lutheran as the Supreme Court’s Chief Justice (I think I heard in a Lost & Found song or a Garrison Keillor sketch that William Rehnquist was ELCA)!

  6. >>you are right about how the law reads today. The history of how it got that way and the LCMS role in it is . . . distressing.

    I disagree that the LCMS was duplicitous with regard to the development of the IRS regulations and case law. Congress passed a law granting this exemption to “ministers of the Gospel.” That phrase obviously raises a whole lot of questions. Do you have to be Christian? Ordained? A “preacher” strictly speaking? Pastor of a congregation? What about nuns? Monks? Cantors? (specifically ruled in one case to be included) And, yes, what about our LCMS parochial school teachers, later extended to our other non-ordained full-time workers?

    Otto von Bismarck said laws are like sausages; it’s better not to see both being made. In this case the IRS makes regulations, based on the law passed by Congress; taxpayers interpret and act upon those regulations; they are sometimes challenged, and the tax courts rule. THAT is “how the law reads today . . . got that way.”

    Certainly the LCMS–along with many other denominations–participated in the process which led over a period of time to codifying the meaning of “minister of the Gospel” in the original law, but it was hardly duplicitous. That, by the way, is how the 401k came into being. It was never intended by Congress or the IRS, but one company thought they found justification for it (in section 401k of the tax code), the IRS ruled in their favor, and–Voilà!–the 401k was born.

  7. You are all off on the red herring of “who is a minister?” [Clyde Nehrenz would say “everyone” and quote his own papers to prove it.] That is not the point.

    Despite what one of our esteemed clergy (above) thinks about it, we have laws about treating people with disabilities as people. This case shows why. The woman has an illness which is now under control but the church fired her, rather than have her on their premises. (No reason; she wasn’t contagious and it isn’t mental. My neighbor had it and went to work every day.)

    [To say she should have done DRP is ridiculous;
    you clergy can’t get a fair hearing from DRP!]

    The ADA law is there for people like her and situations like this. The stinking shame of it is that a Lutheran school can’t do things in a Christian manner and has to drag the LCMS name into the courts yet again… where we do not distinguish ourselves as Christian, let alone Lutheran!

  8. Not knowing all the facts of this particular case, it does seem from what I’ve read that she was treated in an unbecoming manner. However, the upshot of this case could be far reaching. In particular: If the ADA applies, so does the EEOC.

    Churches could be forbidden to “discriminate” on the basis of sex (i.e. women’s ordination), “sexual orientation”, even creed. They tried this several years ago with KFUO, accusing them of discrimination for hiring mostly Lutheran students from Concordia Seminary, a case which also went to the Supreme Court.

    An acquaintance who is ELCA enrolled in an ELCA seminary. I bumped into him during his first semester. He said, “I’ve got six professors, all of whom are women, and none of whom are Lutheran.” One was actually an atheist, and then there was an assortment of Methodists, Presbyterians, and other denominations. When he asked the academic dean whether the professors at a Lutheran seminary shouldn’t actually be Lutherasn, she was shocked and said, “You wouldn’t want us to discriminate on the basis of people’s personal religious beliefs! All we look at is their academic qualifications. Their personal religious beliefs are their business.”

    Unfortunately, having the government impose that as a requirement could be the consequence of this case for all denominations.

  9. @Carl Vehse #46
    “Legally”–under our *own* system. The courts have always allowed for such “in-house” systems of adjudication, as long as we actually follow them.

  10. @helen #58
    Frankly, this is precisely the problem. No one called you or me to judge whether H-T treated her fairly. I may actually agree with you, in my own uninformed opinion. But it seems that a whole bunch of folks on this blog are stepping outside *their* offices to judge regarding someone else’s. The DRP is an unholy mess, but it is our process. But now, we can’t even allow our own process to *attempt* its job, unless the SCOTUS sends it back to us.

    I repeat, “A pox on both your houses.”

  11. @Pastor H.R. Curtis #53
    Wrt the housing allowance and taxes and the supposed advantage there is for teachers in this–in my experience, it’s pretty close to a wash, considering “ministers” have to pay SE tax, which means, essentially, the whole Soc. Sec. tax, instead of half. And SE tax is calculated on income *including* housing, whether that be “fair-market value” of a parsonage/teacherage, or the “housing allowance”. Hous. Allow. matter *only* for *income* taxes, which certainly helps, but for a lot of teachers, it’s not all *that* significant, since they’re still in the lowest tax brackets.

    Just out of curiosity, when I was a teacher, I calculated what my own return would look like (and, as best I could, what my withholding would look like) if I were a regular employee. Like I said, it was pretty close to the same.

  12. @Rev. David Mueller #60 : “Legally”–under our *own* system.

    No, legally under our federal judicial system. Recall that in the initial October 23, 2008, Opinion and Order of the U. S. District Court, Eastern District of Michigan, all parties made motions for summary judgment on all claims. That means there was no dispute of the material facts of the case, and the parties requested judgment as a matter of law, that is, the use of legal statutes, rules, court decisions, and interpretations of legal principles.

    As discussed in the Sixth U.S. Court of Appeals excerpt in Comment #14 above, the appeals court ruled that “the ministerial exception” [i.e., 42 U.S.C. § 12113(d)] does not bar Perich’s claims against Hosanna-Tabor.” Now the case is before the the justices of the U.S. Supreme Court to decide whether the claim of violating ADA regulations is legally correct or not.

    If the SCOTUS rules that the reason for deposing of Perich was covered under the ADA’s ministerial exception, then the deposing was legal and, presumably, of no further concern to the court. Whether the deposing of the teacher would have been justified “under our *own* system” (i.e., LCMS 2004 Bylaw 1.10.9) is, at this point, purely hypothetical.

  13. @Rev. David Mueller #61 : “No one called you or me to judge whether H-T treated her fairly.”

    But later Rev. Mueller writes:

    But it seems that a whole bunch of folks on this blog are stepping outside *their* offices to judge regarding someone else’s.”

    and

    “The DRP is an unholy mess”

    and

    “But now, we can’t even allow our own process to *attempt* its job, unless the SCOTUS sends it back to us.”

    Kettle, meet pot.

  14. So if a Lutheran school teacher, called or contracted, “comes out declaring their homosexuality” or co-habitates; or your church secretary is unrepentant in adultery or marries a mormon and converts…what remedy would the church have? None. Or a more qualified atheist sues you for not hiring them to teach at your school? Or churches and pariochial schools forced to make $100000’s in renovations for wheelchair accessibity to provided ADA compliance for employees and guests? Either ADA, EEOC applies completely or we’re exempt. The implications of this is why all those other churches joined our side.

  15. When I was at Concordia University Wisconsin a secretary in my office sent out the hiring notices. We first sent them to about 200 LCMS churches in the area for inclusion in their bulletins, which is where many employees of all levels came from. Currently CUW and other Christian institutions are specifically allowed to discriminate on the basis of religion, even for jobs not obviously religious such as secretaries, janitors, cooks, etc. This exception is actually based on a case won years ago by BYU, when they fired a janitor who left Mormonism. While it is sad that had to be the test case, it set the precedent.

    A consequence of this case could be that this exception would be eliminated. On the radio once (Issues, Etc.?) I heard a former insider in the gay movement explain that beginning decades ago they purposely and systematically targeted certain church bodies and other groups such as the Boy Scouts for a radical takeover. They lost, just barely, with the Boy Scouts, but succeeded wildly with many church bodies.

    This case could mean that immediately such groups would target the congregations and other institutions of the LCMS and other “conservative” church bodies, demanding with the force of law that we ordain women and gays, conduct “gay weddings,” etc. Already a church in New Jersey was sued and lost for not allowing a “gay wedding”: http://www.huffingtonpost.com/2008/12/30/nj-rules-against-church-g_n_154128.html

  16. @Rev. Weinkauf #66 : “Either ADA, EEOC applies completely or we’re exempt.”

    Why in the world would you conclude such a notion?! As pointed out here, 42 U.S.C. § 12113(d) allows religious institutions to require all applicants and employees to conform to its religious tenets. For the Missouri Synod, that means its schools are not required to hire or retain as employees unrepentent homosexuals, co-habitationists, adulterers, Mormons, or atheists.

    Whether the doctrinal tenets of the Missouri Synod allow its school employees to be red-headed, left-handed, or on medication for blood pressure or narcolepsy is left as an exercise for the reader.

  17. PTM:
    Roget’s Thesaurus:
    lickety-split

    adverb

    In a rapid way: apace, fast, posthaste, quick, quickly. Informal flat out, hell-for-leather, pronto. Idioms: full tilt, in a flash, in nothing flat, like a bat out of hell, like a blue streak, like a flash, like a house on fire, like a shot, like a streak, like greased lightning, like the wind, like wildfire. See fast/slow/velocity.

    Just saying –

  18. An alert reader sends this along…perhaps we should indeed take a closer look at just how upfront the LCMS is being about commissioned ministers and the tax code.

    http://www.irs.gov/pub/irs-pdf/f4361.pdf

    page 1, middle column at the bottom, to wit:

    Note. If you are a commissioned or licensed
    minister of a religious denomination or church
    that ordains its ministers, you may be treated in
    the same manner as an ordained minister if you
    perform substantially all the religious functions
    within the scope of the tenets and practices of
    your religious denomination or church.

    Our alert reader then asks: “Does LCMS doctrine now allow female teachers to “perform substantially all the religious functions within the scope of the tenets and practices of your religious denomination or church”?”

    +HRC

  19. @Roger Gallup #15 : There is another issue in the transcripts that I find scary. Our attorney is declaring the Dispute Resolution Process as the “doctrine” of the synod. Since when??? It is our ecclesactical rule but it is not “doctrine”.

    That is a good catch. The transcript reference to the church doctrine being embodied in the dispute resolution process, and whether Perich was informed of such doctrine, is discussed in the following exchanges:

    SCOTUS transcript, p. 19-20:

    JUSTICE BEYER: … there is no evidence here at all that religious tenets had anything to do with her being dismissed. No one mentioned them. She didn’t know about them. I didn’t until I read the very excellent brief filed by the Lutherans that explained the nature of taking civil suits. No one said that to her, whether it was in someone’s mind or not. She found out on motion for summary judgment. So therefore this wasn’t an effort by the religious organization to express its tenets. She was dismissed. She could have — they could have had a defense, but it doesn’t apply, and therefore, even though she’s sort of like a minister, she loses. What are your objections to that?
    MR. LAYCOCK: Well, my first objection is I don’t think those are remotely the facts here. You know, this teaching is clearly stated, embodied in an elaborate dispute resolution process. You don’t ask for —
    JUSTICE BREYER: Did anyone mention that to her?
    MR. LAYCOCK: Indeed.
    JUSTICE BREYER: Really? My law clerk couldn’t find it. Can you tell me where, where someone did say the reason we are dismissing you is because of our religious doctrine that you cannot bring civil suits?
    MR. LAYCOCK: Page 55 of the joint appendix, which is the letter that — where they tell her that they are going to recommend recission of her call, they say because — because of insubordination, and because you threatened to sue us.

    p. 21-22:

    JUSTICE BREYER:… I’m just wondering what the evidence is that they knew there was such a doctrine, that they were motivated by the religious doctrine, and that they expressed that to her. I just — I’ll look at page 55. Is there anything else I should look at?
    MR. LAYCOCK: …The principal in her deposition says: The minute she said she might sue, I said: You can’t do that; you’re a called teacher. The testimony is the board talked about it at their meeting on February 22nd… Perich was a lifelong Lutheran. She worked 11 years in Lutheran schools. She had these eight theology courses. Simply not credible that she didn’t know about this doctrine.

  20. Justice Breyer in a question to the DOJ lawyer for the EEOC, Ms Kruger, p. 41:

    JUSTICE BREYER: So what’s the answer to this dilemma? At the moment I’m making an argument for following what Congress said, go back and try it that way, and if they can show in this case and she shows in this case nobody ever thought of this religious tenet, nobody told me, they didn’t read it, then she’s going to win. And if they come in and show that they really did this because of their religious tenet, they will win. What about that?

    This suggests Breyer might prefer to punt the case back to the Federal Court in Michigan and let them handle it on this basis. But then it could be just a feign.

  21. “The principal in her deposition says: The minute she said she might sue, I said: You can’t do that; you’re a called teacher.”

    The DRP provides for those exceptions where the DRP is not the “exclusive” avenue for solving issues (Bylaw 1.10.3).

    While Christians are encouraged to seek to resolve all their disputes without resorting to secular courts, this chapter does not provide an exclusive remedy for the following matters, unless such matters involve theological, doctrinal, or ecclesiastical issues, including those arising under the divine call of a member of the Synod:
    (a) Disputes concerning property rights (e.g., real estate agreements, mortgages, fraud, or embezzlement); and
    (b) Disputes arising under contractual arrangements of all kinds (e.g., contracts for goods, services, or employment benefits).

    So, the blanket statement by the principle that she, as an employee of the school, could not sue the school (but had to use the DRP) because she’s a called teacher doesn’t seem to hold water. Otherwise, churches are embroiled in adjudicating all sorts of secular matters that are not just quarrels between members (cf. Luke 12:12-14).

    How would that benefit the gospel or honor God’s great gift of government in its proper place?

    My 2 cents.

  22. I guess, one issue would be, considering the language of 1.10.3, whether she as a teacher had a “divine call.”

    Yet this would be an issue only if the “including those …” clause above does not refer to “following matters” but, which seems more likely, to the “unless…” part. So, if the matters mentioned in paragraphs a and b involve a “divine call” then DRP is it: exclusive and final.

    So, do teachers not only have a “call” from a congregation but also one from God, according to current LCMS doctrine?

    As far as I could determine, “divine call” is nowhere defined in the Handbook. However, it does deal with both commissioned and ordained ministers jointly — including their “call” — under the government-supplied bracket of “ministers of the gospel” under Bylaws 2.6 – 2.12.

    This, apart from the merits of the particular case at hand, might bring us back to the issue raised by Pr. Curtis and made even more urgent in his post #71.

  23. Here’s a “golden oldie” on lawsuits by synodical members, excerpted from the June 22, 1991, Milwaukee Sentinel article, “District takes on top officials of Missouri Synod“:

    Church observers say the crux of the synod’s complain is that Robert Preus turned to the civil courts without first exhausting the proper church channels to contest his forced “honorable retirement” as seminary president in 1989.

    Synod officials reported that he filed two civil lawsuits agains the seminary and a complaint with the US Equal Employment Opportunity Commission. They also charged him with giving false testimony in civil depositions, according to an independent Lutheran newsletter.

    [A synod vice-president Rev. Walter A.] Maier told a Sentinel reporter that he believed the former president lied.

    Turning to a civil court was considered a public sin by church officials, who viewed it as bringing matters before the “unrighteous,” Rolf Preus said.

    “The Lutheran church has never taught it was a sin to take a Christian to court, nor would it agree a civil court is unrighteous. We believe there also are Christians in civil court and it’s an institution of God,” he said.

    A synod commission ruled last February on a split decision that the seminary board had the authority to honorably retire Rober Preus. It also ruled Preus did not forfeit his right to church adjudication by going to a civil court.

    He is appealing the retirement decision, set to be heard next month.

    On Aug. 14, 1989, the Allen County, Ind., circuit court had granted a temporary restraining order that kept Preus in office until arguments were concluded on an injunction that would allow him to remain president during the entire appeals process. In 1992, The Lutheran Church-Missouri Synod’s appeals panel voted 5-4 to reinstate Robert Preus as president of Concordia Theological Seminary but he first needed to be reinstated as a member of the LCMS clergy. Preus appealed his suspension from the clergy roster, and a 1992 hearing before the synod’s commission on appeals acquitted him of charges from Synod Pres. Ralph Bohlmann and the synod’s five vice presidents that he was guilty of “a pattern of untruthfulness.”

  24. >> “Does LCMS doctrine now allow female teachers to ‘perform substantially all the religious functions within the scope of the tenets and practices of your religious denomination or church’?”

    I interpret “within the scope” to mean those religious functions that are allowed according to the tenents and practices of the religious denomination. So, for example, “Permanent Deacons” perform the Sacrament of Baptism, but not the Eucharist–because the tenents and practices of the Roman Catholic Church allow for the one, but not the other.

    The question may arise, since “Permanent Deacons” are not allowed to peform a key sacerdotal function of a clergyman in the Roman Catholic Church, does that disqualify them from being classified as “ministers” as defined by the IRS? This statement is the answer to that question: No, it does not disqualify them. This statement is actually acknowledging and codifying that a “commissioned” or “licensed” minister is NOT required to perform all the functions of an “ordained” minister in order to be considered a “minister” as defined for tax purposes by the IRS.

    Likewise, a parochial school teacher, DCE, etc. in the LCMS is not disqualified from being considered a “minister” as defined for tax purposes by the IRS even though they do not perform such functions as administering the Sacraments, etc., because that is not “within the scope” of the “tenets and practices” of the LCMS. So, rather than undermining or calling into question the classification as “ministers” under IRS rules of our non-ordained workers, this statement actually supports it.

  25. @Rev. Kevin Vogts #77
    I’m afraid your whole analysis fails here since deacons are in fact ordained ministers. Roman Catholics have three kinds of ordained ministers: deacons, priests, and bishops.

    To say the least, this statutory language should make the MO Synod “nervous.” I repeat it for emphasis: ” you may be treated in
    the same manner as an ordained minister if you
    perform substantially all the religious functions
    within the scope of the tenets and practices of
    your religious denomination or church.”

    Ask your local LCMS layman if a school teacher, male or female, “performs substantially all the religious functions” of an ordained minister.

    Obviously, the IRS must be fine with what the LCMS is claiming with this commissioned ministers stuff. I’m sure the lawyers have looked it over….but something doesn’t seem quite right based on the clear language presented here.

    +HRC

  26. @Carl Vehse #64
    1. With regards to this blog–by posting, by allowing my posts, there is a submission of our own posts for judgment by all.

    2. I *am* called to judge the DRP–by virtue of my membership in teh synod, *as well as* my election to the office of circuit pastoral delegate 2 falls ago (a 3-year term).

    3. That’s not a judgment, but an observation, a statement of fact.

    And beyond all that–the *courts* *legally* count “in-house” due-process procedures, as long as a truly fair process is established. As a former teacher, I recall the necessity of providing an appeals process for any student who was expelled. The *courts* required this.

  27. To avoid sophistic games, a reference to an office of “judge” refers not simply to a person who states personal opinions, but rather to a person who issues opinions as decisions that include the authority of a given representative office and that are accompanied with the authority of that office to take or order action on those decisions for or against other individuals or organizations.

    In that sense, the owners and moderators on a blog site like BJS are “judges”, while the rest of us simply give our opinions on various issues and on the opinions of others.

    A convention delegate, when recognized, has the authority, to state his opinion publicly on the convention floor. He also has the authority to propose amendments, vote on motions, and elect officers, etc., during his term as delegate.

  28. >>I’m afraid your whole analysis fails here since deacons are in fact ordained ministers

    Actually I find it interesting that a “lower level” ordination is recognized as valid. Obviously performing certain sacerdotal/sacramental functions is not a requirement as far as the IRS is concerned. In any case, there are also Roman Catholic catechists, monks, nuns . . . none of whom are ordained, all of whom receive this same status from the IRS as our non-ordained workers.

    >>Ask your local LCMS layman if a school teacher, male or female, “performs substantially all the religious functions” of an ordained minister.

    The key is the clarifying clause which follows: “within the scope of the tenets and practices of
    your religious denomination or church.” A deaconess for instance may perform fuctions that are generally the purview of an ordained minister, such as visiting the sick, teaching confirmation classes, counseling. But she does not preach or administer the Sacraments because those functions are not “within the scope of the tenets and practices” of the LCMS for a deaconess. This clause is actually clarfying that commissioned or licensed ministers are NOT required to perform all the functions of an ordained minister, if some functions are not “within the scope of the tenets and practices of your religious denomination or church” for a non-ordained minister.

  29. @Rev. Kevin Vogts #81
    Could you please provide some hard evidence for nuns being considered “ministers for tax purposes” under section 107 (the parsonage allowance)? That would indeed be interesting and applicable here, but I can’t find any evidence for it. Perhaps you know some off the top of your head.

    Instead, I find that that are instead covered under a difference provision for “members of a religious order.” See here: http://www.irs.gov/businesses/small/article/0,,id=210018,00.html

    Are you just assuming that nuns are covered like “commissioned ministers” or can you provide some evidence?

    Thanks,
    +HRC

  30. According to the United States District Court, Eastern District of Michigan at Detroit Opinion and Order (p. 7):

    Hoeft and Perich spoke again that day [February 22] over the phone; Hoeft indicated that Perich would likely be fired and Perich indicated that she would assert her legal rights against discrimination and asked Hoeft to pass that information along to the boards.

    A similar description is given in the U.S. District Court of Appeals decision (p. 6).

    First, principal Hoeft told Perich she would “likely be fired.” However, since Perich was a called commissioned teacher, not a contract teacher, she could not be fired, but she would have to be deposed from her call. Such an erroneous or misleading statement by Hoeft has the appearance of trying to get some kind of actionable response from Perich.

    Second, Perich’s response about asserting her legal rights against discrimination did not specify a time frame and thus did not go against any church doctrine, because it did not address whether she would bypass the dispute resolution process before asserting her legal rights against discrimination. And against what act of discrimination would Perich assert her legal rights? From the court records, it is clear she was referring to being told she would likely be fired, rather than being deposed for legitimate reasons (e.g., false teaching, immoral life, inability to carrying out her duties as a teacher).

    Third, a few hours later the School Board issued a letter indicating they were reviewing the process for rescinding Perich’s call. There was no Mt. 18 meeting with Perich about what they claim as the reason for deposing her – “threatening to take legal action.” There was no indication in the District Court or Appeals Court records that the principal, the pastor, the president of the congregation or the School Board met with Perich about the doctrinal issue after her conversation with Hoeft on February 22, and before she was deposed.

    Fourth, on March 19, the School Board sent Perich a second letter stating their intent to depose her at the April 10th congregational meeting for making a threat to assert her legal rights on February 22. Yet the letter still offered Perich a peaceful release agreement (“peaceful” in the sense of both parties presumably agreeing not to file legal complaints against the other) in exchange for the congregation paying for a portion of her health insurance premiums for the remainder of the calendar year.

    No wonder four justices in the SCOTUS hearing repeatedly brought up the issue of pretext.

  31. @Carl Vehse #83
    I actually think that the school board made it clear that they were asking her to resign because of ” inability to carrying out her duties as a teacher” due to her narcolepsy. Of course, an employer can’t make this sort of business decision under the ADA.

    Then the congregation rescinded her call, not the school board. That also seems to be a significant point in the case that did not get enough discussion in the oral arguments, I think.

    But it really comes back to the school board deciding that she was unable to carry out her duties. Doesn’t the board have that right under our polity, for good or ill? Aren’t pastors tossed on this account all the time with no recourse to secular courts?

    If you want to be “minister” so you can take the parsonage allowance, you’ll have to forgo rights under the ADA as well: that’s the basic argument the parish seems to be making.

    +HRC

  32. @Pr. H. R. Curtis #84 : I actually think that the school board made it clear that they were asking her to resign because of ” inability to carrying out her duties as a teacher” due to her narcolepsy.

    According to the U.S. District Court document (p. 7):

    The cited reasons for this action included Perich’s “insubordination and disruptive behavior” on February 22. The board also felt that Perich had “damaged beyond repair” her working relationship with Hosanna-Tabor by “threatening to take legal action.”

    There was no evidence that the teacher could not perform her duties after being treated for narcolepsy and being released by her doctor, who later “reaffirmed that she was healthy and ready to work.” This is why the issue of “pretext” was raised by the Supreme Court justices as well as being alluded to in the Appeals Court decision.

    Doesn’t the board have that right under our polity, for good or ill? Aren’t pastors tossed on this account all the time with no recourse to secular courts?

    The first question, involving the “ministerial exception,” is to be answered by the SCOTUS (the “good” referring to the church’s doctrinal tenets; the “ill” may end up referring to the use of “pretext”). As for the second rhetorical question, I don’t know if there have been pastors “tossed” because of an ADA-recognized disability unrelated to doctrinally-justified reasons for rescinding their call. Do you have any examples? Obviously if a pastor with an ADA-recognized disability signs a peaceful release agreement in order to receive health insurance benefits for himself and his family for some period of months, he will have no recourse to secular courts. I do know of one other member of Synod who filed an EEOC complaint after being removed from his office, and was then removed as a member of the synod.

    If you want to be “minister” so you can take the parsonage allowance, you’ll have to forgo rights under the ADA as well: that’s the basic argument the parish seems to be making.

    Is that in your ordination vows? What Hosanna-Tabor’s lawyer has claimed before SCOTUS is that a commissioned or ordained minister has NO ADA legal rights at all under the “ministerial exception,” even to being subjected to pretext. One wonders if the CTCR will soon need to prepare a publication on the Lutheran doctrine of pretext.

  33. Here’s a “blast from the past” discussing a case of a synodical member filing a complaint with the EEOC and going to court, excerpted from the June 22, 1991, Milwaukee Sentinel article, “District takes on top officials of Missouri Synod“:

    Delegates at the South Wisconsin District convention took on the church’s top officials by adopting a strongly worded resolution condemning them for causing turmoil in the synod over their disput with the Rev. Robert Preus, a highly respected orthodox Lutheran theologian and former pesident of one of the church’s two seminaries….

    During an emotional floor debate, Preus’ son, the Rev. Rolf Preus [pictured in the article], of St. John’s Lutheran Church in Racine, made an impassioned speech defending his father’s honor and reputation for integrity. All four of Preus’ sons are pastors in the synod….

    In an interview, he [Rolf Preus] added, “They’re trying to destroy a man’s credibility so he will be seen as a probllem. He is representative of a larger church body seeking to remain faithful to Scriptures and (Lutheran) confession.

    “I see my dad’s removal as an attempt to diminish the influence of a conservative group.”…

    Church observers say the crux of the synod’s complain is that Robert Preus turned to the civil courts without first exhausting the proper church channels to contest his forced “honorable retirement” as seminary president in 1989.

    Synod officials reported that he filed two civil lawsuits agains the seminary and a complaint with the US Equal Employment Opportunity Commission. They also charged him with giving false testimony in civil depositions, according to an independent Lutheran newsletter.

    [A synod vice-president Rev. Walter A.] Maier told a Sentinel reporter that he believed the former president lied.

    Turning to a civil court was considered a public sin by church officials, who viewed it as bringing matters before the “unrighteous,” Rolf Preus said.

    “The Lutheran church has never taught it was a sin to take a Christian to court, nor would it agree a civil court is unrighteous. We believe there also are Christians in civil court and it’s an institution of God,” he said.

    A synod commission ruled last February on a split decision that the seminary board had the authority to honorably retire Rober Preus. It also ruled Preus did not forfeit his right to church adjudication by going to a civil court.

    He is appealing the retirement decision, set to be heard next month.

    On Aug. 14, 1989, the Allen County, Ind., circuit court had granted a temporary restraining order that kept Preus in office until arguments were concluded on an injunction that would allow him to remain president during the entire appeals process. In 1992, The Lutheran Church-Missouri Synod’s appeals panel voted 5-4 to reinstate Robert Preus as president of Concordia Theological Seminary but he first needed to be reinstated as a member of the LCMS clergy. Preus appealed his suspension from the clergy roster, and a 1992 hearing before the synod’s commission on appeals acquitted him of charges from Synod Pres. Ralph Bohlmann and the synod’s five vice presidents that he was guilty of “a pattern of untruthfulness.”

  34. @Pr. H. R. Curtis #78

    “Ask your local LCMS layman if a school teacher, male or female, “performs substantially all the religious functions” of an ordained minister.”

    Ooh, very interesting point. Okay, an outsider looking at the school teacher v. pastor as minister to grade school kids. Okay, the kids are already baptised, so neither would be doing that anyway not during class time or school activities. The kids aren’t old enough for communion, so neither would be doing that. What does that leave? There is confession, absolution and leading chapel and giving the chapel sermon/message and teaching the religion class. Are most kids given the opportunity to make confession other than Sunday service if they have pastor rather than a called teacher for religion class? (When I was at Catholic school in like 4th grade, I remember they set aside time for us kids to go to confession during the school day and encouraged us to go.)

    So, perhaps to an outsider, the pastor is not actually doing something more than the called school teacher does with regards to the children.

    I am just looking for a way that they could frame it such that the letter of the law could be met.

  35. Dear BJS Bloggers,

    The printed text of the oral argument of Hosanna-Tabor (petitioner) vs. EEOC, dated October 5, 2011 is now online here:

    http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-553.pdf

    I will be interested to see what the Supreme Court finally says on this.

    Dr. Montgomery’s analysis at Issues, etc. is worth listening to carefully (thanks to Stan above for the link): http://issuesetc.org/2011/10/06/a-legal-perspective-on-the-supreme-court-case-concerning-the-ministerial-exception-dr-john-warwick-montgomery-10062011

    The following is my own opinion, again, not being an attorney, but only someone who has had to read and study church “canon” law as part of my job.

    It looks like Hosanna-Tabor has a strong case for “ministerial exception to EEOC regulations” on the basis of the original complainant being a Commissioned Minister. The teacher who made claims against Hosanna-Tabor was listed as Commissioned Minister in the 2010 Lutheran Annual and did teach religion. From this perspective, the EEOC rulings would not seem to apply due to the First Amendment, if I understand the argument correctly.

    On the other hand, I was REALLY pleased to see that Judge Alito knows his theology! He said for the Court, page 22, lines 21-23, “What did Martin Luther actually say about suing the church where [sic?] other Christians in a civil tribunal? Is this really a central tenet of Lutheranism?”

    Is it really a central tenet–INDEED? Look where it came from. It is part of the controverted LCMS Dispute Resolution Process (DRP) adopted in 1992, based on a questionable document titled “I Corinthians 6:1-11: An Exegetical Study”, published by the CTCR in April 1991.

    The only reason that this 1991 document was produced was to DEFEND RETALIATORY ACTION of synodical officers against Robert Preus, who like the teacher in this case, went to civil court for protection. Before the Preus case, LCMS clergy and church-workers could resort to the civil courts if necessary or advisable. So the NO LAWSUITS rule only has a 20 year history for our 500 year church-body and it is not in our Lutheran Confessions.

    Alito is correct to observe that the prohibition of lawsuits by Christians against other Christians is NOT a central tenet of the Lutheran church – it is in fact a very questionable tenet of the LCMS ONLY, and it only applies to pastors and commissioned ministers. Augsburg Confession XVI and Apology XVI both affirm the role of courts, laws, criminal justic, and lawsuits and condemns the Anabaptists who forbid involvment in these civil activities.

    How this is implimented in the LCMS bylaws is that every layman in the LCMS is practically free to sue as they please; only pastors, teachers, deaconesses, and other rostered church-workers are denied the protections provided by federal and state laws to employees, and cannot pursue a defense in the civil courts.

    I am not saying that it is a GOOD thing for a Minister of Religion to sue his/her congregation, school, or agency-of-hire, nor do I encourage anyone to take that action. If evil is done against them, then they should follow the command of Christ to NOT RESIST EVIL. God will punish the evil-doers who do not repent–I have no doubt of that!

    I am wondering, though, whether our DRP and the 1991 CTCR document encourages people in power in a congregation, school, or agency to abuse their church-workers. Are these bylaws in effect because congregations, schools, and church agencies want their workers to be SLAVES, not CO-WORKERS and BROTHERS in the Kingdom? If so, then DRP and the 1991 CTCR document are unjust and need revision.

    I also observed Attorney Kruger’s comments, page 33, lines 17-20, “The government’s interest in PREVENTING RETALIATION against those who would go to civil authorities with civil wrongs is foundational to the rule of law.”

    It seems to me that this statement is the EEOC’s strongest point; but that is up to the Court to determine–and I will respect that judgment.

    So — does this mean that, according to our DRP bylaws, LCMS congregations and agencies: 1) ABSOLUTELY MUST FIRE every rostered minister who uses the civil courts against the church or another Christian? 2) MAY FIRE, based on unstated and uncertain criteria, a rostered minister who uses the civil courts against the church or another Christian? 3) ABSOLUTELY CANNOT FIRE any rostered minister who uses the civil courts against the church or another Christian?

    Doesn’t this mean that EVERY SINGLE CHURCH-WORKER needs to be reminded of this at installation, and at least once a year, so they don’t commit the “unforgivable sin” of going to civil court with a complaint? This seems to be the practical implications of this case, at least what I understand so far.

    It seems to me like the framers of our DRP didn’t think this area through very carefully. It seems to me like the Justices on the Supreme Court are a whole lot smarter on these points than the people who concocted our DRP. It seems to me that the LCMS will have to review its DRP and 1991 CTCR document based on what the Court finally says.

    That is my thinking on the case so far. I wonder what the attorneys who read BJS think about these particular points I have noted in the case.

    Yours in Christ, Martin R. Noland

  36. @Martin R. Noland #89

    > How this is implimented in the LCMS bylaws is that every layman in the LCMS is practically free to sue as they please

    but they have no standing, not being members.

    > only pastors, teachers, deaconesses, and other rostered church-workers are denied the protections provided by federal and state laws to employees, and cannot pursue a defense in the civil courts.

    I believe this is an illegal provision. The nonprofit corp law depends very fundamentally on the ability of members to go to court. It is part of the system. The current provisions are wicked in that they exploit the government’s reticence to go after any church body. The current practices are evil in that they abuse constitutional protections of churches from government intrusion in ACTUAL DOCTRINE.

  37. “Hosanna-Tabor discharged respondent because she threatened to file suit against the church in a civil court. This threat contravened the Lutheran doctrine that dis-putes among Christians should be resolved internally without resort to the civil court system and all the legal wrangling it entails.5

    5See The Lutheran Church—Missouri Synod, Commission on Theol¬ogy and Church Relations, 1 Corinthians 6:1–11: An Exegetical Study, p. 10 (Apr. 1991) (stating that instead of suing each other, Christians should seek “an amicable settlement of differences by means of a decision by fellow Christians”). See also 1 Corinthians 6:1–7 (“If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints?”).

    http://www.lcms.org/page.aspx?pid=445

    Hmmm… Has anyone told the “four individual congregants of Our Redeemer, including the congregational president,” who are suing four women in California?

  38. Syndicated Salem Radio Talk host says he will discuss the case on his radio program “after the break.” He called it a huge win for religious freedom.

    KRLA, 870 kHz, Glendale, and KTIE, 590 kHz, Riverside, carry the program live in SoCal. In some markets, the program may be delayed by a few hours. There might be a list of stations at hughhewitt.com , Both those stations stream on the web and have iOS apps. It also works on the TuneIn Radio app.

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