IRS definitions, ministerial confusion, and the Supreme Court

Here’s a news article from deseretnews.com

 

It seems that the LCMS is at the front and center of a legal struggle that will have a long lasting affect upon anything considered “church”.

When I first started learning about nomenclature in regards to churches I was confused by the minister of religion-ordained and minister of religion – commissioned categories.  I know the basic definitions now, and I understand that certain IRS benefits come from this, but it appears that the confusion has caused this case to come up and rise to the highest court in the land.

Has anyone been following this?  If so, what are the ramifications for our congregations?

Thanks to “Carl Vehse”, we previously discussed this on the April 2, 2011, BJS thread, “LCMS school in Supreme Court case.”

About Pastor Joshua Scheer

Pastor Joshua Scheer is the Senior Pastor of Our Savior Lutheran Church in Cheyenne, Wyoming. He is also the Editor-in-chief of Brothers of John the Steadfast. He oversees all of the work done by Steadfast Lutherans. He is a regular host of Concord Matters on KFUO. Pastor Scheer and his lovely wife Holly (who writes and manages the Katie Luther Sisters) have four children and enjoy living in Wyoming.

Comments

IRS definitions, ministerial confusion, and the Supreme Court — 34 Comments

  1. One interesting new wrinkle since the April 2 thread is that the Justice Department has filed a brief before the court, now that the case is headed to the Supremes. The Obama Adminstration is arguing that there should be NO “ministerial exception” at all. This, should the Court be persuaded by the Obama/Holder position, would mean a win for the plaintiff, but on different grounds. The plaintiffs are saying that the teacher was not really a minister, but not objecting to the ministerial exception (to civil rights laws). The Administration says it doesn’t matter if she had a call or not – they say that is irrelevant because there should be no ministerial exception either way. The defense, obviously, is arguing ministerial exception AND that it applies to the plaintiff (an LCMS teacher who was dismissed from her call).

    I doubt the Supreme Court will go with the Administration, but if Obama is re-elected and appoints another “progressive” justice or two the court will revisit this so that they can do away with the ministerial exception altogether – like they are doing in Illinois with adoption/foster care. Hopefully it won’t come to this. Because if there is not ministerial exception to federal non-discrimination laws, an LCMS day school won’t be able to dismiss a teacher who decides to “come out”, etc. I know this sounds silly, but this is where the liberals are headed. We this same reasoning at Vanderbilt University, where they are telling religious groups on campus that they can’t discriminate against people of different religions. The university thinks it doesn’t matter, for example, if one is Muslim or Mormon: they should be allowed to be in the Christian Legal Society or Catholic Student Union.

    I know we have Brothers who are Democrats and also that we try to avoid mixing it up about Kingdom of the Left politics here, but this is crossing a line and impinging on our religious liberties.

    These are not your grandfathers’ Democrats.

  2. I think this also could affect hiring done by churches and other religious organizations. They might not be able to only hire people with their same faith and beliefs. Does this cover that, too? Thanks, Phillip for the better explanation. I was hearing about Vanderbilt U last week, and I think the government needs to stay out of our churches and faith organizations.

  3. The article referenced in #3 states: “Absent fraud, if the religious organization says the employee is part of the religious mission, the inquiry ends.”

    This is a sweeping generalization that doesn’t even agree with the LCMS Bylaws (e.g., 1.10.3). Nor does such a statement agree with the decision (p. 17-8) of the Sixth U.S Court of Appeals:

    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.

    In addition, the Sixth U.S Court of Appeals noted (p. 17-18):

    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).

    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).

    According to Case No. 07-14124 of the United States District Court, Eastern District of Michigan at Detroit, the Hosanna-Tabor congregation deposed Perich as a called commissioned minister on April 10, 2005. Perich filed a complaint with the EEOC on May 17, 2005. The EEOC brough a suit on Sept. 28, 2007. Perich moved to intervene as a plaintiff on March 28, 2008. The motion was approved and on April 11, three years after she was deposed, Perich filed a complaint against Hosanna-Tabor on two counts of retaliation, under the ADA and the Michigan’s Persons with Disabilities Civil Rights Act.

  4. @Phillip #2
    I’m a little unsure about just what this “ministerial exception” is. If there is no such exception, would this mean that churches would be legally unable to make theological “soundness” a qualification to consider in calling a pastor? Could the lack of a “ministerial” exception make it illegal for the LCMS to refuse ordination to women, and homosexuals?

  5. @David Hartung #7 : “I’m a little unsure about just what this “ministerial exception” is.”

    Plese note in Post #6 the reference to Title I of the ADA in the Sixth U.S. Court of Appeals decision (pp. 17-18) noting the “ministerial exception.”

    42 U.S.C. Subchapter I, § 12113 (d) Religious entities:

    (1) In general
    This subchapter shall not prohibit a religious corporation, association, educational institution, or society from giving preference in employment to individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

    (2) Religious tenets requirement
    Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.

  6. One wonders, compared to the cost of just having reinstated the commissioned teacher with a disability back in 2005, how much Hosanna-Tabor has spent on legal costs in the initial trial at the Federal Court in Detroit, in the Appeals Court, and now the Supreme Court.

    And there’s always the chance (given some wackos on the bench) the SCOTUS will eliminate or narrow the ministerial exception in its ruling on the ADA violation. It’s also possible that the SCOTUS will keep the ADA ministerial exception but require more administrative hoop-jumping documentation requirements to keep the exception from being abused by unscrupulous religious organizations.

    Since the LCMS is an advisory body to its individual and congregational members, one also wonders whether some synodical body gave any advice to Perich and Hosanna-Tabor back in 2005.

    Hey, do you think all the religious organizations who filed amicus curia briefs with the SCOTUS will hold a prayer vigil outside the court building during the hearings? 🙂

  7. The Latin phrase in #10 should be “amici curiae (“friends of the court”), with the –i plural ending, and the –ae ending being the genitive declension. (Sorry, Mr. Allen, wherever you are.)

  8. If the decision by the Supreme Court to remove the Ministerial Exception becomes the law of the land it might be a blessing to the church as then we would be forced to stand and to take a stand on our Confessed doctrinal standard delineated in our official confessions and so bring about a revival of sorts to our practice of those official doctrinal standards.

    As well as point out even more sharply those congregations that are Lutheran from those that are not. No where to hide.

  9. Anyone know how this applies to WELS, called workers? Teachers, admin, etc? The future prospects of this, are quite frightening.

  10. What would Jesus do? Would Jesus have terminated a person’s employment and access to employee-sponsored health insurance in the middle of a health crisis? I don’t think so!

  11. On philosophical-political grounds I’m certainly routing for the congregation as I have no love for state interference in any hiring/firing. But on theological grounds it’s hard to route for the disingenuousness of the Missouri Synod in telling the US government that we have female “ministers.” Our duplicity is clearly contrary to the intent of the law – to say nothing of our theology.

    +HRC

  12. John,

    Are you suggesting that the Courts should exchange their establish jurisprudence in favor of the “WWJD” standard?

    I certainly question how the congregation proceeded – but I also see from the affadavits that the case was not as cut-and-dried as you suggest. There were efforts at continuing to care for the plaintiff, and she was only terminated after she honked everyone off by threatening to go the state. This is not to say that the congregation’s response to that was correct, only to highlight that both parties contributed to the escalation of this conflict.

    That said, I do not think this is the state’s business. Even as I agree with Pastor Curtis’ and Carl Vehse’s theological concerns.

  13. Phillip Magness :
    John,
    Are you suggesting that the Courts should exchange their establish jurisprudence in favor of the “WWJD” standard?

    No. I’m suggesting that a congregation that professes Jesus as Lord should have behaved according to that standard. And, if the congregation had, this matter would not have gone to the courts in the first place. I’m also suggesting that fair treatment for the teacher is a greater theological concern that those that you referenced.

  14. @John #17

    John,

    We are all of us simply too far away from this to know who exactly shares what measure of the fault in this case. Anyone who has been involved in an employment dispute in a church or church school can tell you that the case is rarely as clean cut as the publicly known facts would tell it. I have no idea if the church acted justly or not. I have no idea of Miss Perich acted justly or not. And neither do you. I wish both parties peace and healing and forgiveness in the Lord, and that is all I have to say about them.

    But what we can comment on is whether or not the LCMS should be telling the US Government that we have female ministers.

    +HRC

  15. @John #17

    I see. Well we just have to disagree. As I said, I certainly can see the congregation behaving differently, but at the same time neither of us were there and so we need to tread carefully. Unless perhaps you are positioned to judge in this case? Are you someone who has or had authority in that congregation, and therefore know more than the rest of us? All I can comment on is the public record, per the 8th Commandment, and from what I see both sides failed the WWJD standard.

    Be that as it may, even if one were to concede that the plaintiff was 100% wronged in this case and so is totally right in all her expectations and grievances, I don’t believe this singular act can in any way be greater than either the Doctrine of the Call (Right-Hand Kingdom) or the Separation of Church and State (Left-Hand).

  16. @Phillip Magness #16 : “There were efforts at continuing to care for the plaintiff, and she was only terminated after she honked everyone off by threatening to go the state.”

    That is a novel way of describing the teacher’s response that “she would assert her legal rights against discrimination” after the principal told her on February 22, over the phone she “would likely be fired.” Also, a Board of Education letter (on the same day!) described the teacher’s conduct as “regrettable” and indicated they would review the process of rescinding her call on account of her “disruptive behavior.”

    In fact, it looks more like the teacher’s “disruptive behavior” was actually in receiving beneficial medical treatment, obtaining her physician’s statement that she was again fit for unrestricted teaching duties, and showing up for work on the day she was no longer eligible for disability coverage… oh, and NOT resigning from her call as a commissioned teacher, which she was being pressured to do by the Board of Education, in exchange for “efforts at continuing to care” (a euphemism for “paying for a portion of her health insurance premiums for the remainder of the calendar year”).

    Since the Missouri Synod is an advisory body, some synodical/district body really fell down on the job back in 2005 by not advising Hosanna-Tabor they could potential screw themselves, the Missouri Synod, and other Christian church bodies by not seeking a peaceful resolution for their unlawful discrimination of a called church worker, which her lawyer had implored of Hosanna-Tabor some 20 days before they voted to depose her from her call.

    Of course, such synodical advise would be ironic since it was the Missouri Synod who used the idea having parochial school teachers called as “ministers” so that male teachers could avoid being drafted into the military to fight during WWII, and then applying it later to female teachers so that they could make use of IRS tax benefits on housing allowances for called ministers.

  17. This is in fact an extremely crucial case involving vast First Ammendment related issues. It is why such an astounding array of religious organizations have all joined the side of The LCMS in this matter.

    Regardless of anyone’s private opinions in this matter, The LCMS does consider its parochial day school teachers to be members of the office of “hilfsamt” – helping offices – or “auxiliary offices” to the one office of the ministry, as defined and explained in our key doctrinal statement on these matters Walther’s “Church and Ministry.”

    Using IRS nomenclature, we refer to them as “ministers of religion-commissioned” terminology that is, beside the point at the end of the day.

    Many church bodies have many who are defined as professional members of that church body’s staff/workers, call them what you will.

  18. Rev. Paul T. McCain :
    Regardless of anyone’s private opinions in this matter, The LCMS does consider its parochial day school teachers to be members of the office of “hilfsamt” – helping offices – or “auxiliary offices” to the one office of the ministry, as defined and explained in our key doctrinal statement on these matters Walther’s “Church and Ministry.”

    Even though I understand well the history of how LCMS teachers, initially only male teachers and only more recently female teachers, came to be classified as “ministers of religion – commissioned”, I agree that parochial school teachers are also correctly considered members of the “Hilfsamt”.

    Conceding the point that Cheryl Perich is (or, was) a minister, can someone please explain how adjudication of a complaint regarding her rights pursuant to ADA, as opposed to a wrongful discharge based on her performance of ministerial functions, equates to either an Office of the Call or a First Amendment issue?

  19. @John: I think Mr. Google will be your friend and you can read what a huge swath of religious organizations in this country have to say, with a fairly united voice, why this lawsuit is dangerous for free exercise issues.

  20. John,

    I echo Pastor McCain’s advice. Also, if you would re-read the news article, and my original comment, you will see that part of your answer depends upon HOW the court makes its decision. Both the plaintiff and the defendant disagree with the Justice Department on this, but if the court rules for the plaintiff AND the ruling is on the basis on the Justice Deparment’s claims……you have a royal First Amendment issue.

    In short, both parties went in arguing about, among other things, the call. But now the Obama Administration is seeking to widen the scope of this case.

    Also, Carl Vehse. I may have been too generous in my summary of the congregation’s actions. I wasn’t there, and we are all constrained to put everything in the kindest way. If the defense has conceded the plaintiff’s claims on things such as the private phone conversation, I was indeed being “novel” in polite efforts. So, point well-taken.

    From the comments, I think you and John know more about the particulars of the case than I do. My observations concern the bigger picture, and are primarily focused on the potential threat to our religious liberties.

    Civil rights mean nothing unless one has the right to be wrong in the eyes of the state.

  21. What I know is based on information provided in the Opinion and Order of the United States District Court, Eastern District of Michigan at Detroit, and the Sixth U.S. Court of Appeals decision.

    As for how the SCOTUS might lean, it might be worthwhile looking at the tea leaves contained in today’s transcript of the oral arguments made before the SCOTUS, where the lawyers on both sides answered questions from the various justices.

  22. Phillip :John,
    I echo Pastor McCain’s advice. Also, if you would re-read the news article, and my original comment, you will see that part of your answer depends upon HOW the court makes its decision. Both the plaintiff and the defendant disagree with the Justice Department on this, but if the court rules for the plaintiff AND the ruling is on the basis on the Justice Deparment’s claims……you have a royal First Amendment issue.
    In short, both parties went in arguing about, among other things, the call. But now the Obama Administration is seeking to widen the scope of this case.
    Also, Carl Vehse. I may have been too generous in my summary of the congregation’s actions. I wasn’t there, and we are all constrained to put everything in the kindest way. If the defense has conceded the plaintiff’s claims on things such as the private phone conversation, I was indeed being “novel” in polite efforts. So, point well-taken.
    From the comments, I think you and John know more about the particulars of the case than I do. My observations concern the bigger picture, and are primarily focused on the potential threat to our religious liberties.
    Civil rights mean nothing unless one has the right to be wrong in the eyes of the state.

    Phillip,

    Then why aren’t you rostered in the LCMS? You’re serving Bethany as a “lay delegate” at the conventions and on the synodical boards, not as a Commissioned Minister, but you’re doing the same job as one who was rostered.

  23. @Timothy C. Schenks #28

    I don’t understand the purpose of your question, Timothy.

    My support for the ministerial execption and the First Amendment have nothing to do with my status in the LCMS as a lay Cantor.

    All I can say about your question is that I am happy and blessed to be a member of a congregation that allows me to lead the Lord’s song and serve the church-at-large even though I am a convert to Lutheranism who attended a secular university.

  24. Phillip :@Timothy C. Schenks #28
    I don’t understand the purpose of your question, Timothy.

    I don’t understand what you mean by “purpose of your question,” Phillip. I asked why you are considered a layman by yor congregation, district and synod when you perform all the duties of a rostered Commissioned Minister of religion, which was the focus of the news article above. A huge number of congregations in the LCMS are hiring non-rostered teachers, musical directors and so forth yet if they are rostered they are considered to have some kind of official “call.”

  25. Again, my interest here is in our First Amendment rights. Whether or not I personally have a call in the eyes of the LCMS has nothing to do with that.

    But I’ll go ahead and humor you. You ask “Why am I considered a layman.” Answer: because I am. I am not on the roster of the LCMS and so am not qualified to receive an ecclesiastical call. My calling is simply my vocation. Like the butcher.

    As far as all the duties of a rostered Commissioned Minister of Religion” goes, I do not do all those duties, nor do all Commissioned Ministers of Religion have the same duties anyway.

    One does not need to be on the synodical roster to play the organ, direct choirs, compose music for the church, or help the pastors with preparing for the liturgy. And those are the things that I do. Sure, some “commissioned ministers” do this work. Some pastors even do it! In which case the “Rev. Kantor” has a call. But such musicians can and do perform other work that I don’t do.

    So, simply put, I am not a minister because I am not a minister.

    And I would support the ministerial exception regardless of whether my church would create a place on its roster for musicians like myself. It is up to the various churches to decide what their qualifications for office should be. The government should stay out of it.

  26. @Ted Crandall #32

    Not at all. Shows as much confusion as the Oakland Four. Does property belong to the congregation or the synod? Are we congregational or episcopal in nature? … Do we ordain women or not? … Do we have the tri-fold office of ministry or just one level? … We can and should do better about lining up our practices with our doctrines. Funny, didn’t Todd Wilken just start up a new thread about that?… I think it’s a great guestion, Pr. Crandall. Maybe one for Koinania.

  27. @Bruce Wurdeman #17: “Just to correct some misinformation floating around in this discussion, extending Calls to teachers has always been a part of our polity.”

    The Missouri Synod’s distinction between synodical members who are pastors or parochial school teachers is that pastors are considered as called ordained ministers (in the AC.XIV sense), while (originally only male) school teachers were considered as called commissioned ministers. Commissioned ministers now include deaconesses, DCEs, ministers of music, and so-called “certified lay ministers.” The identification of male teachers as called (commissioned) ministers began in WWII so that they would not be drafted to fight the Nazis and other Axis powers. LCMS female teachers remained contract teachers. In the late ’70s or early 80s the Synod started to classify synodically trained female teachers as called commissioned teachers so that they could qualify for the non-taxable housing allowances along with the male teachers.

    That there is a actual difference between the call of an ordained minister and the call of a commissioned minister is that, while the Missouri Synod leaders admit to having female ministers, they will adamently deny (at least publicly) to having female pastors.

    “In fact, the first Call issued on American soil by the Saxons was to a teacher, not an ordained pastor.”

    To whom was this call given and when?

    In his Zion on the Mississippi Walter Forster noted (pp. 431-2):

    “On the request of the ministers themselves, ‘calls’ were issued to them orally on June 1, 1839, by the Gesellschaft as a body….

    “[D]espite their insistence upon a ‘call’ from the people, the clergymen were not convinced in their own minds that this was sufficient. For this reason they considered an appeal for ordination to the Swedish Lutheran Church, to whose Episcopal form of polity they had referred admiringly a number of times in their official documents.”

    This was two days after they had deposed Martin Stephan as their bishop, and a day after Stephan had taken across the Mississippi River and deposited in Illinois.

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