by Jack Minor –
A Christian attorney says the Supreme Court is scheduled to hear a case that could force religious institutions to hire LGBT people or face discrimination lawsuits by all employees except for those involving the pastor or similar positions.
The case, Hosanna Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, is scheduled to be heard by the court on Oct. 5.Several organizations have filed an amicus brief, asking the Supreme Court to go against current precedent and expand anti-discrimination rules to include churches’ hiring and firing practices.
The American Civil Liberties Union and Americans United for Separation of Church and State, have asked the court to narrowly define employees covered under the “ministerial exception” rule protecting churches from discrimination claims.
The case involves Cheryl Perich, a teacher with the church school. Perich suffers from narcolepsy and claims she was fired for her disability. In 2005, seven months after Perich became ill; the school hired a replacement teacher when Perich could not give a definite date for her return to work.
According to the church, shortly after hiring the new teacher, Perich produced a note from her doctor certifying that she would be able to return to work. The brief says the school board told Perich that, “Dince there was no opening for her to return to, she could not return to work on February 22. But on February 22, with no notice save a late-night email on February 21, Perich showed up at the school and refused to leave until Hoeft gave her a letter acknowledging that she had reported to work. Later that day, Perich told Hoeft that if she were not reinstated, she would sue the Church.”
Gregory Lipper, Litigation Counsel for Americans United, says the brief calls for increasing protections for churches. “This brief advocates for significant protection for religious entities. We are actually advocating broader protection than the United States is in this case.”
Lipper continued, “We agree that religious entities should have protection against discrimination lawsuits when they are hiring people with religious responsibilities and, when the basis for discrimination relates to that entities religious doctrine.”
Lipper gave the example of a church that was opposed to French people, saying they could refuse to hire French people. “The basis of our brief is that your discrimination has to apply to your religion. For instance, if the person doing the hiring personally doesn’t like women, he does not have the right to discriminate.”
Lipper admits it is a thorny case and this is the first time the case has gotten to the Supreme Court.
Attorney David Gibbs, founder of the Christian Law Association, has stated Lipper is incorrect and, that, rather than expanding protection for churches, their brief actually calls for greater restrictions on a church’s freedom to hire based on biblical convictions.
Gibbs said liberal groups such as the ACLU have been attempting to break down the walls of separation regarding a religious institution’s discretion in hiring practices for many years. “They want to limit the exception to the top leaders such as the pastors, priests or rabbis.”
According to Gibbs, the brief attempts to make a distinction between people hired solely for a religious position such as a pastor, and “secular” positions such as a church secretary or teacher in a Christian school.
Many churches argue that there is no distinction, and that based on their philosophies and biblical principles, every position from the janitor to the pastor is religious.
Gibbs said the case is significant because it is the first one to reach the Supreme Court regarding the “ministerial exception” in hiring and firing.
Gibbs said traditionally churches have been exempted from discrimination claims based on this exception. “Historically it has been a broad immunity; however, this has been chiseled at around the country on a number of points. The issue is ,who is a ministerial employee?” Gibbs continued, “This case is putting this ministerial exception right before the courts and the U.S. Supreme Court is going to have to decide if they want to get involved in these religious matters or if they want to stay out of it.”
The ACLU and Americans United, plainly express their frustration with the ministerial exception for churches in hiring and firing, saying it is preventing efforts to end discrimination.
“The ministerial exception is designed to allow religious bodies to practice their religion and convey their message without government interference. But the exception thwarts society’s interest in ending discrimination,” the brief says.
Gibbs said if the court were to agree with the ACLU’s brief it could cause problems for independent Baptists and other churches who have strict standards involving morality for all staff members. “If a single woman gets pregnant out of wedlock and is terminated is that a religious motivation? Is that gender or pregnancy discrimination because men cannot get pregnant?”
Gibbs said the courts have traditionally said that the churches decide if it is religious discrimination or not. “What many are advocating in this case is to let the courts decide. This will have a chilling effect on churches being able to hire and fire based on their faith.”
Gibbs said if the Supreme Court rules against the church in this case, it could eventually open the doors for LGBT individuals to sue churches for refusing to hire them for jobs not directly related to the spiritual duties of the institution, such as teachers, secretaries, custodians or other similar jobs..
The Gazette asked Gibbs if an unfavorable ruling could eventually cause churches to lose their 501 (3) c status if they discriminate against homosexuals whether it be in the hiring process or refusing to perform same sex weddings. Gibbs said, “Absolutely. We need to remember that in these employment discrimination cases the plaintiff gets attorney fees as well if they win.”
“Basically what they are saying is, if you want to discriminate, you can’t hire anybody. This would relegate churches to being volunteer-driven organizations. That would be a huge chilling effect on the work of the churches. This is a huge case.”