BYU fights for religious hiring authority


A church’s decision to dismiss one of its ministers should not be reviewed in court or subject to any other government interference, according to a written friend-of-the-court brief filed by The Church of Jesus Christ of Latter-day Saints in a case argued last week in the U.S. Supreme Court.

“When believers come together to form a church, they must have the freedom to decide for themselves who will be placed in positions of responsibility for the church’s religious affairs,” lawyers argued in the written brief filed for the Church of Jesus Christ along with the Conference of Catholic Bishops and several Episcopal and Jewish groups.

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In Hosanna-Tabor v. EEOC, the U.S. Supreme Court will decide if private religious universities have the right to hire or fire based on religious reasons. The Court's decision could affect the way BYU hires faculty and staff.

The BYU International Center for Law and Religion Studies also filed a friend-of-the-court brief in the case, in which a religious school in Redford, Mich., argues that a former teacher who was fired after threatening to sue for discrimination should not be allowed to litigate her claims in court but only rely on church policy for recourse. The case addresses long-standing issues of separation of church and state, and how much, if at all, the government should be allowed to interfere in religious affairs.

The Supreme Court heard oral arguments in the case Oct. 5, and lawyers at that time disputed whether the Hosanna-Tabor Evangelical Lutheran Church and School improperly fired teacher Cheryl Perich. Perich suffered narcolepsy and claims she was retaliated against for seeking to enforce her rights under the Americans With Disabilities Act, but the school said it had a right to dismiss her under the “ministerial exception,” which has traditionally barred employment-related lawsuits against religious organizations by those who perform religious functions.

The Justices are expected to issue a written opinion in the case sometime before the end of the Court’s current term in June 2012.

In expressing support for Hosanna-Tabor, the BYU Law School International Center for Law and Religion Studies brief took a broad perspective, examining the issue from the point of view of various international democratic societies. The BYU Law brief, coauthored by W. Cole Durham, Jr., and several other BYU law professors, discussed how certain foreign nations share the United States’ constitutional commitment to the autonomy of religious institutions.

The Durham brief recognizes that some foreign governments retain strong connections to religious organizations. For example, Germany collects a “church tax” from religious adherents. Nonetheless, these countries recognize a need for the ministerial exception, granting religious organizations the right to select their own leaders.

“Just as the United States has consistently striven to ‘chart a course that preserves the autonomy and freedom of religious bodies,’ so too foreign jurisdictions have repeatedly recognized how essential autonomy is to religious freedom,” Durham and other BYU law professors wrote in their brief.

At oral arguments Oct. 5, some of the Justices’ questions appeared skeptical of a church’s right to fire employees without the possibility of judicial review in case of violation of individual employment rights. Justice Sonia Sotomayor, for example, asked the lawyer for Hosanna-Tabor whether a religion that advocated criminal conduct should be free from government regulation when it fires employees for attempting to report those crimes. Hosanna-Tabor’s lawyer, Douglas Laycock, answered that an improper discharge lawsuit by the minister is not the proper forum for inquiry about the religion’s conduct in that case.

“The problem with that is that it doesn’t take account of the societal interest in encouraging the reporting,” Justice Sotomayor said.

At oral argument, a lawyer for the federal Equal Employment Opportunity Commissioned joined a lawyer for Perich in arguing that Perich should be able to litigate her improper dismissal claim against Hosanna-Tabor. Walter Dellinger, the attorney for Perich, argued that Perich was not a minister and therefore the ministerial exception did not apply. Dellinger conceded that if the Catholic Church fired one of its priests, the priest would not be able to gain reinstatement or money damages through a lawsuit. But, he said, Perich was not like a Catholic priest.

Perich filed suit with the EEOC when she was removed from her job after returning from medical leave for narcolepsy. She claimed  Hosanna-Tabor discriminated against her in violation of federal law because she threatened to sue the school. If Perich were to win the case, religious institutions’ process for selecting and retaining employees might be altered, and currently acceptable practices by religious organizations to enforce religious standards on employees could be considered unacceptable.

The friend-of-the-court brief filed by the Church of Jesus Christ addressed Court precedent stating that religious organizations are free to  conduct their internal affairs, including the selection of ministers, without state interference. The brief suggested that anyone who performs religious functions, including someone such as Perich who taught both religious and secular topics, falls under the ministerial exception.

“When a would-be minister sues a church complaining of exclusion from service in ministry, the protection of the First Amendment is unqualified and absolute,” lawyers wrote on behalf of the Church of Jesus Christ and other religious groups. “There is no occasion in such a case to ‘balance’ the church’s right against the asserted interest of the state. The reason for the church’s decision is beside the point. The point is that under our constitutional structure, who decides the question is determinative, not what is decided or why.”

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