Hosanna Tabor—a Victory for Religious Liberty?

Hosanna Tabor—A Victory for Religious Liberty?

Cheryl Perich began teaching at the Hosanna-Tabor Evangelical Lutheran Church and School in 1999.^[1]  As a teacher at the church-run school, Perich became a “called” and “commissioned minister.”^[2]  Even though she primarily taught secular subject matter, she did teach a class of a religion four days a week.^[3]  In addition, she led students in daily prayer and oversaw a weekly chapel service two times a year.^[4]  During 2004, Perich was forced to leave her position with the school on disability.^[5]  When Perich was ready to return in 2005, the school informed her that her position had been filled.^[6]  When Perich threatened to file suit, the school fired her for “insubordination and disruptive behavior.”^[7]  “She then filed charge with the EEOC, alleging that her termination violated the Americans with Disabilities Act.”^[8]  Although the federal trial court dismissed the case in favor of the church, the Court of Appeals for the Sixth Circuit reversed that holding on the basis that Perich’s “primary duties” were secular in nature, rather than religious.^[9]  The fact that Perich was a “called” and “commissioned minister” was not dispositive.  The case then went before the Supreme Court.

In a unanimous, 9-0, decision, the Supreme Court found the federal government’s position in favor of Perich as “extreme,” “remarkable,” and “untenable.”^[10]  The government argued that secular courts should be able to second-guess decisions made by religious organizations and their clergy, treating cases such as Perich’s as “garden variety employment-discrimination cases.”^[11]  The Supreme Court rejected such a sweeping suggestion.  The Court held that enabling such an intrusion into church governance “infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”^[12]  In addition, the Court stated that “according the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.”^[13]  “The church,” Chief Justice Roberts observed, “must be free to choose those who will guide its way.”^[14]

The Court’s use of the Establishment Clause to support its decision surprised some.^[15]  “Generally speaking, the Establishment Clause has been used in cases involving government aid to religion, government compulsion of religious activity, government endorsement of religion, or government favoritism among religions.”^[16]  While the “entanglement” prong has generally been used within the context described above, the Court’s use of the Clause in this case is not necessarily shocking.  Over the past decade numerous state courts have made use of the Establishment Clause in cases involving disputes over church governance, which is arguably inseparable from “the autonomy of organized religion.”^[17] Many state courts have been reluctant to become involved in “core ecclesiastical matters” on the basis of the “entanglement prong” of the Establishment Clause.^[18]  In Hosanna-Tabor, while the Court’s use of the Establishment Clause was not necessarily Avant-garde, its use, nonetheless, has given an effective “shield against intrusive governmental regulation” the ultimate stamp of approval churches have long desired.^[19]