By Gene Ogorodov
[This is a critique of a SCOTUS case, Hosanna-Tabor v. EEOC, that I wrote a few months back. It first appeared in the Portland Occupier January 28, 2012.]
The Supreme Court made a ruling on the second landmark First Amendment case in three years—Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.
On 11 January 2012, the Court’s unanimous decision on this case has
further secured the rights of corporations hitherto enjoyed only by
individual American citizens.
The ruling comes on the heels of the of the controversial judgement in the 21 January 2010 case Citizens United v. FEC,
which undermined one hundred years of the legal distinctions between
the rights of individuals and the rights of corporations in influencing
elections.
This case was the first time that the right of a religious institution to hire and fire its ministers at will —ministerial exception— was pitted against the rights for disabled employees to receive fair employment opportunities and treatment under the Americans with Disabilities Act.
Chief Justice Roberts wrote: “Until today, we have not had occasion
to consider whether this freedom of a religious organization to select
its ministers is implicated by a suit alleging discrimination in
employment.”
The suit was first brought against Hosanna-Tabor Evangelical Lutheran
Church and School, Redford, Mich. by the Equal Employment Opportunity
Commission, after a former teacher at the school, Cheryl Perich, 35,
brought allegations against the school claiming that she had been fired
over her taking a leave of absence for a medical condition.
Perich taught fourth grade at Hosanna-Tabor in 2003-2004, but in June
2004 she contracted narcolepsy. She spent the 2004 fall semester on
medical leave with the expectation that she would be able to return to
her job once she recuperated. “On January 27, 2005, however, Perich
notified the school principal, Stacey Hoeft, that she would be able to
report to work the following month. Hoeft responded that the school had
already contracted with a… teacher to fill Perich’s position for the
remainder of the school year.”
Three days later at the Hosanna-Tabor congregational meeting Hoeft
and other members of the school’s administration claimed that “Perich
was unlikely to be physically capable of returning to work that school
year or the next.” To which the congregation offered to pay some of
Perich’s medical premiums in return for her resignation.
Perich didn’t resign, and after the school refused to let her return
to work on the date her doctor cleared her to teach, 22 February 2005,
she brought the aforementioned charge against Hosanna-Tabor with the
EEOC.
The difficulty in this case arose out of the fact that the Missouri
Synod, to which Hosanna-Tabor belongs, possesses two classifications of
teachers—“lay” and “called.” The “lay” teachers perform the duties of
any other teacher in any school environment without performing any
religious function. The “called” teachers on the other hand are required
to have received specific religious training and perform minor
religious instruction and the official title for the “called” teachers
is Minister of Religion-Commissioned.
Due to the fact that Perich’s official title was minister, that she
performed a religious function, and that she had claimed tax privileges
under ministerial exception the Supreme Court ruled in favor of
Hosanna-Tabor Church and School against the EEOC, finding that
ministerial exception precludes the application of the ADA in Perich’s
case.
At first glance it looks like Hosanna-Tabor further defines the roles of church and state, but that barely touches the surface.
In a diverse society with a plethora of religious traditions each
defining the ministerial role in slightly different ways and where state
oversight by licensing ministers is prohibited, what constitutes a
minister? This decision held that the respondent Cheryl Perich possessed
“ministerial exclusion” because she performed religious duties for
approximately 45 minutes a day.
Neither Hosanna-Tabor nor the Missouri Synod was asked to demonstrate
the importance of Perich’s role in the practice of the Lutheran faith.
All the court wanted was proof of a ministerial title with specific
qualifications and proof of religious function without regards for the
historic tradition of the faith.# The burden of proof, therefore, lay
with the individual and not the organization.
Ministers under common law are not employees; rather, they are
self-employed persons contracting their services to a congregation,
which is reflected in things like their tax status. The understood
assumption is that a minister has the leverage and ability to negotiate
for his or her own interests of a self-employed contractor.
Cheryl Perich’s position at Hosanna-Tabor cannot in any way be
described as a self-employed contractor. She was an employee at a
school, and with the Hosanna-Tabor case anti-discrimination
laws cease to be universally applicable to employees of religious
institutions, since the Court has ruled that some employees can be
classified as ministers.
However, the outrage extends beyond the nuances of religious
terminology and the practice of ritual. All employees of religious
institutions are at risk. Names, ceremonies, and functions no matter how
minor can be altered to fit within the framework of this brand-new
loophole.
How difficult is it to change the name of a church-school janitor to
sexton-minister, institute a consecration ceremony, and require that he
or she pray at some point during his or her working day? Under
Hosanna-Tabor this person would legally be a religious minister and
entitled to ministerial exception, and all the discrimination that it
entails. ADA exists to protect the rights of the employees against the
possible caprices of employers, but if you are an employee of a
religious organization its safeguards are no longer necessarily for you.
What is the reason to protect an employee’s rights when an
organization can so easily work around the expense and difficulty? The
answer is simple: None. The vast majority of religious organizations
will not take advantage of this technicality, but that is because of
their generosity. Federal labor protection has ceased to be the legal
right of de facto employees of religious organizations.
The law has given up the right to judge who is an employee and who is
an independent contractor in favor of the unsubstantiated decisions of
the private religious organizations which hire these people.
Furthermore, these corporations can hide behind the thin veil of the
freedom to practice their religion without the interference of the state
to call an employee a minister. This court decision is a mockery of the
Separation of Church and State and exposes the hollowness of US labor
law.
There are few cases in which the rights of individuals are set
against the rights of corporations where the Supreme Court so blatantly
ignores the liberties of the people in favor of corporate privilege.
Once again the Roberts Court has trampled on the freedom of the American
people in order to preserve the privilege of corporations.
It is an outrage that just two years after Citizens United that this Court should repeat and reinforce the same injustice for a second time.
In his concurring opinion to Citizens United Justice Scalia
expresses the logic behind these two rulings: “[T]o exclude or impede
corporate speech is to muzzle the principal agents of the modern free
economy. We should celebrate rather than condemn the addition of this
speech to the public debate.”
Where is justice for the private citizen?
Equality in rights without an equal means to utilize these rights is
nothing more than a legal fiction disguising privilege. There is no
freedom if there is not an equal playing field. Specific rights of
institutions are not granted for the sole good of those institutions,
but for the good of society at large.
Freedom of religion is not a carte blanch for a religious institution to govern its members as if they were not citizens of the United States; rather, it is a protection for those members (and all members of similar organizations) to enjoy the free association and practice of their religion within the framework of an institution and a set of belief through the guiding hand of rituals which are not subject to the dictates of external authority.
When the individual rights of private organizations cease to be for
the good of society at large and become a justification for the
suppression of the rights of others, those rights are transformed from
the signs of liberty to tokens of privilege.
Privilege is the eternal enemy of freedom. Freedom is only freedom if
the rights are enjoyed by one and all. Freedom to compete against
outrageous odds without mediation from the Federal government has begun
to pass for political dialogue. Money and privilege have replaced
equality before the law. Justice is for sale, and democracy has become
the plaything of those who can concentrate the most capital to achieve
their goals.
Works Cited
- Hosanna-Tabor Church and School v. EEOC 10-553 (2012)
- Citizens United v. EEOC 558 U.S. __ (2010)
