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October 18, 2011


Is Religion Above the Law?

by Rev. A. J. Iovine
The United States Supreme Court.

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One of my favorite writers is Stanley Fish, a legal scholar with whom I agree on very little; thus, it is his writing style that has always caught me. Last evening, he wrote a rather extensive article on the New York Times website outlining a Supreme Court case that raises the question of whether or not federal statues apply to religious institutions when someone is performing religious functions. Of course, the real reason Fish’s article caught my eye — the case he cites deals with a Lutheran Church – Missouri Synod school and their actions against a teacher whom they fired for filing a lawsuit against them.

In a nutshell:

In 2005 Cheryl Perich, a teacher in the Hosanna-Tabor Lutheran Evangelical School, returned from an extended sick leave (she had been diagnosed with narcolepsy) to find that her services were no longer wanted. She declined to resign as requested, and after a resolution satisfactory to her was not forthcoming she filed a disability discrimination suit. The church responded by terminating her as a teacher, alleging that its reason was theological, not retaliatory. The Missouri synod, the church explained, requires its adherents to resolve disputes rather than bring suit in civil court; in failing to follow this rule, Perich had transgressed a core Lutheran belief.

The church further argued that as a “commissioned minister” Perich fell under the ministerial exception even though the bulk of her time was spent teaching secular subjects. Perich (through her attorneys) replied that her duties were not primarily religious, and that the assertion of a doctrinal violation was an afterthought devised to serve as a pretext for an act of retaliation in response to her having gone to the courts in an effort to secure her rights.

So the issues are, first, was she a minister in the sense that would bring her under the exception (in which case the state could not intervene to protect her), and, second, was the doctrine the church invoked as the reason for its action truly central to its faith? (There are other issues in play but, as we shall see, two are more than enough.)

All teachers who work within LCMS-based schools are “commissioned ministers.” As such, in accordance with the rules governing the Synod, “commissioned ministers” work for the good of the church and are to follow the basic theological rules of conduct. One of those — you can’t sue because it goes against the Synod’s theology and its conflict resolution policy. We pastors or even commissioned ministers do not sue the church because that is not what Christians do. We try to work it out.

The ministerial exception is not one that is debated a lot within LCMS circles. Honestly, this is “settled.” A when a teacher accepts a position in an LCMS school, they are doing so not just as a teacher of a specific subject, but also as one who has been commissioned by the church to teach. That means they are living under a different set of rules than a regular teacher in a non-religious institution.

It will be interesting to see how the Supreme Court will rule. Will they stand with the rights of the church to govern their own affairs as based upon their beliefs and theology? It shall be interesting.


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