January 11, 2012 | 12:07 pm

Jews can keep debating the meaning of Hosanna-Tabor v. EEOC and Cheryl Perich

Posted by Shmuel Rosner

The US Supreme Court has just sided unanimously with a church sued for firing an employee on religious grounds. In the case of Hosanna-Tabor v. EEOC and Cheryl Perich, the federal Equal Employment Opportunity Commission sued the Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich., on Cheryl Perich’s behalf after she was fired. Perich, a teacher, had complained of discrimination under the Americans With Disabilities Act.

The details of the case are this: Cheryl Perich, a church-commissioned teacher at Hosanna-Tabor - a church and school in Redford, Mich., affiliated with the Lutheran Church-Missouri Synod (LCMS) - was diagnosed with narcolepsy and took leave. When she asked to return to work, the school said it didn’t think she was ready. She threatened to sue, and the church then withdrew her commission and fired her, saying that she violated church teaching by turning to the courts instead of resolving the dispute through the church’s established tribunals, as LCMS teaching requires.

The Jewish argument in support of the ultimate ruling of the court was not unanimous in tone and nuance. The more conservative Jewish groups argued that the right of religious institutions to select their ministers “extends to all who perform religious functions”, and that this right is not limited to those who exercise purely or primarily religious duties. The more liberal Jewish groups made a case (that can be found in this brief of the American Jewish Committee and the Union for Reform Judaism) that is more limiting to religious institutions.

The AJC and the URJ had argued that all courts and parties “recognized a ministerial exception to employment discrimination laws as a necessary means of protecting religious institutions’ right to select and appoint clergy”. They believed that in the case presented to the court, the Sixth Circuit “erred in the standard it applied to evaluate whether Respondent Cheryl Perich’s position as a teacher in a Lutheran school was ‘ministerial.’ It applied a simplistic, quantitative test - counting minutes per day spent on various job activities” when it should have used a “holistic” approach that would be “objectively examining the nature of the position and the particular employee’s function within the religious organization”. In other words, these organizations would be more cautious in defending a firing of an employee to which the “holistic” test was applied, if the person in question could not be clearly defined as having a “ministerial” role.

Did the court clearly side with one of the two approaches? Not really. In this case it was ultimately “reluctant ... to adopt a rigid formula for deciding when an employee qualifies as a minister,” as Justice Roberts explained. “It is enough for us to conclude, in this, our first case involving the ministerial exception, that the exception covers (Cheryl) Perich, given all the circumstances of her employment.” This was probably the easiest way for the Chief Justice to have all justices siding with the ruling, and avoid the unavoidable split between liberal and conservative justices on a more nuanced definition of “ministerial” employment.

Bottom line: All Jewish organizations made the right call on the specifics of this case, but differences between them are likely to arise in future cases.

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