How 'Hosanna-Tabor' is shaping employment at Catholic schools

Washington D.C., Jun 30, 2019 / 05:01 am

In the wake of recent controversies over teacher hiring, and firing, at religious schools, CNA spoke with professor Rick Garnett from Notre Dame Law School to discuss the future of religious liberty.

In 2012 the US Supreme Court ruled unanimously in the case Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the Free Exercise Clause of the First Amendment prevents the government from interfering with the hiring or firing of ministers. The case also determined what can be considered under the ministerial exception.

A woman named Cheryl Perich was a religion teacher at Hosanna-Tabor Evangelical Lutheran School for five years, before she went on disability in 2004. When she was cleared to work the following year, she was not offered her job back, and the school said they had hired someone else to teach religion. Perich then sued for unlawful dismissal, stating that her firing was a violation of the Americans with Disabilities Act.

The court said that her firing was in fact not unlawful, due to the religious component of her job, which the Supreme Court said likened her to a minister. The government cannot be involved with the employment of ministers, which would be a violation of the First Amendment.

The Establishment Clause would prevent "a situation like in England, where the queen picks the bishop," explained Garnett. "The idea behind the ministerial exception is that our Constitution doesn't permit stuff like that."

A minister, said Garnett "is broader than just, you know, an ordained priest or pastor. It includes people who work for religious institutions, and who have a role in the religious mission of these institutions."

The effects of Hosanna-Tabor may be seen in the coming years, as the exercise of religious liberty in schools becomes a bigger and bigger problem.

"One place where this is coming up a fair bit and creating some controversy is when you have religious schools that are firing teachers who enter into a civil same-sex marriage," said Garnett.

"That's happened at a number of Catholic schools around the country. And in a number of these cases have been lawsuits saying the firing was illegal, on the ground that it was discrimination."

The schools, Garnett said, have responded to the claims of discrimination that these teachers are teaching at Catholic schools, and therefore are ministers.

"So far, there's been some disagreement about how to handle these cases in the Supreme Court," said Garnett.

Recently, two Catholic high schools in Indianapolis were in the news. One defied orders from the archbishop to not renew the contract of a teacher who is in a civil same-sex marriage, opting to keep him on staff. The other high school decided not to renew the contract of one of their teachers who is in a same-sex marriage, who is, coincidentally, married to the other teacher.

Other religious liberty issues are beginning to arise over school vouchers. The Maryland Department of Education last year disqualified Bethel Christian Academy from participating in the state's Broadening Options and Opportunities for Students Today voucher program, which benefits low-income students in the area.

The department had previously requested to see the student handbooks of schools in the program. Bethel's handbook includes a statement of Christian beliefs about marriage and sexuality.

Garnett told CNA that does not think schools should be forced to give up the ministerial exemption to get vouchers, and that "every school [should] get some sort of public support."

Correction: This article originally referred to both Indianapolis high schools as "Jesuit" instead of Catholic.