The church can fire its priest, but can it fire the altar boy?

The case of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC is one of the first cases to be argued in the 2011-2012 SCOTUS term that opens today in Washington D.C. This First Amendment freedom of religion case arises from an employment dispute at a now-defunct church in Redford, MI.

The issue in the case is the scope of the long-recognized exception to the federal employment discrimination laws when it comes to hiring or firing the clergy for a church, synagogue, or mosque.  This so-called "ministerial exception" has been recognized by all 12 federal appellate courts with the authority to hear such cases, as well as the supreme courts of 10 states.

The rationale behind the exception is that religious organizations, under the freedom of religion, should be allowed to make their own decisions about hiring and firing clergy, without concern of the normal anti-bias laws.  The question to be argued before SCOTUS on Wednesday morning is how deep into the staff and the payroll this ministerial exception goes.

Most religious institutions want the freedom to make all staffing decisions without concern for federal employment law; not just decisions relating to the pastor, the priest, the rabbi or the imam.  They are pushing for a flat-out ban on all anti-bias laws for any staffing decisions.

The Solicitor General asserts that, to the extent it is recognized, the church's interpretation of the exception is too broad.  Church staff members, the federal government will argue, are protected by federal and state employment laws.

The Hosanna-Tabor Church case involves a parochial school teacher who was fired allegedly because of her numerous disability-related complaints; the claim is that her firing by the church-school was retaliatory.  If the High Court considers her to be the equivalent of a clergy member, then she cannot seek the shelter of the Americans with Disabilities Act; if she is deemed to be a mere staffer, then she is entitled to protection under the applicable laws.

SCOTUS has seen disputes akin to this in prior petitions.  One of the reasons the Redford, MI church's petition may have been selected is because it was prepared and filed by University of Virginia Law School's Professor Douglas Laycock; one of the nation's leading experts on church-state law.

Our First Amendment jurisprudence continues to grow ever richer.  Stay tuned for the result.

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