Jewish groups welcome Supremes Court’s ‘ministerial exception’ ruling

Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Elena Kagan in the Justices’ Conference Room on Saturday, August 7, 2010.

By Ron Kampeas, JTA

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WASHINGTON—Two groups each known for their internal divisions

on religion-state issues found themselves in a degree of accord

last week: the justices of the United State Supreme Court and the

organized Jewish community.

In a decision issued Jan. 11, the Supreme Court unanimously

upheld the right of religious institutions to use “ministerial

exception” to bypass employee discrimination protections and fire

staff, but stopped short of setting parameters for the


Some civil libertarians had argued that courts should have the

right to intervene in matters pertaining to the employment of

clergy, a stance that even some of their usual allies in the Jewish

community rejected.

“There’s wall-to-wall belief in the religious community that that’s

a clear violation of what the framers intended,” said Rabbi David

Saperstein, director of the Religious Action Center of Reform

Judaism, which praised the court’s ruling. “There’s nothing more

fundamental than choosing your own clergy.”

Americans United for Separation of Church and State was among those

who blasted the decision. “Blatant discrimination is a social evil

we have worked hard to eradicate in the United States,” said the

Rev. Barry W. Lynn, its executive director. “I’m afraid the court’s

ruling today will make it harder to combat.”

The court’s ruling could limit legal recourse for members of the

clergy in their dealings with employers. Even before the ruling,

rabbinical associations were already advising rabbis to write

employment protections into their contracts, an official of one

such rabbinical group said.

Jewish groups had closely watched Hosanna-Tabor Evangelical

Lutheran Church and School v. the Equal Employment Opportunity

Commission, a case in which a teacher alleged that a Michigan

religious school had violated the Americans With Disabilities Act

in firing her.

The school claimed that Cheryl Perich, who suffers from narcolepsy,

was exempt from protection as a minister. Perich and the EEOC

countered that most of her work involved secular teaching.

It was the first time that the Supreme Court considered ministerial

exception, a doctrine that had been shaped by lower courts. Its

decision has the effect for now of making its application the law

of the land.

The court unanimously held that Perich fell under the “ministerial

exception” rule not because of the amount of time she devoted to

religious teaching-45 minutes a day-as a lower court had ruled, but

because she had been ordained as a minister by the church in


The reluctance to delve into details reflected divisions among the

justices. Clarence Thomas, in a concurring opinion, wrote that the

court should stay out of deciding who is and who is not clergy

altogether. Samuel Alito and Elana Kagan seemed to suggest that

Roberts’ “minister” designation was too narrow, noting that the

limitation also should also apply to religious leaders who do not

receive formal ordination.

There was similar diversity among Jewish groups who supported the


In friend of the court briefs, the Orthodox Union and Agudath

Israel of America favored allowing broad discretion to religious

institutions in determining ministerial status. The Reform movement

and the American Jewish Committee said considerations of whether

ministry was essential to a staffer’s role should not be assessed

according to hours worked, as the lower court had determined. The

Anti-Defamation League sought to place the burden of proof on the

employer, not the employee.

Each group, however, welcomed the ruling. “The burden of showing

that an employee is not entitled to the protection of

anti-discrimination laws is now rightfully on the religious

institution,” said the ADL.

The AJC said the “unfettered right of religious institutions to

decide who shall convey their religious messages is as much an

element of church-state separation as the ban on government

sponsorship of religious messages.”

The Orthodox Union said the ruling ensures that “houses of worship,

parochial schools and other institutions whose missions are to be

places of worship” are “constitutionally protected from

interference by the secular state.”

The Aguda said that “secular authorities are neither equipped nor

allowed to engage in these religious determinations.” And the

Reform movement called it a “favorable decision for ensuring

religious autonomy in a limited manner that still maintains vital

anti-discrimination laws that protect the rights of employees of

all faiths and no faith.”

The Reform statement sounded the only note of concern among Jewish

groups, noting that the ruling did not protect employees who sought

to clarify their status through the EEOC from retaliation by the

religious institution.