“It’s none of the business of the government to decide what the substantial interest of the church is,” Scalia said.
But others on the court thought there might be a role for the government, although no consensus was apparent on that or on whether it would apply in the case before them, which involves Cheryl Perich, a former teacher at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich.
After taking religious classes, Perich was promoted from a lay teacher to a “called” teacher in 2000, and she taught religious and secular classes, such as math, and occasionally led chapel.
She became ill in 2004 and took a leave, eventually receiving a diagnosis of narcolepsy. When she tried to return to her job, the school said that it had hired another teacher and that she probably would be terminated.
Perich threatened to sue under the Americans With Disabilities Act, and the church fired her. It said that she was not fit for ecclesiastical office and that her action violated Lutheran teachings that disputes be handled within the church, rather than in civil courts.
The Equal Employment Opportunity Commission took up Perich’s cause and sued the church.
A federal judge agreed with the church that Perich fell under the ADA’s ministerial exception, which keeps the government from interfering with church personnel decisions. But the U.S. Court of Appeals for the 6th Circuit reinstated her lawsuit, saying the exception didn’t apply because Perich’s primary function was teaching secular subjects.
University of Virginia law professor Douglas Laycock, representing the church, said its argument rested on a “bedrock” principle:
“The churches do not set the criteria for selecting or removing the officers of government, and government does not set the criteria for selecting and removing officers of the church.”
The justices did not find it so simple. Who decides if a teacher is just a teacher or someone who falls under the ministerial exception? Justice Ruth Bader Ginsburg said that even after her religious training, Perich’s duties did not substantially change.
Justice Sonia Sotomayor was interested in the government’s argument, advanced by Assistant Solicitor General Leondra R. Kruger, that it has an “overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.”
Sotomayor asked Laycock: “Doesn’t society have a right at some point to say certain conduct is unacceptable,” even if some religions sanction drug use or sexual contact with minors? “And once we say that’s unacceptable, can and why shouldn’t we protect the people who are doing what the law requires, i.e. reporting it?”