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Separation of Church and State
Law Memo ^

Posted on 06/27/2011 7:13:27 AM PDT by marbren

The Equal Employment Opportunity Commission (EEOC) sued the employer, asserting a retaliation claim under the Americans with Disabilities Act (ADA). The trial court dismissed the claim, based on the "ministerial exception" to the ADA. The 6th Circuit vacated the trial court's dismissal.

The ministerial exception is codified in the ADA (42 USC Section 12113(d)), but it is rooted in the 1st Amendment and has been applied to Title VII and other employment discrimination statutes. The EEOC's claim arose from the discharge of a teacher from a sectarian school, and the primary issue on appeal was whether the teacher was a "ministerial" employee subject to the ministerial exception. The 6th Circuit noted that "[t]he question of whether a teacher at a sectarian school classifies as a ministerial employee is one of first impression for this Court."

The 6th Circuit observed that "the overwhelming majority of courts that have considered the issue have held that parochial school teachers ... who teach primarily secular subjects do not classify as ministerial employees for purposes of the exception." The 6th Circuit also observed that "when courts have found that teachers classify as ministerial employees for purposes of the exception, those teachers have generally taught primarily religious subjects or had a central role in the spiritual or pastoral mission of the church." Applying those standards, the court concluded that the teacher at issue did not fall within the scope of the ministerial exception. The court noted that the teacher taught secular subjects, and spent only forty-five minutes out of her seven hour workday on religious-oriented activities. The court reasoned, "[t]he fact that [the teacher] participated in and led some religious activities throughout the day does not make her primary function religious."

(Excerpt) Read more at lawmemo.com ...


TOPICS: Religion & Culture; Religion & Politics
KEYWORDS: ada; eeoc

1 posted on 06/27/2011 7:13:30 AM PDT by marbren
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To: marbren

Should the Government police corrupt religious institutions?


2 posted on 06/27/2011 7:15:08 AM PDT by marbren
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To: marbren

The Supreme Court will decide.


3 posted on 06/27/2011 7:16:27 AM PDT by marbren
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To: marbren; Quix; Belteshazzar; xone

An interesting case.


4 posted on 06/27/2011 7:20:43 AM PDT by marbren
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To: marbren

The facts presented do not support the claim the teacher was in a ministerial position. She was a lay teacher hired by a religious institution to do secular work.


5 posted on 06/27/2011 7:26:02 AM PDT by lastchance ("Nisi credideritis, non intelligetis" St. Augustine)
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To: marbren

The full article at the link describes her as a commissioned minister. Not sure what that means. But if she was a minister than yes the exception should apply.


6 posted on 06/27/2011 7:28:40 AM PDT by lastchance ("Nisi credideritis, non intelligetis" St. Augustine)
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To: marbren

It is also essential that the religion itself defines who is a minister and not the government. It is also important that religious practice not be defined by the government in such incidents.


7 posted on 06/27/2011 7:33:32 AM PDT by lastchance ("Nisi credideritis, non intelligetis" St. Augustine)
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To: lastchance

Will the Supreme Court rule with the LCMS or EEOC?


8 posted on 06/27/2011 7:46:19 AM PDT by marbren
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To: lastchance
If the religious institution treats the minister like dirt what should the minister do? IOW what if the institution is not Christian but a scam?
9 posted on 06/27/2011 7:57:03 AM PDT by marbren
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To: lastchance
What if a Bishop or Cardinal in a Vatican diocese in the USA discriminated against a parish Priest due to a disability? Let's say the disability had no impact on the function of the ministry. Does the priest have rights in the USA?
10 posted on 06/27/2011 8:23:22 AM PDT by marbren
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To: marbren
What if a Bishop or Cardinal in a Vatican diocese in the USA discriminated against a parish Priest due to a disability? Let's say the disability had no impact on the function of the ministry. Does the priest have rights in the USA?

Better question, what right does the Government have in determining what is and what isn't acceptable within a Religion? You mention disability, but what if the "disability" was the parish Priest's homosexuality and he was being "discriminated against" due to the clash between what the sodomites are pushing and what God commands?

I could easily see this scenario coming in the near future.

11 posted on 06/27/2011 10:16:48 AM PDT by paladin1_dcs (Voting for the lesser of two evils is still voting for evil.)
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To: paladin1_dcs

I agree, But, what about this teacher does she have any protection? Maybe she is just a victim for the greater good?


12 posted on 06/27/2011 10:45:25 AM PDT by marbren
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To: marbren

Well why bother at all the ADA is unconstitutional anyways.


13 posted on 06/27/2011 10:49:07 AM PDT by Ratman83
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To: paladin1_dcs; Quix
In a so called christian religious institutional organization who would be in power and control? IMHO I would say the politicians, AKA pharisees.
14 posted on 06/27/2011 12:23:50 PM PDT by marbren
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To: marbren
I agree, But, what about this teacher does she have any protection? Maybe she is just a victim for the greater good?

Honestly marbren, I don't know what to tell you. After looking into the case, some details came to light that make this a little more cut and dried in my mind, but it's still distasteful all the same.

First of all the teacher, Cheryl Perich, was not only hired to teach secular classes but was also required to be a commissioned (not sure if this is the same as being ordained) minister and lead students in prayer and worship.

Second, the School was owned and operated by a Church, the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich. Since this was not a secular School, no public funds were involved in the employment of Ms. Perich.

Third, when Ms. Perich became ill in 2004 and spent several months on disability, Perich was diagnosed and treated for narcolepsy and was able to return to work without restrictions. But she said the school at that point urged her to resign and, when she refused, fired her.

I may be reading that wrong, but from my impression, the teacher was allowed to return and then a short time later requested to resign and then fired. I'm not sure exactly what happened here but just how far into an employer's business practices can the EEOC delve before someone says that it's too much? I understand that we aren't to discriminate against people, but what about the employer? Is the Church stuck with this employee now, even if she can't do the work, just because she got narcolepsy?

In my mind, it's cut and dried that since the sickness precludes Ms. Perich from doing her job, she shouldn't be allowed to keep her job. Perhaps another position could be found for the woman by the Church that was running the School, but that's the Church's decision and not up to the Court. After all, the Church is providing the funding for the position anyway, why should the Court think it has dominance here? It sounds like to me that the "Separation of Church and State" that the liberals are so fond of quoting is only a one-way separation and only then when it will benefit them.

15 posted on 06/27/2011 12:54:42 PM PDT by paladin1_dcs (Voting for the lesser of two evils is still voting for evil.)
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To: paladin1_dcs

You may be right, I do not know much about the case either. I thought the doctor said she could resume her job but the church did not want her anymore. I would guess for money issues. What does her contract say? If it is a “called” position doesn’t the Holy Spirit decide when she should leave?


16 posted on 06/27/2011 1:09:07 PM PDT by marbren
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To: marbren

YUP.


17 posted on 06/27/2011 4:18:05 PM PDT by Quix (Times are a changin' INSURE you have believed in your heart & confessed Jesus as Lord Come NtheFlesh)
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To: marbren
I thought the doctor said she could resume her job but the church did not want her anymore.

Should the doctor or the church decide?

I would guess for money issues.

Why would you say that? Rather it appears that the school board determined that narcolepsy in a teacher is a bad thing, and if they are going to pay someone for the job, they prefer a non-narcoleptic.

If it is a “called” position doesn’t the Holy Spirit decide when she should leave?

What makes you so sure He hasn't; a disability incompatible with the profession, from nowhere?

18 posted on 06/27/2011 5:31:20 PM PDT by xone
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To: marbren

That might stink but the deeper constitutional question is whether the government has the right to define “church.”


19 posted on 06/27/2011 6:43:38 PM PDT by lastchance ("Nisi credideritis, non intelligetis" St. Augustine)
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To: marbren
Will the Supreme Court rule with the LCMS

The LCMS isn't part of this lawsuit.

20 posted on 06/27/2011 7:29:40 PM PDT by xone
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To: xone
There must be reasons why the Supreme Court wants to hear this case.

The LCMS isn't part of this lawsuit.

I think all religious institutions are very interested in the ruling on this case. It will defiantly set some precedents.

21 posted on 06/28/2011 6:06:37 AM PDT by marbren
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To: xone
Rather it appears that the school board determined that narcolepsy in a teacher is a bad thing, and if they are going to pay someone for the job, they prefer a non-narcoleptic.

I believe I read that the Doctors said with her medication her condition was manageable and she could return to work. I also wonder what her "Call" covenant contract says. I would say that whatever the written contract says should be binding.

22 posted on 06/28/2011 6:14:01 AM PDT by marbren
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To: marbren
I believe I read that the Doctors said with her medication her condition was manageable and she could return to work.

You did read that, but who should determine whether someone with a 'manageable' condition can do the job required, the employer, the doctor or the gov't?

23 posted on 06/28/2011 8:56:01 AM PDT by xone
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To: xone

What about the called teacher?


24 posted on 06/28/2011 10:26:57 AM PDT by marbren
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To: marbren
What about the called teacher?

What about her? If she can't do the job as defined, should she receive pay forever? Who decides: employer, doctor or gov't?

25 posted on 06/28/2011 10:37:16 AM PDT by xone
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To: xone
IMHO I imagine the pharisee church council filled with Dana Carvey church lady influence and gossip is in control. As it should be. That is what pharisees do, they CONTROL!
26 posted on 06/28/2011 11:15:05 AM PDT by marbren
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To: marbren

So you are saying the church should be in control of the people that work there or that an outside agent should be in control, which is it?

Re: your use of the word Pharisee as a pejorative. Pharisees were all about rules. Aren’t you? In this case work rules etc.


27 posted on 06/28/2011 11:29:43 AM PDT by xone
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To: xone

The Holy Spirit should decide. For a called minister the Holy Spirit tells them when and where to go. Heresy and immoral life are the only grounds for dismissal. Politics should not decide. This church may be heterodox.


28 posted on 06/28/2011 11:54:50 AM PDT by marbren
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To: marbren
The Holy Spirit should decide. For a called minister the Holy Spirit tells them when and where to go.

And yet, the congregation issues the call. So once a call is accepted, a called minister has tenure. And as long as he isn't immoral or heretical, he can't be removed. One can cause upheaval, can play 'politics', can be a lousy preacher, not visit the sick etc, but as long as he is moral and non-heretical, he is good to go.

This church may be heterodox.

Really quite an accusation, care to provide any proof of heterodox doctrine, or are you just throwing that out to see if it sticks?

29 posted on 06/28/2011 12:18:29 PM PDT by xone
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To: xone
as long as he is moral and non-heretical, he is good to go.

exactly.

Really quite an accusation, care to provide any proof of heterodox doctrine, or are you just throwing that out to see if it sticks?

I did say may be heterodox.

30 posted on 06/28/2011 1:09:00 PM PDT by marbren
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To: marbren
One can cause upheaval, can play 'politics', can be a lousy preacher, not visit the sick etc, but as long as he is moral and non-heretical, he is good to go.

So a pastor doesn't have to do his job, but if the congregation screws up and calls him, they should be stuck with him until he decides to leave. Another reason I am thankful you don't go to my church and that there IS recourse in the case of an unprofitable calling. You may have your Pater Noster, I've seen what they can do.

31 posted on 06/28/2011 4:13:02 PM PDT by xone
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To: lastchance; marbren
That might stink but the deeper constitutional question is whether the government has the right to define “church.”

They do as regards nontaxable organization status. Now, that is not necessarily defining what "church" is, just whether or not what they are and do allows them to be tax exempt.

32 posted on 06/28/2011 9:55:54 PM PDT by boatbums (my cat erased my tagline)
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To: boatbums

I do realize that and I should have been clearer. This case seems to be more about the government defining a religious institution’s scope of minsitry, which to me is trying to define “church”.


33 posted on 06/28/2011 10:22:16 PM PDT by lastchance ("Nisi credideritis, non intelligetis" St. Augustine)
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To: paladin1_dcs

I believe this is about whether the teacher is exempt from the ADA re: her dismissal. ADA requires that employers make reasonable accomodations to those who are disabled as defined in the act when they are requested to do so by the employee. They are to do this provided the essential nature of the job function is not compromised by the accomodation. Rasonable accomodation may be special equipment, it may be being reassigned to another post, it might be different hours. I suppose for a teacher with narcolepsy it might be to have an aide in the classroom to protect her from self injury and to wake her up.

The Church probably required a fitness for duty report and the Doctor gave them a report which said she was o.k to return to work if on medication. The employer is not obligated to agree with the report but is free to make its own decision. The ADA claim is a separate issue since having a disability that can be controlled or relieved by medication does not mean you are no longer disabled.

This teacher believes and the EEOC agrees she was discriminated against under ADA. The CHurch and those filing the Amicus Curae dispute that claiming a determination in her favor is a major government intrustion into the self determination of religious organizations.

The Holy Spirit is sitting this one out.


34 posted on 06/28/2011 10:37:17 PM PDT by lastchance ("Nisi credideritis, non intelligetis" St. Augustine)
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To: xone
So a pastor doesn't have to do his job, but if the congregation screws up and calls him, they should be stuck with him until he decides to leave.

My position is that the Holy Spirit does, and maintains, and is responsible for the call, Not weeds and pharisees and politicians and man made institutions.

BTW let's try to keep focus on this called minister teacher in Michigan.

35 posted on 06/29/2011 6:30:54 AM PDT by marbren
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To: lastchance
The Holy Spirit is sitting this one out.

IMHO, This case is going to be a big deal in the church state separation discussions. Especially the ministerial exception. Ministers today have no protection in man made worldly pharisaic religious institutions.

36 posted on 06/29/2011 6:34:39 AM PDT by marbren
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To: marbren
And there are inept pastors unfortunately due to the fall, and thankfully there are mechanisms to be rid of them. As for the teacher, in the eyes of the employer, she is incapable of fulfilling that post.

Not weeds and pharisees and politicians and man made institutions.

Which inhabit the church on earth and certainly the 'man-made' parochial schools, to ignore that fact is to be as bad as a liberal, denying the reality of fallen life on earth.

37 posted on 06/29/2011 2:11:50 PM PDT by xone
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To: Quix
Here is the LCMS case again, not sure where it stands. The parallels of my Pastor's current situation are incredible.
38 posted on 09/09/2011 11:14:10 AM PDT by marbren (I do not know but, Thank God, God knows)
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