The U.S. Supreme Court ruled unanimously last week that some employees of religious organizations — those whose work is significantly religious in nature — are not protected by laws that prohibit discrimination in employment.

Rather, the court ruled, it is the religious organizations that are protected from legal inquiry into whether they observed or violated discrimination laws with respect to these kinds of employees.

It was the first time the court had considered the concept of a "ministerial exception." This is the idea that the freedom of religion clauses of the First Amendment may exempt religious organizations from laws that ban discrimination based on race, sex, national origin, age and disability and that forbid discriminatory pay scales, sexual harassment in the workplace and retaliation against employees who make such claims.

 

The court's opinion, written by Chief Justice John G. Roberts Jr., affirmed the legal existence of the ministerial exception. Further, the opinion applied that exception to Cheryl Perich, a teacher who became a commissioned minister while working at the Redford, Mich., Hosanna-Tabor Evangelical Lutheran Church and School, a member congregation of the Kirkwood-based Lutheran Church-Missouri Synod. And because the ruling applied to Ms. Perich, the discrimination laws did not apply to Hosanna-Tabor.

So it didn't matter whether the church discriminated against Ms. Perich on the basis of her medical disability, as she claimed. It didn't even matter if the religious reason the church gave for firing her merely was a pretext for discrimination. Under last week's ruling, when it comes to employment discrimination, the secular courts have no role to play in disputes between religious organizations and their ministerial employees.

But while the court was clear about that, it was far too ambiguous on the key point of how to determine which employees are ministerial.

 

Ms. Perich spent 45 minutes per day fulfilling religious duties, but Justice Roberts wrote that time could not be the only basis for determining her status. Would it have made a difference if it had been 15 minutes per day? How about five?

What about employees at religiously affiliated homeless shelters, thrift stores and food pantries? Are they ministering to the poor? If so, may they be discriminated against? What about office and security workers or the maintenance staff at religious schools? Are they not obliged to model through their conduct the values and mission of the church, synagogue, mosque or meeting house?

Chief Justice Roberts' opinion clearly indicated that courts can decide if a given employee is covered by the ministerial exception. But a concurring opinion by Justice Samuel A. Alito Jr. and joined by Justice Elena Kagan said, "The Constitution leaves it to the collective conscience of each religious group to determine for itself who is qualified to serve as a teacher or messenger of its faith."

Justice Clarence Thomas went even further in a separate concurring opinion, writing that courts should be required to accept at face value a religious group's claim as to which employees are ministerial.

 

America has a compelling interest in workplace fairness. Discrimination against man or woman, old or young, minority or majority, able-bodied or disabled, immigrant or native-born is no fantasy. We hold with the chief justice: Before a person is stripped of protection from mistreatment, the secular courts must have the authority to judge the legitimacy of a claim to ministerial exception.