Firing lines

WASHINGTON-Television is rolling out its fall lineups-and the Supreme Court kicks off its next season Oct. 3, even if it isn't broadcast anywhere. Among all of the cases on the docket, Christian churches and schools are giving their full attention to a religious freedom case, Hosanna-Tabor v. Equal Employment Opportunity Commission concerning whether a church-based school has freedom from federal oversight in hiring and firing decisions.

"Critics sometimes complain that the court's religion-related decisions bog down in trivia-How close are the reindeer and snowmen to the Baby Jesus in the holiday display?" wrote Notre Dame law professor Richard Garnett in USA Today. "But this case ... is about a big idea, the 'separation of church and state,' that really matters."

The religious freedom principle behind the case is crucial, but the circumstances of the case complicate the matter, and religious freedom advocates acknowledge that the teacher suing the school in question may win in the court of public opinion. Cheryl Perich was a teacher at the Lutheran Church-run school Hosanna-Tabor, based in eastern Michigan, when doctors diagnosed her with narcolepsy and she missed work for several months. The school, its small staff stretched, hired a replacement teacher for the spring semester. Perich wanted to return to her job during the spring, but the school noted that it had hired a replacement for the semester; the school also wasn't convinced she was physically ready to return to work. She threatened to sue if she wasn't reinstated.

The school fired her, saying she had violated church teachings by immediately turning to legal action instead of going through the church's own process for dealing with such disputes. Perich filed a lawsuit with the EEOC, alleging that the firing was retaliatory for her narcolepsy. That question of retaliatory firing could muddy the broader issue of whether religious schools have autonomy in personnel decisions. The 6th U.S. Circuit Court of Appeals sided with Perich, saying she should not fall under the "ministerial exception," as a church employee, so she could sue. The court drew out two columns titled "secular" and "religious" and tallied how many minutes of the day Perich spent on each. The court added the totals and concluded that she spent more minutes on secular education than religious, and so she did not fall under the "ministerial exception" for church employees.

The lawyers for the school blasted the circuit court's "mechanistic" approach to Christian education. "In accordance with Lutheran teaching, she was expected to 'integrate faith into all subjects,'" they wrote in their merit brief for the Supreme Court. "She did so, for example, by teaching a student about the Lutheran doctrine of justification by faith in connection with an essay in English, answering questions about God in social studies, commenting on God as Creator in science, and discussing theological questions during a parent-teacher conference." The ministerial exception, a decades-old rule the courts created, applies to employees who are "important to the spiritual and pastoral mission of the church," and circuit courts disagree about what that means. "The courts of appeals ... agree that [the ministerial exception] extends beyond pastors, priests, and rabbis, but not as far as janitors or secretaries," the lawyers for the school wrote in their merit brief. "The question is where to draw the line."

But if the court rules against the school, that doesn't mean religious organizations will lose all protections on hiring matters. Stanley Carlson-Thies, the head of the Institutional Religious Freedom Alliance, explained in an analysis of the case that most religious organizations are protected by the "religious exemption" in Title VII of the Civil Rights Act of 1964. "This exemption was created by Congress, not the courts, and it applies to every single job position in a religious organization, whether the position is 'ministerial' or not," Carlson-Thies wrote. However, he adds, the "religious exemption" only protects organizations' personnel decisions based on religion. In this case, the Lutheran school must prove that it fired the teacher for religious reasons-that she had violated church rules, which will be difficult before a court that is sensitive to claims of retaliatory firing.

In Federal Communications Commission v. Fox Television Stations, Inc., Fox is arguing that the FCC's standards about indecency on television are unconstitutionally vague, placing a burden on free speech. The government's standards prohibit indecent material on public broadcasting channels between the hours of 6 a.m. and 10 p.m., to protect children who may be watching. The Parents Television Council filed an amicus brief on the side of the FCC. "Despite cries of a 'chilling effect' and 'censorship' from the industry and their agents, the FCC's broadcast decency enforcement regime does not affect whether the TV networks can broadcast indecent material. It only affects when they can do so," said PTC's President Tim Winter.

Miguel Estrada, a former circuit court nominee of President George W. Bush, is the chief counsel for NBC Universal, which joined Fox in the case. He described the arguments on the case before the 2nd Circuit: The circuit judges were "cursing a blue streak" in the course of debating the issue, he said. C-SPAN Radio was broadcasting the proceedings, and the counsel for Fox asked the government's counsel, "Are you going to go after C-SPAN?" to make the point that the government's decision to penalize broadcasters is subjective and context-based.

Over the next several months the court will agree to hear dozens more cases for this term. Waiting in the wings are the myriad challenges to last year's healthcare overhaul, cases the Supreme Court could decide to hear this term. But doubts are growing that the court will agree to hear any of those cases this session. "It is very clear that the strategy of the administration is to do cartwheels to keep the case out of the Supreme Court before the 2012 election," said Estrada at a Sept. 15 discussion of the next term hosted by the American Constitution Society. Estrada said the administration was filing for every possible extension to delay the case.

Seated beside Estrada was Neal Katyal, who recently served in the Obama administration as acting solicitor general. "The notion that the administration is dragging its heels-I'm hard pressed to think of any cases where the administration is moving more quickly in the circuit courts than in these healthcare cases," Katyal said.

The court is more likely to hear challenges to Arizona's immigration law this term, focusing on the issue of whether the law pre-empts federal law. Since Arizona passed its controversial law, several states have passed similar measures, so the court's decision could have broad implications. The court may also agree to hear a defense of California's Proposition 8, a voter-passed law that defines marriage as between one man and one woman, which a judge struck down last year. The California Supreme Court appears ready to rule that California voters have the right to defend the law in court themselves, since the governor and attorney general had refused to defend the law.

Listen to Emily Belz discuss the upcoming Supreme Court term on The World and Everything in It.