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Detroit Metro Times: Court and Cross Michigan case puts church v. state before the U.S. Supreme Court

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Additional coverage of Hosanna Tabor, our latest groundbreaking Supreme Court case.

By Sandra Svoboda

Published: July 13, 2011

As a teacher at a small Lutheran elementary school in suburban Detroit, Cheryl Perich had no intention of going to the nation’s high court to be part of a national church-state separation debate.

When she wanted her job back after a six-month disability leave and school officials refused, she never dreamed her dispute could be used to clarify whether hundreds of thousands of employees at parochial schools and other church-affiliated institutions deserve federal civil rights protections.

In 2005, Perich, who taught mostly secular subjects as well as some religious studies, simply wanted to return to the classroom after her neurologist determined her narcolepsy was under control with medication. She’d been on disability leave for what was first suspected as a heart problem, and after about six months, Perich’s doctor cleared her to return to work.

But the principal and the board at Hosanna-Tabor Evangelical Lutheran Church and School in Redford didn’t believe she was ready, so they refused to reinstate her. Perich, a teacher there for five years without incident, threatened “legal action” to get her job back. She was fired.

School officials say she had violated a tenet of the Lutheran faith enacted in school policy — that school employees could only resolve disputes through internal church procedures and hearings.

“Like many Christian denominations, the [Lutheran Church-Missouri] Synod has long taught that Christians should resolve religious disputes within the church rather than sue each other in civil courts,” the Hosanna-Tabor attorneys wrote in a U.S. Supreme Court filing.

If it had been a public school, Perich’s attorney says, the case would have been simple: She had a clear showing of discrimination under the Americans with Disabilities Act and a well-documented retaliatory firing, both illegal and worthy of damages under federal law. A court could have ordered the school to reinstate her and pay damages and attorneys’ fees.

But Perich worked for a church school — an entity that enjoys First Amendment protection from government interference in matters related to establishing beliefs and the free exercise of those beliefs.

The church argues in its court filings that the school officials were executing religiously based employee policies, based on Lutheran doctrine, giving them constitutional protection from Perich’s discrimination claim. The court should throw out Perich’s lawsuit claiming discriminatory firing, the church and its attorneys say.

“This teaching is based on 1 Corinthians 6:1-11 and is further developed in Lutheran interpretations of that Scripture,” Hosanna-Tabor wrote in its Supreme Court brief.

That Bible passage reads, in part, “If any of you has a dispute with another, do you dare to take it before the ungodly for judgment instead of before the Lord’s people?”

The two lower federal courts that have considered the case have split. A U.S. District Court judge in Detroit agreed with the school, but when Perich appealed, the Sixth Circuit Court of Appeals unanimously reversed the earlier decision and sided with her.

Now the case’s central question about how far constitutional protection for religious freedoms extends into employer-employee matters at religious institutions could be answered by the U.S. Supreme Court.

The high court decided in March to consider the case, leaving legal observers wondering how far they’ll go. They could narrowly frame the debate, limiting it to just parochial school teachers. That would still have enormous influence. According to the National Center for Education Statistics, the equivalent of about 314,000 full-time teachers work at the roughly 23,000 parochial schools in the United States.

The Supreme Court also could expand the question to determine a framework for resolving such civil rights vs. religious freedom debates when host of religious institutions act as employers.

Two of the closely related questions Perich’s case raises are:

• Does the U.S. Constitution’s prohibition from governmental interference in the establishment and free exercise of religion extend to a religious organization’s authority as an employer?

• To what extent, if at all, should a religious institution be exempt from federal laws such as the Civil Rights Act and the American with Disabilities Act when operating the “business” of a school, a hospital, a university or a even church-affiliated resale store?

“The court is going to have to use this case to define the boundaries,” says Douglas Laycock, a University of Virginia law professor who is representing the suburban Detroit church in front of the Supreme Court. A former University of Michigan faculty member, he has twice argued religious liberties cases before the U.S. Supreme Court and testified in Congress several times. The Becket Fund for Religious Liberty, a nonprofit legal and education institute supporting religious expression, is also representing the church.

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