WASHINGTON — Few issues test Supreme Court justices like trying to find the proper boundary between church and state. And that difficulty was again on display Wednesday as they considered whether a former teacher at a church school could pursue her claim that she was fired after becoming ill.
Only Justice Antonin Scalia seemed completely sure of the answer, repeatedly taking the position that a church’s personnel decisions about those who serve in ministerial positions are off limits to government inquiry.
“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 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?”
Justice Anthony Kennedy was concerned that Perich would not be able to pursue her claim, even before the church had proved that she fell under the ministerial exception.
Justice Samuel Alito, on the other hand, questioned how the government would enforce discrimination laws. He pressed Kruger to explain why she said the government could never use gender discrimination laws to challenge the Catholic Church’s policy on priests.
“When you say that, are you not implicitly making a judgment about the relative importance of the Catholic doctrine that only males can be ordained as priests and the Lutheran doctrine that a Lutheran should not sue the church in civil courts?” he asked.
The case is Hosanna-Tabor Church v. EEOC.
When Congress provided copyright protection to millions of works by foreign artists that once were in the public domain, it took away “core public speech rights” from the American public, a lawyer for those challenging the action told the court Wednesday.
Anthony Falzone, representing conductors, academics, film historians and others, said the action violated the First Amendment and went beyond Congress’s power to extend copyrights.
He found a quick adversary in Ginsburg, who said Congress was only correcting an inequality and extending the same kind of copyright protection to foreign artists that Americans had received.
She compared two composers: “Congress says: ‘No, we think (Dmitri) Shostakovich should be treated just like (Aaron) Copland. Yes, we took care of our own when we weren’t part of the world community, but now we are.’ ”
Congress said that applying the copyright to such works was necessary to comply with treaties and foreign trade agreements and that the show of cooperation will mean copyright protection for the work of American artists overseas.
Solicitor General Donald Verrilli told the court that the decision did not unduly harm the First Amendment. But Chief Justice John Roberts wondered if there was not a problem with Congress extending copyright protection to works that for years had been in the public domain.
“There is something at least at an intuitive level appealing about Mr. Falzone’s First Amendment argument,” Robert said. “One day I can perform Shostakovich; Congress does something, the next day I can’t. Doesn’t that present a serious First Amendment problem?”
The case is Golan v. Holder.