It was bound to happen. The fiction that teachers are “Commissioned Ministers”, executing a ministerial and religious role (kingdom of the right) instead of a secular (kingdom of the left) has been found out by the sixth circuit court, and may even be adjudicated by the Supremes themselves. What happened?
A congregation “fired” (word used by the court) a so-“called teacher” who then filed suit under the ADA retaliation law. (Actually the Equal Opportunity Employment Commission filed suit, but the teacher joined in.) The Court of appeals ruled that teacher was not specifically a religious employee, because:
1) Her duties before being colloquized and after did not change.
2) Most of the instruction was not specifically religious – she could only remember two occasions in five years where religious instruction was given in ‘secular’ topics
3) Even the contract (including one non-Lutheran!) teachers led chapel, making it not a specifically ministerial duty.
Read the whole thing yourself, if you wish. Volokh talks about it here. You can find the Appeals Court ruling here. A law firm that seems to be unconnected to the case has a note about it here. Which I mention because of the following statement from the concurring opinion by Judge White:
Tipping the scale against the ministerial exception in this case is that, as the majority points out, there is evidence here that the school itself did not envision its teachers as religious leaders, or as occupying ‘ministerial’ roles. Hosanna-Tabor’s teachers are not required to be called or even Lutheran to teach or to lead daily religious activities. The fact that the duties of the contract teachers are the same as the duties of the called teachers is telling.
Indeed it is. There are other disturbing things about this, including, but not limited to the following*
1. That the congregation simply assumed that a called worker would resign when asked. That’s why they are called, so you can’t do that.
2. That the congregation had non-Lutheran’s leading chapel!!!
3. That so little religious content was included in the regular course of instruction.
4. That the mere threat of someone asserting their legal rights under the law in the face of unjust termination was considered by anyone “insubordination and disruptive”.
5. That the congregation used this as the basis to “rescind the call”??? Let’s hope that the court simply erred in terminology. You can’t do that (More under #6). Assuming they declared her unfit, what was the specific charge? Pointing out that the law protects the rights of church workers from unjust treatment? The Synod(inc.) is not above the law. We “INC.” our synod and the congregations to enjoy certain legal benefits that the government gives to “INCs”. We can not then turn around and say, “We aren’t subject to any of the laws that would impede our ability to do whatever the heck we please” when we find it perfectly acceptable to be subject to the ones that benefit us. Districts and congregations also “INC” themselves for the same reasons. As an “INC”, you are then subject to the rules, and must play by them. That means either obeying the laws to which we are subject, or expecting people to sue us.
6. You can not rescind a call. You can not fire a called church worker. You can remove them for cause. There was no cause here. Let’s review. 1) False Teaching? Nope. 2) Conduct Unbecoming? They didn’t even claim that in the court filing. They simply said they were religious, and so didn’t need to follow the law. 3) Inability or unwillingness to carry out the duties? According to her doctor, no. So what cause had they?
Quite frankly, they should be sued. Because they weren’t actually providing a Lutheran education. They were using the call process to save money on salary, not because they actually believed that these people were ministering to children. They were allowing chapel to be led by those who are scripturally ineligible to do so.
Oh yeah, and they broke the law by firing someone.
Now, the upside to this is that the government doesn’t communicate well with itself. Because if it did, the IRS might find out that we have, for fifty years, been treating teachers like the ministers they aren’t solely for tax reasons.** And if they find that out, they might decide they want their money. And that would be bad.
*These are from the summary, which consists of the judicially determined facts in the case – either those not in dispute or those disputed, by which have received a judicial determination as to which version of facts are considered true by the court.
**Don’t believe me? Guess who came up with the term “Commissioned Minister”? It’s an IRS category. You will search in vain through all the writings of the church through all of history, until the exact moment that the IRS came up with the word. All of a sudden, it is a cherished Lutheran Doctrine.