Where does the line lie between constitutional protection of religious exceptionalism and the need to enforce state laws ensuring fair treatment of employees? Which religious employees count as “ministers” and therefore as central enough to religious activities to enable religious bodies to deal with them outside of the bounds of state laws? Stanley Fish’s recent New York Times opinion piece chronicles Hosanna-Tabor v. EEOC, a case currently before the Supreme Court. In 2005, a teacher at a school affiliated with the Lutheran Church-Missouri Synod was fired for bringing a case against her employer to court. The church argued that she had violated its theological belief in resolving disputes informally rather than through the court system. While most citizens have a right to sue employers in court, the church argued that because of the teacher’s central role in carrying out the church’s doctrines, she should be considered a “minister,” making the church’s ability to punish her breaching of its rules fall under the “ministerial exception” and the free exercise clause. But is a teacher the same thing as a minister? Fish writes:

If the ministerial exemption is to have any bite, there must be a way of distinguishing employees central to a religious association’s core activities from employees who play only a supporting role (the example always given is janitors). But if the line marking the distinction is drawn by the state, the state is setting itself up as the arbiter of ecclesiastical organization and thus falling afoul of the establishment clause. And if the line is drawn by the religious association, the religious association is being granted the power to deprive as many of its employees as it likes of the constitutional protections supposedly afforded to every citizen.

Perhaps even more difficult than the question of who counts as a minister (and therefore which practices and duties are most central to religion) is the question of which doctrines are centrally religious and therefore appropriate points of regulation for religious institutions. Is the Lutheran Church-Missouri Synod’s preference for resolving disputes informally really central to Lutheranism, such that if even a minister violates the rule, it is fair cause for termination of employment? Fish writes:

A resolution of the Hosanna-Tabor case, Justice Samuel Alito observes, “depends on how central a teaching of Lutheranism” the injunction against “suing in a civil tribunal” really is. Before we can decide (he continues) whether the church’s asserted reason for terminating Perich is a pretext, we must determine whether this is in fact “a central tenet of Lutheranism.” And if we decide that it isn’t, wouldn’t we be “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?” And what authorizes the Court to do that in opposition to what the churches themselves say?

Read Fish’s piece in full here and Winnifred Fallers Sullivan’s recent TIF post on Hosanna-Tabor here. Also look out for upcoming TIF essays on this case.