September 30, 2011 — University of Virginia law professor Douglas Laycock will argue before the U.S. Supreme Court on Wednesday that the justices should retain limits on the ability of employees of religious organizations to sue for employment discrimination.

Laycock, a leading expert on the law of religious liberty, is the counsel of record for a religious church and school in Michigan in the case Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

He said if justices strike down the First Amendment doctrine of the "ministerial exception" – which bars most employment-related lawsuits brought against religious organizations by employees performing important religious functions – judges would have to determine whether ministers were performing their religious duties effectively.

"To evaluate these discrimination claims, courts would have to decide whether this person was discharged for being a bad minister or not," he said. "That is a decision, we think, that is committed to religious bodies and is beyond the authority of government and also just beyond its factual ability to evaluate it."

In the case, the church dismissed a teacher, Cheryl Perich, who had been on disability leave for narcolepsy, citing her for insubordination and disruptive conduct after she attempted to report for work against the school's wishes. Perich subsequently sued the school under the Americans with Disabilities Act, alleging discrimination and retaliation.

The 6th U.S. Circuit Court of Appeals ruled that the school's First Amendment rights as a religious organization did not shield it from the lawsuit, as the teacher's job dealt primarily with secular instruction.

Yet the teacher also performed religious functions, such as teaching religion classes and leading worship service and prayer. She also was required to integrate faith into secular subjects, was the church's primary instrument for communicating the church's teachings to her students and held ecclesiastical office as a commissioned minister in the Lutheran Church, according to the brief for the petitioner filed with the Supreme Court.

Laycock was brought onto the case by The Becket Fund for Religious Liberty in the summer of 2010.

"What's now at issue is whether ministers can sue their churches for employment discrimination, just as though they were an ordinary employee in the secular economy," Laycock said. "At first, the issue was whether this plaintiff counts as a minister. But both the government and the private plaintiff have taken the position that being a minister doesn't make any difference. So priests and rabbis, bishops and pastors of congregations should all be able to sue their churches, too, in the government's view."

The government argues that employees of religious organizations have the right to sue under the Americans with Disabilities Act.

"The ADA, by its plain terms, forbids employers – including religious employers like petitioner – from retaliating against their employees for complaining about or reporting discrimination," according to the federal government's brief. "The history of the ADA confirms that Congress made a conscious choice to include religious employers within its scope. Although it provided certain defenses for religion-based discrimination in employment, Congress has provided no comparable defense for a religious entity that retaliates against its employees for invoking their rights under the statute."

If the government's view prevails, Laycock said, it will lead to the filing of the types of lawsuits that have traditionally been thrown out.

"We have a very long tradition that these disputes are worked out in the church," he said. "Occasionally some churches behave badly and take advantage of the fact that they can't be sued. But most of the major denominations have dispute resolution processes that actually work. If you look at some of the cases that have actually been filed and dismissed because of the ministerial exception, I think they're cases that most people would agree don't belong in the civil court system."

In one such case that was dismissed, he said, a Catholic priest in New York was passed over for a promotion and subsequently dismissed by his bishop. The priest sued, alleging racial discrimination.

In another case, he said, a nun who taught canon law at Catholic University sued after she failed to get tenure.

In yet another, a rabbi sued after she was dismissed by her temple following complaints by her congregation. She tried to sue, alleging sex discrimination, Laycock said.

"For the most part, the priests, nuns and the rabbis aren't filing these cases because they know they're barred," he said. "If the government wins, that changes. Then they can sue just like anybody else. And you're going to see a lot more cases like the Catholic priest in New York and the rabbi and the nun who teaches canon law."

The case will mark Laycock's third time arguing before the Supreme Court and his fourth representing a party with a case before the court. His last appearance was in 1997.

"It's been a long time," he said. "I hope it's like riding a bicycle."