Lawsuits Among Believers and the LCMS Hosanna-Tabor Decision Part 4 / Conclusion – What Does This Mean?

To listen to various US church officials and allied groups that were fighting the Hosanna-Tabor suit, the Hosanna-Tabor decision was a great victory for religious freedom in that the churches will be able to decide who is and isn’t their minister.  My response is that if the church had kept its word, treated Cheryl Perich in a Christian manner, acted in accordance with its own handbook – the suit wouldn’t have happened and the question wouldn’t have needed to be asked.

Other sources talk about the benefits of the Hosanna-Tabor decision, and I have no doubt that there are many.

What concerns me is that this decision puts the church further outside of the rule of law and even common civility. As a result this decision will result in more people being mistreated and abused by the church. Given that we serve an omniscient and omnipotent God who will not be mocked (Gal 6:7) it would serve the church well to heed this warning – with great freedom comes a great responsibility. Abuse this freedom at your own peril.

How has the church abused its freedom? Right after I finished Part 3 of this series I found the paper “The Sins of Hosanna-Tabor” (Note 1) which documents why churches really really need to have an effective means for adjudicating cases within its membership, what can happen when it doesn’t, and why anyone that works for a religiously-based institution under US law should be profoundly concerned about the implications of the (lack of) intersection of the US legal system and the behavior of religiously-based institutions.

The opening paragraph states:

This essay explains the flaws in as a profound misinterpretation of the First Amendment. The Court mistakenly protected religious institutions’ religious freedom at the expense of their religious employees. Religious employees have been subjected to 

  • disabilities discrimination,
  • sexual harassment,
  • unequal pay,
  • hostile work environments,
  • age discrimination,
  • pregnancy discrimination, 
  • gender discrimination,
  • race discrimination,
  • assault,
  • retaliation, 
  • national origin discrimination,
  • tortious interference with contract, 
  • blacklisting,
  • intentional and negligent infliction of emotional distress and
  • breach of contract.

Instead of having a day in court to win or lose their cases, they have been barred from litigation by the ministerial exception, a rule that always grants victory to the employer.

What the author is saying lines up with Romans 3:23 – for all have sinned and fall short of the glory of God. While Hosanna-Tabor and other freedom of religion laws provide room for people of faith to organize and live out their beliefs, this is not without a profound cost – namely that one group of sinners (administrators and other religious authorities) can do almost anything they want to another group of sinners (individual church workers) without fear of correction or consequence.

All the religious institution has to do is convince the courts that the dispute involves a theological question between them and a ‘minister’ in their employ. Hosanna-Tabor started out as “run-of-the-mill run the disabled person out of a job” constructive dismissal case. That they managed to pivot to a case of “she filed a lawsuit which invalidates her spiritual witness” after threatening to fire her

The “Sins” paper lists some specific examples of what’s already happened before Hosanna-Tabor:

  • Michigan elementary school teacher Madeline Weishuhn was fired by a Catholic school principal for reporting possible sexual abuse of a student’s friend to state authorities. Even though Weishuhn was a required reporter of abuse under state law, Michigan state courts dismissed her whistleblowers lawsuit under the ministerial exception. 
  • Catholic school principal Yolanda Minagorri was fired after she complained to the Archdiocese of Miami that her supervisor, Father Jesus Saldana, assaulted and battered her.
  • Organist William Moersen was fired after he reported his own sex abuse to church officials.
  • Father John Conley was punished and defamed after reporting another priest’s sexual misconduct.
  • Chapman University Chaplain Shaunie Schmoll had her work hours cut in half after she reported the sexual harassment of students by two faculty members.
  • Gannon University Chaplain Lynette Petruska’s job responsibilities were restructured after she reported the university president’s sexual harassment to the local bishop and the university provost.
  • Vineyard Community Church workers Sandi Horine and Greg Williams were fired after they consulted with an attorney about the possibility that their church was violating employment laws against sex discrimination.
  • Rev. Julius Baker was fired after he reported his suspicions that African Methodist Episcopal Church bishops had converted church funds for their own personal use
    and failed to pay federal income tax. 
  • Christian Methodist Episcopal Church Reverend Lee Otis Gellington helped his co-worker Veronica Little, who suffered sexual advances from her supervisor, to draft a complaint to the bishop. Soon after he was asked to transfer to a church over 800 miles away, where he would receive reduced pay.

With the passage of Hosanna-Tabor, this behavior has been further protected by the force of law. Is the prospect of more of the same really something we should be celebrating?

One item of sad amusement is how “the church” has managed “to have my cake and eat it too”:

One irony and injustice in the ministerial rule is that women employees of denominations that do not ordain women suddenly became ministers at the moment they filed a lawsuit. Although some Roman Catholic, Muslim and Orthodox Jewish women may not become priests, imams, or rabbis and perform their jobs with full understanding that they cannot be ministers, the courts and churches confer ministerial status upon them just long enough to keep their lawsuits out of court.

The “Sins” paper also makes the following powerful observation:

On another account of the Constitution, the Framers, who knew and understood the history of religious power in Europe from the Inquisition to the Wars of Religion, developed a constitution acknowledging “that every individual and every institution holding power was likely to abuse that power and therefore must be checked.” Thus an alternative lesson of English and American history is that religious institutions and clergy should be subject to the secular courts. Like all other powerful institutions, religions had to be subject to the rule of law. The Religion Clauses did just that. The same James Madison quoted on behalf of the ministerial exception in Hosanna-Tabor feared the power of both state and church and warned against “the potential abuse of ecclesiastical corporate power.” Even Protestant clergy of the revolutionary era supported the First Amendment because they understood that “[p]ower, civil and ecclesiastical, has to be deflated, diffused, and properly related in order to keep it from becoming absolute, arbitrary and abused.” Thus an alternative lesson of American history is that the power of religious institutions needs to be limited as much as any other institution’s power.

“The American Revolution broke many of the intimate ties that had traditionally linked religion and government, . . . , and turned religion into a voluntary affair, a matter of individual free choice.” Americans of that era “believed that the individual, not the state or the church, should decide matters of faith.”

If there is one huge take-away from the “Hosanna-Tabor” series its this – that power corrupts and uncurbed power will be abused by its holder regardless of whether that institution is governmental, commercial, or religious.

If this behavior becomes visible enough and sufficient numbers of people that are legally classified as “ministers” get fed up with how “the church” treats them, we could see the advent of what industrial-era lebor did – namely to organize into unions. Church officials only have power so long as they have employees under them, money to fund their activities, the support of their church, and employees willing to put up with their behavior. Take away enough of any of these things and they are nothing.

If the church as an institution doesn’t change its ways, people thinking of becoming a church worker might avoid working in religious institutions altogether and find some other way to serve their maker. After all if “ministers” of a church find out they’re targeted by both the people they serve and the church they work for then the only winning move may be not to play.

This series discussed a legal case in the United States. In Canada the law is a bit different – the courts have been asked to rule on church matters and they have reversed decisions made by the church. This will be the subject of a future article.

Update 2018-03-25: Almost immediately after the Hosanna-Tabor ruling was handed down Pastor Richard P. Hillenbrand’s wrongful dismissal lawsuit against Christ Lutheran Church of Birch Run was summarily dismissed even though the LCMS dispute resolution panel ruled he was wrongfully removed and was due damages and back compensation.

Note 1: Larry & Joanne Doherty Chair in Legal Ethics, University of Houston Law
Center, The author filed an amicus brief for Cheryl Perich in the Supreme Court on behalf of 63 law and religion professors.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Website Powered by

Up ↑

%d bloggers like this: