Hosanna-Tabor v. Perich

Dahlia Lithwick has this on the Hosanna-Tabor case that’s before the Supreme Court right now. The essence of the case—to put it somewhat critically—is whether a religious organization can exempt itself from the employment laws by designating employees as ministers and thus placing them in the ministerial exception to those laws. (That’s the well-established and perfectly sensible rule that courts can’t interfere in hire-and-fire decisions relating to clerical personnel, for the obvious reason that that would place government in the position of telling a religious body—at the request of a third party—who its ministers shall be, something that violates the First Amendment more plainly than just about anything else imaginable.) Take a few minutes and read Dahlia’s piece before continuing; she’ll get you up to speed.

Back? Good. What perplexed me as I read the briefs in this case is that because of limits on what courts may properly do, the case will be decided on murky grounds: Haggling over who is or isn't a minister and who gets to decide. As Dahlia recounts—vividly as ever—the court is baffled. For the record, the answer can only be that the church gets to decide who is a minister—otherwise government can simply give an extremely restrictive interpretation of “minister” and get into the afore-mentioned business of reappointing clerics—but that's not the point I want to focus on. The only reason we're stuck trying to parse the ministerial exception question is because we instinctively know that Hosanna-Tabor did nothing wrong and broadly construing the ministerial exception is the only way we can let them off the hook. And it shouldn't be.

And this is where we arrive at a perspective problem. It sometimes seems to me that liberals are apt to mistakenly think that the purpose of employers is to provide a service to their employees rather than the other way around: Labor is a commodity obtained by people and entities for the purpose of carrying out whatever activity the person or entity does. (That, by the way, is why trade unions are a sub rosa antitrust problem: They are a cartelization of the labor market.) The plaintiff was hired to do a job; she was no longer able to do it. How, then, is it rational to say that a small school, which exists to teach, must subsidize a nominal teacher and hire someone to actually teach her class, despite lacking any reasonable ability to do so?

Let's review: The plaintiff, Perich, was a teacher at a small parochial Lutheran school . She was diagnosed with narcolepsy, and (as the petitioner's brief puts it) "[b]ecause of the school’s small staff and limited budget, Perich’s absence created immediate difficulties. For a full semester, the school attempted to preserve a job for Perich by combining three grades into a single classroom. But parents"—quite reasonably!—"complained about that arrangement. Finally, in January 2005, seven months after Perich fell ill, the school hired a replacement for the spring semester." Perich resisted, the church removed her, and litigation ensued. Was that illegal? I don't know. The court may tell us in this case. But it certainly wasn't wrong. To see why, try an exercise in empathy: Don't put yourself into the plaintiff's shoes (the tool used by a sympathetic media to pick your side for you), but those of the parents. And imagine that the world is inside out: Imagine that public schools have been captured by conservatives, and they’re inculcating Christian conservative values. You feel that this is dead wrong, so you send your kid to a small independent liberal school that teaches the values you think are right with a much better kid to teacher ratio. You’re paying real money for this, because you think it’s best for your child. And the school says one day “you know, we’re going to combine two classes, because one of our teachers is on long-term medical leave. The alternative is that we’ll have to increase your tuition to cover both the nominal teacher and the substitute.” Would you honestly accept any of that? I doubt it. You’d ask why the school doesn’t just fire the teacher who isn’t doing her job, because the first concern of any parent is their child’s education; the school’s function is to accomplish that, not to transfer money from anxious parents to people who aren’t working there. Or imagine that you are a small environmental lobbying company doing important work, and your company administrative assistant gets sick! You were barely keeping your head above water before—these are tough economic times—and now you have to pay her and pay someone else to do her job?

So the problem is that the ADA treats Hosanna-Tabor the same way it treats GM, and that’s stupid. (Stipulating, for the time being, that such laws are rational when applied to GM.) Not every entity that employs is big enough to indulge the Periches of the world, no matter how much it might like to, no matter how little intent they had to discriminate. (The idea that this case involves invidious discrimination is just laughable, and quite frankly, the idea that it involves discrimination at all—cf. Black's 8th at 500—is puzzling, which makes this case even more absurd: We're fighting over the standards of summary judgment in a case that shouldn't even exist!) Oh, yes ADA excludes truly tiny entities from its reach (see 42 U.S.C. § 12111(5)(A) ("The term 'employer' means a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year")), but where do you draw the line? How big must a company be before we can say that an employee is fungible?

No abstract theory can supply an adequate answer to that. I suggest that the answer is to refuse to play the quantitative game (or to game the ministerial exception), and instead, recognizing that what the law appears to ask entities like Hosanna-Tabor to do is insane, declare that laws like ADA only apply to the extent that they don’t impose an unreasonable burden on employers. We're here today talking about this case only because courts shouldn't create the kind of exception I've mentioned and Congress won't.

It will no doubt be answered by the left that this would make the protections of the law turn on the size of the company you work for, and that's true, but I don't find that persuasive since the choice of employer is in the discretion of private parties in the market, not a single governmental decisionmaker. And it will no doubt be answered by a few on the right that it confers too much discretion on judges, but I don’t find that persuasive either since case-by-case questions demand case-by-case answers and only judges are situated to do that.