The last sentence of the Court’s opinion in Hosanna-Tabor announces the dogma that binds the majority opinion. Affirming for the first time the constitutional status of the ministerial exception, the Chief Justice declares that “(t)he church must be free to choose those who will guide it on its way.” Not “persons” must be free to choose their own ministers, but “the church” must be free. What is “the church?”

Secular law lost unanimously in the Supreme Court of the United States last week. The Americans with Disabilities Act (ADA) is a federal antidiscrimination statute that bars discrimination against employees on the basis of a disability. The ADA also contains an antiretaliation provision that prohibits employers from retaliating against employees who file charges under the statute. The statute itself does not exempt religious employers from liability. Nonetheless, the Court dismissed schoolteacher Cheryl Perich’s ADA retaliation lawsuit against Hosanna-Tabor Evangelical Lutheran Church and School on the grounds that Perich was a minister.

From its beginnings as an assemblage of mid-nineteenth century immigrants from Germany, formally organized in 1847, the LCMS has affirmed that both pastors and those teachers who are formally certified for service in the church’s schools may be “called” as ministers of the Gospel. The entanglement of the LCMS’s understanding of minister with governmental definitions first became a serious matter at the outset of the Second World War, when Synodical officials had to exert considerable effort to have called teachers granted ministerial deferments from the draft.

One recurring justification for the ministerial exception has been the “problem” of women priests. The specter of the Roman Catholic Church being forced to ordain women priests has repeatedly haunted discussions of the ministerial exception. Catholic women priests are wrongly used as a justification for the exception. It was unfortunate that the women priests issue became part of the oral argument in Hosanna-Tabor, as it distracts attention from the more important issues at stake in the exception.

Last week, in the first week of its October 2011 term, the U.S. Supreme Court heard argument in a suit brought by the Equal Employment Opportunity Commission charging the local branch of the Missouri Synod Lutheran Church with illegal retaliatory firing of a Michigan parochial schoolteacher under the 1990 Americans with Disabilities Act. The ADA mandates an end to discrimination against persons with disabilities across a wide range of contexts and is considered a high-water mark of American civil rights legislation. The Church, supported by a wide array of other interested religious organizations, claims immunity from such legislation.