When is teaching inherently religious?

Is the teaching of Hebrew inherently religious? That is the key question in a discrimination case currently before the highest state court in Massachusetts. On May 8, the Supreme Judicial Court heard arguments in Temple Emanuel of Newton v. MCAD, which started in August 2008 when a teacher filed a charge of age-based discrimination (hostile work environment and discriminatory discharge) with the Massachusetts Commission Against Discrimination (MCAD).

In most cases, after the MCAD has served the complaint the respondent (defendant) submits a document called a position statement, after which the complainant (plaintiff) offers a rebuttal. Then, when the papers from both sides are in, the MCAD holds an investigative conference. But this case is different.

After receiving the complaint, the respondent, Temple Emanuel, went to superior court for an injunction claiming that an MCAD investigation would violate its right to the free exercise of religion under the First Amendment. The argument succeeded, and the superior court declared that the MCAD lacked subject matter jurisdiction and permanently enjoined it from investigating the complaint. Following the MCAD's appeal, the Supreme Judicial Court took up the case.

In its brief, the MCAD points out that religious institutions are only exempt from anti-discrimination laws in a very narrow set of circumstances, such as when the employee in question has a "ministerial" function.  Teachers at parochial schools do not usually fall into this category.  While the Temple does not dispute this, it contends that the duties of all teachers at its school are "primarily religious" because they provide the students "with educational and religious instruction in all aspects of Conservative Judaism."  In instructing her students in Hebrew at this particular school, the complainant was doing something inherently "religious in nature," the Temple argues. In essence, the respondent contends that teaching at the school cannot be, as a matter of definition, secular.

That argument persuaded the Superior Court, which held that learning Hebrew was "part and parcel of the students' study of Jewish prayer, texts, and rituals" thereby rendering the teacher's job "ministerial." Will the SJC agree? If so, the case will have implications for employees at many other religious schools in the commonwealth. We shall have to wait and see.