Friday, February 24, 2012

A victory for the First Amendment

From World Magazine:

Church’s authority ‘alone’

SUPREME COURT | An unexpectedly unanimous high court decision protects church hiring decisions | Emily Belz


WASHINGTON—In one of the clearest rulings for religious freedom in years, the U.S. Supreme Court unanimously decided that courts may not intervene in church hiring decisions, protecting the “ministerial exception” that the Equal Employment Opportunity Commission sought to eliminate inHosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

“[T]he authority to select and control who will minister to the faithful is the church’s alone,” Chief Justice John Roberts wrote in the court’s opinion. Justices Clarence Thomas, Samuel Alito, and Elena Kagan wrote separate concurring opinions that said the ministerial exception should be even broader than Roberts allowed in his opinion.

“It was a strong rebuke to the extreme position taken by the Obama administration,” said Luke Goodrich of the Becket Fund for Religious Liberty, who served as counsel to the church in the case. “One of the biggest things is it’s unanimously decided, which nobody was predicting and is a really big deal. … It’s a great day for religious liberty.”

Assistant Solicitor General Leondra Kruger had argued before the court that the church school should only have the protection of freedom of association, the same protection that a labor group has. The court in its opinion characterized that argument as both “remarkable” and “extreme,” noting that the Constitution outlines specific protections for religion beyond those for a labor organization. Religious cases before the Supreme Court often center on the tension between the Free Exercise Clause of the Constitution and the Establishment Clause, but Roberts wrote that in this case, both clauses protect the Lutheran school from government interference. 

The high court has never ruled on the ministerial exception before, a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question, a commissioned minister at the Lutheran church school, qualified.

“We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision. Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role. 

The 6th U.S. Circuit Court of Appeals had ruled in favor of the teacher, saying she did not qualify as a minister because she spent more minutes of the day teaching secular subjects than religious subjects. The Supreme Court scoffed at that idea. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote.

During the oral arguments, some of the justices seemed bothered by the facts of the case. The Hosanna-Tabor teacher, Cheryl Perich, had narcolepsy and took leave from the Redford, Mich.-based school, which is affiliated with the Lutheran Church-Missouri Synod. Perich eventually returned to work but the school didn’t think she was ready to teach, and Perich threatened a lawsuit if the school did not reinstate her. The school revoked her commission as a minister and then fired her, on the grounds that she had circumvented the church tribunals that handle such disputes. (Alito, perhaps dryly, added 1 Corinthians 6:1-7 in the notes of his concurring opinion, verses that tell believers not to go before “the ungodly for judgment.”) 

“She was fired simply for asking for a hearing,” Justice Anthony Kennedy said in the arguments. But the court’s unanimous opinion said the question of whether the church used religious reasons as a pretext for firing Perich “misses the point of the ministerial exception,” which requires courts to preserve churches’ autonomy in selecting leaders.

The EEOC argued that a broad application of the ministerial exception would allow abuse by religious groups, like the hiring of children or undocumented immigrants. Roberts responded that churches are still subject to criminal prosecution, and that courts could consider other types of lawsuits regarding breaches of contracts, for example, “if and when they arise.” But Roberts concluded, “The church must be free to choose those who will guide it on its way.”

Enlightened decision, unlike so much of the gibberish from the Court on the religion clauses of the First Amendment. This is an obvious victory for the Free Exercise Clause, but it is a victory for the Establishment Clause as well. The government must have no role in the doctrinal, administrative, or educational decisions of any church, except in matters of criminal law.

Note the difference between this Constitutionally mandated separation of church and government and the faux "separation" championed by anti-Christian bigots.

Genuine Establishment Clause jurisprudence forbids the use of legal force to entangle action of an institutional church with actions of government. A church can't control government, nor can government control a church.

Faux-Establishment Clause jurisprudence forbids civic religious expression, despite the fact that all religious expression is protected by the Free Exercise Clause. Such "separation of church and state" ideology isn't Constitutional jurisprudence of any sort, but mere anti-Christian bigotry, plainly aimed at establishment of Civic Atheism.

It's a delight that the Court seems to understand what genuine Constitutional freedom of religion really means. It means freedom from government force, both in church administration and in civic religious expression.


  1. Michael,

    Agreed. This Supreme Court decision is a victory for religious freedom.

    The freedom of churches to screw their employees without recourse to any fair procedure.

    I agree that churches should have the right to dismiss ministers for reason. If for example they have a crisis of faith and become atheists (or in my point of view, gain sanity and ...).

    The teacher in this case seems to have been unfairly treated, because she was employed as a 'called teacher', with some religious duties. She took medical leave for what turned out to be narcolepsy, and when her doctor certified that she was fit to return to work, because her school employed a 'lay teacher' to fill her position, one who wasn't required to perform religious duties, she was fired.

    It's certainly a victory for the church to be allowed to unfairly treat its employees.

    Is this what you call religious freedom?

    1. ...become atheists (or in my point of view, gain sanity...

      Oh! What hubris hath The Brights wrought!

      Do you really believe you are one of the fittest, bachfiend?

    2. Pepe,

      I put that part in in order to pull your chain. I'm glad I succeeded ...

  2. "Roberts responded that churches are still subject to criminal prosecution, and that courts could consider other types of lawsuits regarding breaches of contracts, for example, “if and when they arise.”

    Are you sure that this is such a victory for churches? Roberts has clearly shown the way for legislation to be used in the future: criminalize actions like this and the church will apparently have no defense. This may turn out to be more of a Pyrrhic victory than you think it is.

  3. KW,

    I'm sure that's the way you see it. And guess what? That's fine. I know plenty of people who exercise that right daily--political extremists of all sorts.

    Perhaps you've heard this expression: "I may disagree with what you say but I'll fight to the death for your right to say it." That's from Voltaire. That used to be the essence of liberalism, but the sentiment is completely alien to modern "liberals".

    Next time some conservative really ticks you off, just say "Oh well, you have a right to be an asshole." Don't run crying to the government to make the bad conservatives do things your way.

    By the way, what part of wanting to control one's own hiring decisions makes conservatives "assholes" in this case?


  4. Personally, I'm against all anti-discrimination laws in hiring. None have ever protected me. Oh sure, some of them protect me in theory, but none in practice. And others don't even protect me in theory.

    Employment is a two-relationship that should be voluntary on each end. Just as I should be able to choose whom I work for, my employer should be able whom they will hire. That doesn't mean that I would support the hiring practices of a discriminatory company, only that IT'S THEIR DECISION TO MAKE. This is a difference that people don't seem to understand.

    Think about it this way. I'm "pro-choice" on hiring. That's something you liberals should be able to understand. You may have heard some liberal hand-wringing concerning abortion, in which they go on and on about how it's a "tragedy", but "ultimately the decision belongs to the woman, not the government. That's a whole lot of bullshit when it comes to abortion because there is a victim of deadly violence involved (the child), but with hiring practices it makes a lot of sense. Ultimately, the decision belongs to the employer, and employee, both of whom should be consenting parties.


  5. Separation of church, if it is to have any meaning at all, has to work both ways.

    Not that I accept that flawed formulation precisely because it's extraconstitutional. But seriously, BUTT OUT. It's none of your business if the school wanted to continue to employ this woman.


  6. "But seriously, BUTT OUT. It's none of your business if the school wanted to continue to employ this woman."

    Read the Commerce clause. The Constitution makes it very much within the allowed area of authority for the Federal government to be involved in commercial transactions - including employment.

    1. Oh, I read it.

      First of all, hiring is not interstate commerce. Second of all, just because the constitution grants the authority, doesn't mean that they have to use it. I'm just saying that it's bad policy. Commercial transactions should be between two consenting adults. There's no consent involved when one is forced hire a person because the government says so.

      Can the government force the person on the other side of the hiring arrangement to take a job he doesn't want? Wouldn't they simply be regulating "interstate commerce" if the forced you, Mr. Anonymous, to take a job you didn't want? It's the same thing. Sure. Tomorrow we're going to require you to work as a garbage sorter at the local recycling plant. We're simply regulating interstate commerce.


    2. Also, Anonymous:

      Here's another bone I must pick with you. You have steadfastly argued that the Constitution means what the courts say that it means. Over and over again you have told us that we should ignore the plain meaning of the text and refer instead to the wise judges who have interpreted it for us.

      In this situation, the judges decided by a margin of nine to nothing that my formulation is essentially correct--"...BUTT OUT. It's none of your business if the school wanted to continue to employ this woman."

      And here you are saying that the commerce clause says otherwise. The judges have ruled, Anonymous. Unlike you, I'm not going to say that they're right because they're judges. I'll say that they're right because they're right. They could be wrong tomorrow. But I hope you see my point. Live by the rule of judges, die by the rule of judges.


    3. "First of all, hiring is not interstate commerce."

      First off, it is. Read the precedents.

      "Second of all, just because the constitution grants the authority, doesn't mean that they have to use it."

      I agree. Whether Congress chooses to avail itself of the power is up to them. And in the general case, they have, by promulgating a group of rules to regulate hiring and firing practices.

      "In this situation, the judges decided by a margin of nine to nothing that my formulation is essentially correct--"...BUTT OUT. It's none of your business if the school wanted to continue to employ this woman.""

      No. They said in a very limited circumstance that the protections of the First Amendment trump the Commerce clause. But your blanket assertion that it would be extraconstitutional in general to regulate hiring and firing is simply wrong. This was an edge case, and probably could have gone either way, but it shouldn't be that big of a comfort to churches. According to Roberts, if Congress chooses to criminalize firing someone for this sort of thing, then the ministerial exemption wouldn't apply.

    4. "Over and over again you have told us that we should ignore the plain meaning of the text and refer instead to the wise judges who have interpreted it for us."

      You have misunderstood entirely. First off, there is no "plain meaning" of almost any text, and certainly not for a document with as broad language as the U.S. Constitution. Almost everything that people assert about the Constitution is an interpretation, even the interpretations that you disingenuously call "plain meaning".

      Second, the case law is where you find the interpretation by the body that the Constitution mandates shall make those interpretations. The decisions explain the reasoning of the court which they used to fulfill their Constitutionally mandated role as directed in Article III, Section 2. The way they interpret the Constitution is what the document means, not because you are supposed to defer to their wisdom for some esoteric reason, but because they are the body charged by the Constitution itself with making those interpretations.

  7. I agree with Trish. The right to be an asshole is a sacred one.

    Yoko Ono has a right to stand on stage and tear up the Bible. She's done it before. It's all for shock value. In my mind, that makes Yoko Ono a complete asshole. But I won't call the cops on her, and I would take her side if anyone ever tried to prosecute her. It's her right to be an asshole. It's other people's right to use their freedoms to tell Yoko Ono that she's wrong.

    The court decided correctly in this case. Hooray for religious freedom. The government refused to insert itself in a private relationship between a private school and a teacher. That's awesome.


  8. No one seems to have addressed the point I made that churches have the freedom to treat their employees unfairly, a freedom that no other employer has.

    The teacher appears to be in a Catch 22 position. She's considered to be a minister partly because she availed herself of tax breaks only available to ministers of religions.

    She was dismissed because she was said to have broken one of the central principles of the Lutheran church. To use internal dispute resolution instead mint heartening to go to a secular court.

    Whether that's a central principles of the Lutheran church is unknown. The only way a court could know is if it commences a case and calls expert witnesses. But doing that is an infringement of the First Amendment, so it's not allowed.

    The point remains. Is it fair for any employer to fire an employee who wants to return to work after being on medical leave once she has been certified to be fit to do so?