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The US Supreme Court today handed down a unanimous decision upholding the freedom of religious organizations to decide who will be their leaders and teachers. The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, was about the validity of the "ministerial exception"--a concept created by lower federal courts in response to the First Amendment's Religion Clauses. Those clauses say that the government must respect religious exercise while not establishing religion. The Supreme Court upheld the reality of the ministerial exception while sharply chastising the federal government for denying its existence.

 

Some church-state scholars had termed this case the most significant religious freedom case in decades because it deals with the very fundamental question: is there a zone of autonomy such that the government may not second-guess crucial decisions made by churches and other religious organizations about their leadership, their beliefs, and their teachers? In pursuit of its mandate to ensure justice for all and to quash invidious discriminations, governments have asserted ever-more control over private activities, private individuals, and private organizations. Is there a zone it may not invade?

 

The Supreme Court has now strongly reaffirmed there is such a zone: there is a line of separation between church and state that protects vital church decisions from state rules.

 

Hosanna-Tabor concerns a "ministerial" teacher in a church-related schools--that's a particular job in a particular setting. Yet the Court's ringing language makes its decision of much wider significance. Note that this was a ministerial teacher, not a member of the clergy. And this was a church-related school, not a seminary or house of worship. Moreover, the Court used very strong language to stress how important it is for government to respect the freedom of religious institutions. So the Court's decision gives important support to institutional religious freedom more generally--the freedom that faith-based service organizations, and not just churches, need in order to faithfully carry out their missions.

 

Church-state expert Carl Esbeck (University of Missouri law school), said this: "It is not just a spectacular win on multiple issues and with multiple (indeed, all) justices on board, but it is the Court's sweeping language that is so very important. The words in the various justices' opinions ring out like a Liberty Bell for religious freedom. Already I can envision scores of legal briefs being churned out in the future mining the Court's passages reaffirming religious freedom as the First Freedom of the Republic. Of cardinal importance: the Supreme Court relied on the Establishment Clause as well as the Free Exercise Clause as a fountainhead of religious freedom-a contested point until now."

 

Note these passages from Chief Justice Roberts' unanimous opinion (emphases added):

 

"The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions." [pp. 13-4]

 

The EEOC and the fired teacher, Cheryl Perich, claimed that there is no "ministerial exception"; a church's legitimate decision-making freedom instead is protected by the First Amendment's freedom of association. Not so, said the Court: "The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC's and Perich's view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. . . . That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers." [p. 14]

 

"The EEOC and Perich suggest that Hosanna-Tabor's asserted religious reason for firing Perich-that she violated the Synod's commitment to internal dispute resolution-was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church's decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful-a matter 'strictly ecclesiastical' [ ]-is the church's alone." [p. 20]

 

"The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way." [pp. 21-2]

 

Read the decision here.  

 

Further reading:

 

Ted Olson, Christianity Today Online  

 

Richard Garnett, Notre Dame Law School  

 

Tom Messner, Heritage Foundation blog

 

Adam Liptak, New York Times  

 

 

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