Supreme Victory for Churches' Freedom
High Court Affirms 'Ministerial Exception'
BY Joan Frawley Desmond
Register Senior Editor
January 29-February 11, 2012 Issue | Posted 1/24/12 at 12:56 PM
WASHINGTON — Church leaders and advocates for religious freedom hailed the Jan. 11 unanimous Supreme Court ruling on a closely watched First Amendment case, Hosanna Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission.
In the case, the justices were asked to decide whether a Lutheran church in Michigan, which fired a teacher at a church school, should be subject to federal anti-discrimination laws protecting disabled employees. The church argued that the constitutional doctrine of “ministerial exception” protected religious institutions from any such intrusion by the courts in the appointment of a church minister.
“The Supreme Court decision marks a victory for religious liberty and the U.S. Constitution,” stated Bishop William Lori, chairman of the Ad Hoc Committee on Religious Liberty for the U.S. Conference of Catholic Bishops, in a statement issued after the ruling.
“Respect for the long-standing ‘ministerial exception’ … is grounded in the Religion Clauses of the First Amendment and prevents the government from interfering in the employment relationship between a church and its ministers,” said Bishop Lori. “This decision makes resoundingly clear the historical and constitutional importance of keeping internal church affairs off limits to the government — because whoever chooses the minister chooses the message. It is a great day for the First Amendment.”
Richard Garnett of Notre Dame Law School and a consultant to the U.S. bishops’ Committee on Religious Liberty, characterized the ruling as one of the high court’s most important decisions on church-state concerns.
“Today’s decision vindicates clearly and strongly a crucial constitutional principle: The First Amendment protects religious liberty by forbidding governments from second-guessing religious communities’ decisions about who should be their teachers, leaders and ministers. Chief Justice [John] Roberts’ opinion for the court is well-reasoned, welcome and correct,” said Garnett in a public statement.
Garnett, associate dean for faculty research and the director of the Notre Dame Law School’s new Program on Church, State and Society, co-authored an amicus curiae brief in support of the religious school and of religious organizations.
The U.S. bishops and other religious groups concerned about the intrusion of the courts and government into the internal administration of church institutions had watched the progression of the case through the courts and were alarmed that the Justice Department under the Obama administration joined with the plaintiff in challenging the right of the Lutheran church to fire an employee of a church school allegedly because of a disability.
The high court was asked to rule on whether First Amendment rights covered by the Constitution permitted secular courts to consider lawsuits brought by “ministers” against church institutions. The Becket Fund for Religious Liberty, a public-interest group, and Douglas Laycock, the Robert E. Scott Distinguished Professor of Law at the University of Virginia School of Law, represented the Lutheran church.
The Becket Fund is also representing Belmont Abbey College, a Catholic North Carolina school that has challenged the constitutionality of the contraception mandate issued by the Department of Health and Human Services as part of the new health bill. The federal government has yet to issue a final rule confirming whether it will broaden its religious exemption, which the U.S. bishops say is too narrow.
Long Line of Cases
During the oral arguments before the high court last October, advocates for religious liberty were heartened by the justices’ initial response to statements by Leondra Kruger, the U.S. solicitor general’s assistant who represented the Equal Employment Opportunity Commission. Kruger was asked whether a ruling should accommodate even a limited ministerial exception, and she replied that in anti-discrimination cases no distinction should be made between secular or religious employers.
“That is extraordinary,” Justice Antonin Scalia responded. “We are talking here about the Free-Exercise Clause and about the Establishment Clause, and you say they have no special application?”
Justice Elena Kagan expressed her own surprise: “I, too, find that amazing,” she remarked.
Chief Justice Roberts’ Jan. 11 ruling affirmed the court’s unanimous judgment that the courts had no right to intrude into appointments by church institutions: “A long line of cases makes it clear that it violates both the separation of church and state and the freedom of religious believers and communities for the government to assume the right to decide whether a minister was appropriately hired or fired.”
“As courts across the country have consistently held, such decisions are outside the power of secular governments to review,” said professor Garnett. “In today’s opinion, the Supreme Court affirmed what the overwhelming majority of lower federal courts and state courts in the United States have already ruled and rejected: the well-outside-the-mainstream view advanced by the Obama administration’s lawyers.”
The ruling did not specify that the ministerial exception would shield every employment decision by church administrators.
“The decision will not cover every teacher in a Catholic school. But it will probably cover all teachers for whom teaching religion is a substantial part of their responsibilities. The court disclaims any attempt to draw a line that will govern all future cases; it holds only that this teacher was a minister. She taught religion daily and held an ecclesiastical office in her church, but also taught the whole fourth-grade curriculum,” said Douglas Laycock, who represented the Lutheran church and school.
Indeed, in a second concurrence, Justice Samuel Alito Jr., joined by Kagan, said the exception “should apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals or serves as a messenger or teacher of its faith.”
Garnett was pleased that the justices “rejected a crabbed approach to that exception, which would limit its reach only to ordained clergy or to ministers who spend a majority of their time on ‘religious’ activities. And they noted that the ministerial exception constrains the reach of government with respect to religious communities’ decisions about ministers, whether or not the employment decision in question was motivated or required by theological reasons.”
The ruling, said Garnett, “reminds us all that the separation of church and state is an important mechanism for protecting the religious liberty of all — believers and nonbelievers alike. Church-state separation is often misunderstood and seen as an anti-religious program or as requiring that ‘religion’ stay out of public life. But this is not the point of church-state separation.”
Michael McConnell, a constitutional scholar at Stanford University, noted that the decision does not address a range of lingering questions on church-state issues likely to end up before the court in the years ahead. “This is just one subfield,” he noted, in a thicket of contested church-state issues.
He suggested that the unanimous decision arose, in part, from the Justice Department’s “extreme position. There was no one on the case arguing that the individual plaintiff should prevail under a moderate position.
“There are any number of intermediate positions under which she might have prevailed, but no one presented the court with those arguments. Faced with a position on the extreme, there was full victory for the church.”
Asked why the Justice Department opted for an “extreme” position, McConnell suggested that “sometimes intermediate positions turn out to be incoherent and unmanageable, and it’s better to go for the clear rule that eliminates all” confusion.
“The trouble is that the clear rule in this case [could result in] something that virtually everyone would find shocking — the Catholic Church would have to hire women priests,” McConnell said. “The government was unable to explain convincingly why their position wouldn’t lead to that [outcome]. That is a very bad position to be in.”
Joan Frawley Desmond writes from Chevy Chase, Maryland.
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