On October 5, the most important religious liberty case in decades will be argued before the United States Supreme Court. It is yet another instance of the influence of secularism in America, and it may result in a substantial reduction in religious liberty. At stake here is the ability of churches to operate without interference and control by the government, or whether churches will be treated as if they were mere secular organizations.
The case is entitled Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission. To understand why it is so important, I have to take a step back and explain a bit of constitutional law on religious freedom.
The phrase “separation of church and state” does not appear in the United States Constitution, but the basic concept is embodied in two clauses of the First Amendment, as interpreted by the Supreme Court. In a nutshell, the Free Exercise Clause guarantees that the government cannot intervene in the internal affairs of religous organizations, and the Establishment Clause prohibits the government from any “excessive entanglement” in religious matters.
These principles are essential to the guarantee of religious liberty — they protect churches from becoming mere creations of the state, subject to interference by the government. So, for example, under current law it would clearly violate both the Free Exercise Clause and the Establishment Clause if the government were to interfere in a church’s selection of clergy, over how doctrine is taught, or how a church resolves internal ecclesiastical disputes. The First Amendment thus requires that religious organizations enjoy a considerable amount of freedom — a zone of privacy, if you will.
These basic principles have a direct impact on the ability of religous organizations to select their key staff members. The courts have long understood that religious organizations must have considerable autonomy in the selection of clergy and other staff members who have religious missions. They have also recognized that this autonomy occasionally conflicts with the provisions of anti-discrimination laws.
To address this tension, the courts long ago recognized what is called “the ministerial exception” to the anti-discrimination laws. This exception permits churches to select their spiritual leaders — even if that decision would have violated anti-dicrimination statutes had it been done by a business. So, for example, the Catholic Church’s cannot be sued for sex discrimintion based on her all-male clergy. The courts also recognize that this should not be limited to formally-ordained clergy, since many lay staff members play crucial roles in the religious mission of churches — just think of the central role of parochial school teachers, directors of religious education, pastoral associates in parishes, etc. in spiritual life of the Church. Of course, not all employees of a religious organization are “ministers” . For instance, one could not justify classifying a school janitor as a “minister”, since his job is clearly not spiritual in nature.
This brings us to the case before the Supreme Court. The facts of the case are fairly straight-forward. It involves a dispute between the Hosanna-Tabor School and one of their former teachers. The teacher alleged that she was fired in retaliation for threatening to file a disability claim, in violation of federal anti-discrimination laws. The school responded that she was a ministerial employee, whose job entailed a specifically religous mission for which she was commissioned by the church, and that as a result, the school’s decision to terminate her was an internal matter and was not subject to the anti-discrimination laws.
The Supreme Court will be wrestling with those facts, and also with larger questions — whether to recognize the ministerial exception, determining what part of the Constitution it rests upon, and giving guidance on how it is to be defined. The biggest challenge is how to do all this without infringing upon the religious liberty of churches, and without getting the government entangled in internal religious matters.
Virtually every major religious organization — including the U.S. Bishops — has filed a brief in support of the Lutheran school, arguing for a broad definition for the ministerial exception rooted in the Free Exercise Clause of the First Amendment.
The Administration, however, has filed a brief that advocates for the virtual elimination of the ministerial exception. In the Administration’s view, the exception — if it exists at all — is so narrow that it would only apply to clergy and disputes about doctrine. Moreover, the brief denies that the exception is rooted in the Establishment or Free Exercise clauses, but is instead supported only by a much weaker constitutional principle that is subject to being overridden by any neutral, generally-applicable law.
In short, the Administration is advancing a position that would treat religious organizations as if they were merely secular groups, subject to virtually any government oversight and control — no different from banks, oil companies, or airlines. If the Administration’s position prevails, churches will be subject to endless litigation and regulation, aimed at influencing and changing their internal doctrines and practices. This is a radical and dangerous argument.
Religious liberty is one of the founding principles of our Republic. It is the reason that many of our ancestors came here, and the reason that many immigrants still long for our shores. We must all pray for wisdom on the Supreme Court — and await with trepidation the decision in this momentous case.
