Supreme Court rejects Obama administration arguments in 'most important' religious freedom case

Published: Wednesday, Jan. 11 2012 1:45 p.m. MST

When the Supreme Court accepted the case for review, the question was mainly thought to be about the extent of the exception; about deciding who was a minister under the exception. But then the Obama administration's Justice Department, arguing for the EEOC, said the ministerial exception virtually didn't even exist under the Constitution.

IS THERE A MINISTERIAL EXCEPTION?

Chief Justice Roberts wrote the opinion for the court. He quoted two clauses from the First Amendment where it says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These two clauses -- the Establishment Clause and the Free Exercise Clause -- are often in tension with each other in cases before the court. "Not so here," Roberts wrote. "The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own."

Michael W. McConnell, the Richard and Frances Mallery Professor and Director of the Constitutional Law Center at Stanford Law School said it is particularly significant that the court looked at both clauses. "The Establishment Clause is about separation of church and state," said McConnell. "Usually that is interpreted as a bar to governmental assistance to religion. This is only the second time in the Supreme Court's history where it is used in order to protect the independence of a religious body."

The court rejected the Justice Department's "remarkable" arguments that the Religion Clauses have nothing to do with a religious organization's freedom to select its own 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," Roberts wrote. "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."

WAS THE TEACHER A MINISTER?

The Sixth Circuit didn't argue against the existence of a ministerial exception, but it didn't think Perich was one for the purposes of discrimination law.

"We do support a ministerial exception," said Lipper at Americans United for Separation of Church and State, "but we argued in our brief the exception should only apply when the employment decision was motivated by some sort of religious reason. We argued, for example, that if the boss at the religious organization just didn't like women, the exception shouldn't apply because there isn't a corresponding benefit to religious liberty."

But the court didn't agree.

Roberts said, "The purpose of the exception is not to safeguard a church's decision to fire a minister only when it is made for religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful -- (is) a matter 'strictly ecclesiastical.'"

For McConnell at Stanford, it is a question of what parts of life the government gets to regulate.

Roberts said the Sixth Circuit made three mistakes in saying Perich was not a minister. First, it ignored the fact that Perich was a commissioned minister. Second, it gave too much weight to the fact that lay teachers performed the same duties as the minister teachers -- ignoring that lay teachers were only hired "because commissioned ministers were unavailable. Third, it emphasized Perich's secular duties too much -- looking too much at the relative amount of time she spent on secular versus religious duties. "The issue before us, however," Roberts wrote, "is not one that can be resolved by a stopwatch."

The court said Perich was a minister within the meaning of the ministerial exception. Her employment discrimination suit against her religious employer, Hosanna-Tabor, must be dismissed.

"This is encouraging that the court is moving in the right direction when it comes to appreciation of the important Constitutional values that are at stake," said George at Princeton University.

"There are legitimate religious liberty interests," said Lipper at Americans United for Separation of Church and State, "but we think the opinion was much broader than it needed to be to protect those interests."

FUTURE

One area the court did not fully decide was when an employee qualifies as a minister under the ministerial exception. The court also didn't look at breach of contract and tortuous conduct against employees/ministers by a religious employer. This leaves room for future decisions when and if the cases arise. "If I'm a religious school teacher and if I say the school violated my employment contract, will the law suit now get thrown out?" Lipper wonders. "That's a question the Supreme Court explicitly left open. You may see more cases seeing if the ministerial exception applies to other cases."

"(T)he First Amendment has struck the balance for us," Roberts concluded in the court's decision. "The church must be free to choose those who will guide it on its way."

"When it's a 9-0 decision," Lipper said, "you can be pretty confident the rule is here to stay."

Robert P. George, Michael W. McConnell and Hannah Clayson Smith are members of the Deseret News Editorial Advisory Board

RESOURCES

SCOTUSblog.com — Links to court documents and the full decision

Press release from Americans United for Separation of Church and State

Press Release from The Beckett Fund for Religious Liberty

"A Win for Religious Freedom," by Richard Garnett, professor of law and associate dean at Notre Dame Law School.

EMAIL: mdegroote@desnews.com

TWITTER: @degroote

FACEBOOK: madegroote

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