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Obama v. Constitution

Jan 23, 2012, Vol. 17, No. 18 • By TERRY EASTLAND
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Let us now praise the Supreme Court. We know that Newt Gingrich thinks the judiciary needs rebuking, and we agree with him to a point. But sometimes​—​actually, often under Chief Justice John Roberts​—​the Court gets it right. And it did so last week unanimously in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission.

Photo of the Constitution

With the chief justice writing the opinion, the Court, for the first time, recognized the existence of a “ministerial exception,” rooted in the First Amendment’s religion clauses, that bars the application of federal employment discrimination laws to the relationship between a religious organization and its ministers. The Court found that Cheryl Perich, the individual whose employer​—​a Lutheran church in Michigan​—​the EEOC had sued, claiming she had been terminated in violation of the Americans with Disabilities Act, was indeed a minister covered by the exception. The case thus could not go forward and was dismissed.

The Obama Justice Department took the opposite position, contending that there is no such exception for ministers and that Perich, a teacher in the church’s K-8 school, wouldn’t be covered by it anyway. But Obama’s lawyers were unable to persuade any of the five justices appointed by Republican presidents​—​or any of the presumably more persuadable four justices named by Democratic presidents. Not Justice Ginsburg, not Justice Breyer, and not Justice Sotomayor or Justice Kagan, both appointed by Obama. The vote was 9-0.

How extreme was the Obama administration’s position?

In rejecting the ministerial exception, the government was unwilling to follow the federal appeals courts, which have uniformly recognized the exception and its First Amendment roots. And in arguing that any ministerial exception “should be limited to those employees who perform exclusively religious functions,” the government took a much narrower view than have the appeals courts, which have agreed that the exception goes beyond formally ordained ministers, while differing on where the boundaries extend.

Here the Obama administration revealed how little it knows about church schools such as Hosanna-Tabor. As the chief justice wrote in response to the “exclusively religious functions” view of coverage, “We cannot accept that view. Indeed, we are unsure whether any such employees exist,” observing that even the heads of congregations often have a mix of secular and religious duties.

As for Perich, the Court was right to see that she was a “minister” under any sensible analysis of the facts. She taught secular subjects, but she also taught religion and led her students in prayer. And she did so at a school operated by a church that had formally commissioned her with the title of “minister” after she had completed six years of religious training. The church clearly expected leadership from her in advancing its message and carrying out its mission.

Significantly, the government also effectively read the religion clauses out of the Constitution, contending that religious organizations could mount defenses against employment discrimination claims by invoking the right of freedom of association​—​just as any labor union or social club may do. To this, the chief justice responded that “the text of the First Amendment itself .  .  . 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.”

During oral argument, Justice Kagan, Obama’s first solicitor general, obviously was troubled by the government’s “remarkable view.” “I, too, find that amazing,” she said to the acting solicitor general, that “neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.”

In the Obama administration’s view of how the world should work in a case like Perich’s, there being no First Amendment protection for religious organizations, employment discrimination claims would be tried and the courts would “balance” the various interests, those of the complaining employee and those of the employer church. Note well: The courts would decide.

The chief justice was compelled to respond:

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.

So the Obama administration’s stance in Hosanna-Tabor was rebuffed by the Supreme Court, which got right the meaning of the religion clauses. As the chief justice explained, “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.” It can’t be any plainer than that: The clauses protect religion from government. It’s good that we have a Court all nine of whose members are willing to say that. It’s too bad we have an administration that doesn’t understand such a basic principle of our Constitution.

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