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USA Today- In Hosanna-Tabor, government should butt out

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Led by the non-sectarian Becket Fund for Religious Liberty, Hosanna-Tabor’s defenders know that a decision against the church could have terrible consequences for freedom of conscience in America.

What do evangelical Christians, Mormons, Jews, Hindus, Muslims and Hare Krishnas have in common? Normally, you wouldn’t expect these groups to agree on much. In the Supreme Court case Hosanna-Tabor Church v. EEOC, however, an incredible array of faith groups — including representatives of these and other religions — have filed amicus briefs in favor of the church. Led by the non-sectarian Becket Fund for Religious Liberty, Hosanna-Tabor’s defenders know that a decision against the church could have terrible consequences for freedom of conscience in America.

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This case — which will be argued before the Supreme Court on Wednesday — began when the Hosanna-Tabor Evangelical Lutheran Church in Michigan dismissed a teacher, Cheryl Perich, from its church-run grade school. Perich taught a variety of subjects, including religion classes, and she led students in daily prayers. She also began a lengthy struggle with narcoleptic symptoms — including unpredictable bouts of sleep — in 2004.

When the church signaled that it wished to amicably release her from her “calling” as a teacher (a congregationally approved position), Perich threatened to sue the church for disability discrimination. Her principal reminded her that civil lawsuits within the church contradicted Lutheran teachings, but Perich persisted. Hosanna-Tabor accordingly voted to rescind her call, and Perich sued, saying the church retaliated against her for asserting her rights under the Americans with Disabilities Act. She asked for reinstatement to her position.

Honoring ‘ministerial exemption’

This case could strike at the heart of the “ministerial exemption,” which protects faith-based organizations from political meddling, especially on questions related to the employment of religious workers. The First Amendment’s ban on a religious “establishment” assumes that politicians and judges should not adjudicate matters of faith.

But in a jarring departure from precedent, the Department of Justice argued in an August brief that the ministerial exemption, if it even exists, is exceedingly narrow, applying only to clergy whose duties are “exclusively religious” (forgetting that even ministers have many earthly duties). Justice lawyers insist that Perich’s position as a Christian school teacher is not subject to the ministerial exemption.

The Founding Fathers intended the First Amendment’s religion clauses to restrict the government from interfering with religious matters. Secularist advocacy groups, including those supporting Perich, always seek to restrain the government from assisting faith organizations, even indirectly. They would howl with protest, for example, if Michigan provided vouchers to help students attend Hosanna-Tabor’s school. So why would secularists and their partners at the Justice Department approve of the government directly interfering with that same religious school by ordering it to hire a certain teacher?

To understand the First Amendment’s context, we have to go back to early America, when mother England and most of its colonies had established, tax-supported denominations. Being a Church of England parson effectively made you a government employee, and politicians had a great deal of say over what a religious leader could teach, and under what circumstances he could be removed. Colonial authorities fiercely persecuted Baptists, for instance, because they did not accept the state church’s preferred mode of baptism. (They baptized adults rather than infants.)

When framing the Bill of Rights, James Madison and the other Founders wanted the government to have no power to mandate church policies. They wanted no national denomination, either. So they prohibited Congress from making laws respecting an establishment of religion, and guaranteed churches and other religious organizations the “free exercise of religion.”

The dangers

One cannot imagine a more obvious feature of an establishment of religion, or a clearer violation of free exercise, than the government dictating to a church that it must rehire a religious teacher, especially a person who has violated church teachings or behavioral codes. The Justice Department’s position, if vindicated, raises the possibility that courts and bureaucrats may, in the name of contemporary norms of fairness, begin requiring religious organizations to hire any number of candidates who do not accept that faith’s tenets. One could easily imagine future decisions forcing churches, synagogues, or mosques to hire employees who do not adhere to the tradition’s norms of sexual behavior, for example.

Religious liberty will be severely damaged if faith groups cannot hire and fire according to their beliefs. That’s why leaders from such an impressive range of religions are united by the threat of a government clearly overstepping its well-defined boundaries.

Thomas S. Kidd is senior fellow at the Institute for Studies of Religion at Baylor University. He is also author of God of Liberty: A Religious History of the American Revolution and Patrick Henry: First Among Patriots (forthcoming in November).

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