Skip to content
Catholic Online Logo

By Keith A. Fournier

1/15/2012 (2 years ago)

Catholic Online (www.catholic.org)

Values informed by the by the Jewish and Christian heritage of the West have given rise to its entire approach to self governance

The United States Supreme Court, in an opinion entitled Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, has issued one of the most important Religion Clause cases of the last fifty years. The fact that the decision of the US Supreme Court was unanimous adds to its weight; coupled with the issuance of three substantial opinions filled with material for lawyers engaged in defending Churches and religious institutions.

United States Supreme Court

United States Supreme Court

Highlights

By Keith A. Fournier

Catholic Online (www.catholic.org)

1/15/2012 (2 years ago)

Published in U.S.

Keywords: Hosanna - Tabor, US Supreme Court, Establishment Clause, Free Exercise Clause, Free Speech Clause, censorship, anti-Christian, anti-Catholic, Justice Roberts, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, Keith A F


WASHINGTON,DC (Catholic Online) - On January 11, 2012 the United States Supreme Court, in an opinion entitled Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, issued one of the most important Religion Clause cases of the last fifty years.

This was a unanimous opinion. The majority opinion was written by Chief Justice Roberts. Two concurring opinions were filed; one by Justice Thomas and a second by Justice Alito who was joined by Justice Kagan.

On its facts, the case may seem an unlikely candidate for such a sweeping assessment.

Cheryl Perich was a commissioned or called lay teacher at a Lutheran School in Michigan. In 2004 she was asked to resign after a six month leave of absence for a disability called narcolepsy, upon certain terms and with assistance. The terms were set forth in the internal employment manuals of the school.

The teacher objected and the school sought a resolution under their internal dispute resolution procedure. Ms Perich pursued another avenue - the Equal Employment Opportunity Commission. She sought to file a claim under the Americans with Disabilities Act (ADA), a Federal Statute. The EEOC assisted her in the effort.

Those facts set up what will be viewed for many years as one of the most significant Church/State cases in American Law. This is often how such matters unfold in the world of American Jurisprudence.

Ms Perich attempted to argue that she was in essence a lay employee since she was not ordained clergy. She further argued that she essentially taught "secular" subjects and thus did not fall under what has been called the "ministerial exception" to certain Federal legislation. 

The School claimed that she was "called" according to their internal doctrinal schema. Further, that all teaching at the school was a part of the mission of the Church. Finally, they maintained that the Church's internal dispute resolution system was to be followed because this was a Church institution.

The fact that the decision of the US Supreme Court was unanimous adds to its weight; coupled with the issuance of three substantial opinions. The Court sets forth in its legal analysis a wide array of assistance for lawyers engaged in defending Churches and religious institutions. In fact, to expand the opinion to more fully protect the Church in all of her work, the concurring opinions offer needed assistance for good lawyers.

That has become essential these days as hostility toward the Church grows under our secularist regime. There is a difference between a secular approach to governance and secularism, an ideology at odds with properly accommodating religious faith,churches,religious institutions and religious speakers.

Lawyers are now regularly called upon to protect the Church from ever increasing Governmental encroachment and interference.I am such a lawyer.I spent much of my career in this very important work. 

This important opinion of the U.S. Supreme Court comes just as the effort to compel Church and faith based institutions to implement the "Affordable Care Act" ramps up. Part of its implementation involves efforts to compel distribution of contraceptives and the provision of abortion services at Catholic institutions. Of course, the Church will not comply with any effort to compel such a result. 

In its slip opinion the Majority of the Supreme Court summarized the evolution of Church State Matters in American history in these words:

"1. The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws.

"(a) The First Amendment provides, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the "establishment of religion" and guaranteeing the "free exercise thereof," the Religion Clauses ensured that the new Federal Government-unlike the English Crown-would have no role in filling ecclesiastical offices.

"(b) This Court first considered the issue of government interference with a church's ability to select its own ministers in the context of disputes over church property. This Court's decisions in that area confirm that it is impermissible for the government to contradict a church's determination of who can act as its ministers.

"(c) Since the passage of Title VII of the Civil Rights Act of 1964 and other employment discrimination laws, the Courts of Appeals have uniformly recognized the existence of a "ministerial exception," grounded in the First Amendment, that precludes application of such legislation to claims concerning the employment relationship between a religious institution and its ministers.

"The Court agrees that there is such a ministerial exception. 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. 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.

"By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

"The EEOC and Perich contend that religious organizations can defend against employment discrimination claims by invoking their First Amendment right to freedom of association. They thus see no need-and no basis-for a special rule for ministers grounded in the Religion Clauses themselves.

"Their position, however, is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. The Court cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers."

The Establishment Clause of the First Amendment was intended to protect against the establishment of a National Church and a forced adherence to its doctrine by all citizens. It was more aptly understood as an Anti-Establishment Clause.

Sadly, the interpretation of the Clause has devolved into an interpretation of a Church/State separation which is hostile to religious institutions, discriminates against people of faith and seeks to censor religious speech and expression in the public square.

The Free Exercise Clause of the First Amendment was intended to protect religious institutions and people of faith in their vital role in speaking and acting in an authentically pluralistic society so as to offer their contribution to the common good.

It was presumed that the values informed by religious faith were to be esteemed and welcomed because they actually serve the common good. Sadly, the Free Exercise Clause has been turned on its head - and is now used all too often to silence the Church and the religious speaker and actor.

Finally, the Free Speech clause has been subverted entirely. When the message and the messenger being examined under its increasingly hostile scrutiny is determined by the "State"  to be speaking a "religious" or even a "moral" message, its important protections no longer apply.

Religious or "moral" speech is now routinely censored. This is one of the dangers of what Pope Benedict XVI once labeled a "Dictatorship of Relativism". In a culture where there is no objective truth, those who claim otherwise become perceived as a threat.

So, given the growing hostility we now encounter in this Nation and much of the West, this resounding reaffirmation of the rights of Churches and religious institutions to operate freely and follow their own internal doctrine - as well as to determine their own way of resolving their own disputes - at least protects the Church and Religious Institutions for awhile.

However, those of us who know that objective truths such as the fundamental human right to life and the primacy of marriage and the family and society founded upon it have universal applicability cannot rest. Decisions such as Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission simply give us more time.

We know that the truths we proclaim about the dignity of every human person, marriage and authentic human freedom are not simply a matter of our religious doctrine. We also know they cannot be contained within the walls of our churches. They are the very sources of our liberty and are grounded in the Natural Law. 

Values informed by the by the Jewish and Christian heritage of the West have given rise to its entire approach to self governance. We cannot - we must not- and we will not - allow them to remain behind the walls of our Church buildings.

After all, that violates our underlying mission - which permeates our entire reason for existence. The Christian faith may be personal, but it is not private. Its message is profoundly public, meant for the whole world. And its messengers will never stop proclaiming it in word, lifestyle and deed.

---


Pope Francis: end world hunger through 'Prayer and Action'


2014 - Distributed by THE NEWS CONSORTIUM

Pope Francis Prayer Intentions for November 2014
Lonely people:
That all who suffer loneliness may experience the closeness of God and the support of others.
Mentors of seminarians and religious: That young seminarians and religious may have wise and well-formed mentors.



Comments


More U.S.

Obama declares all out war on Republicans over immigration reform Watch

Image of President Obama is expected to give a speech on November 20, outlining his plans to execute immigration reform via executive action.

By Catholic Online (NEWS CONSORTIUM)

Even after warnings from sitting and incoming House and Senate Republicans that unilateral action on immigration reform from President Barack Obama would not be tolerated, the president has gone ahead and outlined a plan to relax the rules and regulations of U.S. ... continue reading


The Marriage Meme of Francis: What Did the Pope Just Say about Marriage and Family? Watch

Image of Pope Francis presiding at a marriage Liturgy at St Peters.

By Deacon Keith A Fournier

Pope Francis embraces the unchangeable truth about marriage as solely between one man and one woman, intended for life, open to life and formative of family as the sole Meme - using the word properly.  That is why you will not read much about the crystal ... continue reading


Another black eye for Democrats: Obamacare architect makes off with $6 million in taxpayer money Watch

Image of New videos released in November show that the architect behind the Affordable Care Act, also known as Obamacare, holds nothing but contempt for the American people.

By Catholic Online (NEWS CONSORTIUM)

The architect of the fiasco that has been the Affordable Care Act (ACA), Jonathan Gruber, was paid about $6 million in taxpayer money between 2009 and 2014. LOS ANGELES, CA (Catholic Online) - This is about 24 times what an average, full-time American worker would ... continue reading


See the list of MOST FREE countries in the world, the results will surprise you! Watch

Image of Land of the Free no more, Americans report a significant decline in personal freedom under the Obama administration.

By Catholic Online (NEWS CONSORTIUM)

America is supposed to be the land of the free, so Americans themselves might be surprised to see that the United States actually ranks fairly low on the index of personal freedom when compared to other nations. Instead of occupying the number 1 spot, the USA has ... continue reading


America's foremost monster and madman Charles Manson intends to wed 26-year-old girl Watch

Image of A rare, recent prison photo of Charles Manson without his beard. The swastika on his forehead remains.

By Catholic Online (NEWS CONSORTIUM)

His name alone strikes a chord even today, years after his murderous activities with his "family." Charles Manson's name is synonymous with madness and mayhem. The 80-year-old murderer now intends to marry a 26-year-old girl with a freshly obtained marriage ... continue reading


LOCKED AND LOADED - National Guard called to Ferguson as Missouri governor reacts to broadening crisis Watch

Image of The grand jury has been meeting for about three months to consider evidence on the shooting of 18-year-old Brown by Officer Darren Wilson on August 9.

By Catholic Online (NEWS CONSORTIUM)

National Guard called to Ferguson as Missouri governor reacts to broadening crisisPolice will reportedly 'maintain peace and protect those exercising their right to free speech'Catholic Online (NEWS CONSORTIUM)A state of emergency has been declared in the state of ... continue reading


What does this say about America? New study finds that child homelessness epidemic has reached a historic high Watch

Image of A new study has shown that 2.5 million children in the U.S. were homeless in 2013.

By Catholic Online (NEWS CONSORTIUM)

After a surge in recent years, a record number of children in the United States are homeless, and could be as high as one out of every 30, a recent report has revealed. LOS ANGELES, CA (Catholic Online) - The report, titled "America's Youngest Outcasts," was ... continue reading


Why is Obama allowing foreign-designated terrorist groups to operate within the United States? Watch

Image of Protesters burn an American flag. The nation has many enemies, both within and without.

By Catholic Online (NEWS CONSORTIUM)

Two "moderate," mainstream Islamic groups in the United States feel as though they've been tarred and feathered with the same brush. The Council on American-Islamic Relations (CAIR), which describes itself as "America's largest Muslim civil liberties and advocacy ... continue reading


President Obama honors second man to die of Ebola in U.S. Watch

Image of Martin Salia, a Sierra Leone born surgeon is the second man to die of Ebola in the United States. Salia received a

By Catholic Online (NEWS CONSORTIUM)

Another doctor has died from Ebola, marking the second person to die of the disease in the United States. LOS ANGELES, CA (Catholic Online) - Martin Salia, a Sierra Leone native whose family lived in Maryland, was flown to Nebraska Medical Center where he was placed in ... continue reading


Coming to the USA! Pope Francis announces 2015 trip to Philadelphia Watch

Image of Pope Francis will visit the U.S. in 2015, where he will the fourth sitting Pontiff to visit America.

By Catholic Online (NEWS CONSORTIUM)

The Vatican has announced that Pope Francis will be making his first trip to the United States in September of 2015. LOS ANGELES, CA (Catholic Online) - The Pope is going to visit Philadelphia for the World Meeting of the Families, a Catholic public event which ... continue reading


All U.S. News

Newsletters

Newsletter Sign Up icon

Stay up to date with the latest news, information, and special offers

Daily Readings

Reading 1, Revelation 5:1-10
1 I saw that in the right hand of the One sitting on ... Read More

Psalm, Psalms 149:1-2, 3-4, 5-6, 9
1 Alleluia! Sing a new song to Yahweh: his praise in ... Read More

Gospel, Luke 9:41-44
41 In reply Jesus said, 'Faithless and perverse ... Read More

Saint of the Day

Saint of the Day for November 20th, 2014 Image

St. Edmund Rich
November 20: Archbishop of Canterbury England, who battled for discipline and ... Read More

Inform, Inspire & Ignite Logo

Find Catholic Online on Facebook and get updates right in your live feed.

Become a fan of Catholic Online on Facebook


Follow Catholic Online on Twitter and get News and Product updates.

Follow us on Twitter