Skip to content
Catholic Online Logo

By Keith A. Fournier

1/15/2012 (3 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 (3 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'


Copywriter 2015 - Distributed by THE NEWS CONSORTIUM

Pope Francis Prayer Intentions for February 2015
General Intention:
That prisoners, especially the young, may be able to rebuild lives of dignity.
Missionary Intention: That married people who are separated may find welcome and support in the Christian community.



Comments


More U.S.

Obama spends an alarming $3 billion on Obamacare WITHOUT Congressional approval Watch

Image of President Obama's administration is being accused of illegally spending money on Obamacare without Congressional approval.

By Matt Waterson (NEWS CONSORTIUM)

The U.S. Treasury Department may be moving forward with Obamacare regardless of Congressional concerns and a lack of funding, approving a $3 billion payment to health insurers despite the fact that Congress has not authorized any payments in annual ... continue reading


Obama Administration as Global Advocate for Radical LGBTI Agenda

Image of Randy Berry

By Keith A Fournier

Robert Reilly is right. The Obama administration is doing profound damage to the very understanding of human rights. We have fundamental human rights precisely because we are human persons. No-one should support the denial of truly fundamental human rights for ... continue reading


Climate change - WHERE IT HURTS: Scientists say warming will hit nation's agricultural heartland Watch

Image of The climate change panel's verdict came as a bit of a surprise: Greenhouse-gas emissions played a substantial role in Europe's misery, but not so much in California.

By Catholic Online (NEWS CONSORTIUM)

There are very few positive things to result from climate change. Researchers now say that warmer temperatures will hit America where it counts: the nation's agricultural heartland. LOS ANGELES, CA (Catholic Online) - Researchers presented their latest findings ... continue reading


WITCHES ARE BACK: Witchcraft reappears in today's popular mainstream culture in unexpected ways Watch

Image of Witches are seen in both religion and as a feminist symbol.

By Abigail James (NEWS CONSORTIUM)

The idea of the witch is making its rounds through history again. Females, both young and old, are embracing the power that comes with the feminist witch in today's society. LOS ANGELES, CA (Catholic Online) - In a recent twitter post, popular female rapper, Azealia ... continue reading


Alaska lights up as it become the third U.S. state to legalize marijuana Watch

Image of Twenty-three states still prohibit cannabis outright. The other U.S. states have either legalized medical marijuana or decriminalized marijuana possession.

By Catholic Online (NEWS CONSORTIUM)

The state of Alaska is lighting up in celebration... following Colorado's lead, Alaska has become the third U.S. state to legalize recreational marijuana use. LOS ANGELES, CA (Catholic Online) - Voters passed the Alaska Marijuana Legalization ballot measure last ... continue reading


The Air Force pulls a B-52 from the 'Boneyard,' and you won't believe what they did with it next Watch

Image of A B-52, one of the largest and most effective bombers in the world.

By Matt Waterson (NEWS CONSORTIUM)

For the first time in aircraft's history, the U.S. Air Force has brought a B-52 bomber back to life from the Boneyard of the Davis-Monthan Air Force Base near Tucson, Arizona. LOS ANGELES, CA (Catholic Online) - Nicknamed "Ghost Rider," this 53-year-old bomber had ... continue reading


Fr. Peter M. J. Stravinskas on the Chair of St. Peter and the Role of the Pope

Image of

By Fr. Peter M. J. Stravinskas, Ph.D., S.T.D.

The doctrine of infallibility, then, is derived from the principle of apostolic succession and from the fact that Jesus Christ promised His presence to His apostles when He sent them forth to teach all the nations (cf. Mt 28:20).  The Pope and the bishops in ... continue reading


'I don't know' whether Obama is a Christian, Governor Scott K. Walker of Wisconsin says Watch

Image of Governor Scott Walker declined to weigh in on Rudolf Giuliani's characterization of the president's patriotism and background.

By Catholic Online (NEWS CONSORTIUM)

When reporters asked Wisconsin Governor Scott Walker about U.S. President Barack Obama's religious affiliation, he said, "I don't know." Considered a possible Republican candidate for the presidency in 2016, Walker said he was not aware of Obama's faith.  ... continue reading


Fifty Shades of Madness: No Gray Area Here

Image of

By Jennifer Hartline

I can't say it any better than the Dowager Countess of Grantham: Have we all stepped through the looking glass? Yes, I'm afraid that collectively, as a culture, we have indeed. We no longer seem to recognize the plainly absurd as absurd. Up is down; out is in; ... continue reading


15 'mortifying disasters' every '90s girl experienced Watch

Image of

By Abigail James (NEWS CONSORTIUM)

Growing up in the '90s was full of iced-tips, crop tops, died hair, Spice Girls and boy bands. Being a girl growing up in the '90s, certain disastrous things could happen that would leave you "mortified." LOS ANGELES, CA (Catholic Online) With some help from BuzzFeed, ... 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, Psalms 116:10, 15, 16-17, 18-19
4 I pleaded with Yahweh my God and made this ... Read More

Psalm, Psalms 116:10, 15, 16-17, 18-19
15 Costly in Yahweh's sight is the death of his ... Read More

Gospel, Mark 9:2-10
2 Six days later, Jesus took with him Peter and James ... Read More

Reading 2, Romans 8:31-34
31 After saying this, what can we add? If God is for ... Read More

Saint of the Day

Saint of the Day for March 1st, 2015 Image

St. David
March 1: According to tradition, St. David was the son of King Sant of ... 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