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By Keith A. Fournier

1/15/2012 (3 years ago)

Catholic Online (

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


By Keith A. Fournier

Catholic Online (

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.


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