Wednesday, August 17, 2011

Important Case Regarding Church Rights Before Supreme Court

This term, the Supreme Court will hear Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. The case involves a lady who was fired from Hosanna-Tabor school, and sued the school under the Americans with Disabilities Act. The school asserted that they were allowed to do this under the "Ministerial Exception" (part of the time the plaintiff taught Religious Education) which prevents the government from interfering in a church's's personnel decisions.

The great Ed Whelan writes:

"A Sixth Circuit panel affirmed that the 'ministerial exception' to employment-law litigation was 'rooted in the First Amendment’s guarantees of religious freedom,' but held that a church’s firing of a teacher did not fall within the scope of the ministerial exception."

This has the potential to be a very important case for churches, and many religious organizations have filed briefs in support of Hosanna-Tabor. But Mr Whelan then notes the ominous fact that the Depatment of Justice has filed a brief that challenges the "ministerial exception" on principle:

"As law professor Rick Garnett wrote about the Court’s grant of review, “The question in the Hosanna-Tabor case is not so much whether the exception exists—it does, and it should—as how it should be understood and applied.”

But two weeks ago, the Department of Justice filed an opposition brief that dramatically raises the stakes in Hosanna-Tabor. Rather than simply arguing that the ministerial exception should not extend to the teacher under the facts of this case, DOJ’s brief disputes the general existence of the ministerial exception. (It instead acknowledges only that the Establishment Clause might bar a court order reinstating a minister or litigation that requires a court to resolve a dispute over religious doctrine. See Brief at 32-36. It opposes recognition of any “prophylactic categorical exemption,” and argues, only as a fallback, that if the Court nonetheless recognizes such an exemption, the exemption should be very narrowly limited to those employees who perform “exclusively religious functions.” See Brief at 48-51.)

DOJ’s position—which is even more hostile to the ministerial exemption than the amicus brief filed by Americans United for Separation of Church and State and the ACLU—thus threatens to expose churches and other religious institutions to a broad array of employment-discrimination claims that the ministerial-exception has long shielded them from."

If the Justice Department's position became law it is easy to imagine those opposed to church teaching, such as homosexual activists, finding employment in a church, then acting in opposition to church teaching, while the church would be prevented from firing them.

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