SCOTUS Unanimous For Religious Freedom – UPDATED

The Supreme Court of the United States has ruled unanimously in favor of a church’s right to be itself, and its freedom to assign its ministries:

This is an enormous and timely victory for religious freedom:

In a groundbreaking case, the Supreme Court on Wednesday held for the first time that religious employees of a church cannot sue for employment discrimination.

But the court’s unanimous decision in a case from Michigan did not specify the distinction between a secular employee, who can take advantage of the government’s protection from discrimination and retaliation, and a religious employee, who can’t.

It was, nevertheless, the first time the high court has acknowledged the existence of a “ministerial exception” to anti-discrimination laws — a doctrine developed in lower court rulings. This doctrine says the First Amendment’s guarantee of freedom of religion shields churches and their operations from the reach of such protective laws when the issue involves employees of these institutions.

At the time the SCOTUS heard the case, it was noted that both Justices Scalia and Kagan had reacted with something like shock at the government’s constitution-shredding argument:

President Obama’s Equal Employment Opportunity Commission claimed during oral arguments before the U.S. Supreme Court last week that it can order a church to restore a fired minister to a teaching position.

But that was a claim not even the president’s handpicked appointee, the very liberal Justice Elena Kagan, could accept as she and her colleagues considered Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. [...] The justices then rejected the argument of Leondra Kruger, Obama’s lawyer for the EEOC, who argued that there’s no ministerial exception in the Constitution, only the same rights that secular organizations possess to choose their own affiliations.

At this, Scalia exploded. “That’s extraordinary! There, black on white in the text of the Constitution, are special protections for religion. And you say it makes no difference?”

Kagan agreed with Scalia’s rejection of the argument that the First Amendment doesn’t protect churches from government ordering who they should hire as pastor or priest.

Given reports following the hearing, it’s not really shocking that the SCOTUS came down unanimously against the government’s case. But it’s reassuring, all the same.

Writing the court’s opinion, Chief Justice John Roberts said, “Allowing anti-discrimination lawsuits against religious organizations could end up forcing churches to take religious leaders they no longer want.”

“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,” Roberts said. “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.”

But, Roberts said, since this was the first time the high court has ever considered the “ministerial exception,” it would not set hard and fast rules on who can be considered a religious employee of a religious organization.

“We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” he said. “It is enough for us to conclude, in this, our first case involving the ministerial exception, that the exception covers (Cheryl) Perich, given all the circumstances of her employment.”

The Obama administration tested the waters with an extreme gambit. They’ve now established that this court, in its current make-up, will rule in favor of the churches against overt threats to the most fundamental of our religious freedoms. I expect that if Obama is re-elected, we’ll see continued–but measured–attempts to weaken religious freedoms, as it attempts to discern precisely where the lines are, and how they may be crossed. Chief Justice Roberts appears to acknowledge as much, in writing the opinion.

Meanwhile, this is very good–yes, reassuring–news.

Over at NRO, David French writes:

In one sense it’s sad that this case even had to go to the high court. Is government so ambitious that it seeks to intrude even into ministerial decisions? On the other hand, I’m grateful for a decisive 9–0 victory to act as a deterrent to the EEOC and any other state agency as presumptuous.

It’s just round one, folks. Round two is still heading up-Scotusstream

UPDATE I:From Richard Garnett:

In today’s opinion, the Supreme Court affirmed what the overwhelming majority of lower federal courts and state courts in the United States have already ruled, and rejected the well-outside-the-mainstream view advanced by the Obama administration’s lawyers. This last point is worth emphasizing: The administration’s lawyers had pressed an extreme view — one that no other court, and few scholars and experts, had embraced — and they convinced no one.

And, Ed Whelan:

In one concurring opinion, Justice Thomas expresses his view that courts should “defer to a religious organization’s good-faith understanding of who qualifies as a minister.” In a second concurrence, Justice Alito, joined by Justice Kagan, calls for the inquiry to “focus on the function performed by persons who work for religious bodies,” rather than on whether a religious organization uses the term “minister” or has a concept of ordination.

I’ll link to more analysis as I come by it, so check back!

UPDATE II: Frank Weathers in the archives with James Madison:

In a free government the security for civil rights must be the same as that for religious rights.


We previously wrote about ways that the Obama administration is attacking religious freedom and separation of church and state at this link. We described how the Equal Employment Opportunity Commission is wiping out jobs and discouraging hiring and job creation through onerous interpretations of federal employment laws . . .

Hugh Hewitt:

Reading the opinion a second time it becomes even more obvious that the Chief Justice’s opinion will become one of the great fortresses of religious liberty in the future.

Allahpundit has more links and analysis.

Via Facebook: “This is what a Becket Fund Smackdown looks like”.


Obama admin and Religious Conscience
Legislating the Constitution Down
Constitional Erosion of Freedom of Religion
Freedom of Religion Under Assault

About Elizabeth Scalia
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  • Todd


    I think churches should exemplify fairness in employing people, something consonant with their own values of justice. But it’s better for them to do so on their own initiative, and without undue interference. People who work for a religious establishment know (or should know) what they’re getting into.

  • terry nelson

    Very good news indeed!

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  • Mark

    This should start the ball rolling to have these unconstitutional state laws struck down forbidding adoption, promoting contraceptives through Catholic healthcare institutions, and providing healthcare benefits to non-married (same sex) employees.
    Careful! Next stop will be restoration of the family! :-0

  • GM Roper

    I can’t remember the last 9-0 decision and I’m 65. That it comes in a case of religious freedom for churches to be able to manage/control their spokespeople/ministers etc. is great news indeed.

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  • Chateaubriand

    This is a good decision indeed. What is particular reassuring about it is the unanimity of the Court. At least in this day and age the protections for religious freedoms have not completely vanished.

  • Manny

    Fantastic. And you have people who comment over at Deacon Greg’s blog that the Obama administration is not the most anti religious administration in recent memory. The Obama administration advocated a policy so anti religious that even the Liberals on the court ruled against them. I cannot see how anyone who values their religion can support this administration any longer. Obama must go.

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  • awashingtondccatholic

    In many ways it is a sad day that we even had to come to this point.

  • Oregon Catholic

    While the precedent for upholding religious freedom is welcome, I can’t feel much joy over the particulars of this case. Despite being a titled a ‘called minister’ the party in this case was in reality a teacher who got sick, couldn’t work, and then was forced to give up the rest of the school year to a replacement. Then in frustration at not being allowed to return to work she made some threats to file a ADD lawsuit and got fired for it.
    She wasn’t fired for teaching religious error or living a lifestyle in opposition to church teaching which the state should not interfere with, but for having the misfortune to get sick and then ticked off at being kept from earning a living. Having also been terminated (job description rewritten by my at-will employer to fit my temp. replacement) just days after returning from a medical leave I know what she went through. Nothing to rejoice over here.

    [No one can be happy about a job loss--and many of us have experienced the loss of a job under circumstances we'd protest, myself included--but there is something to rejoice over, here, and I'm sorry it is not obvious. As the Chief Justice wrote in the opinion: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.” Yes, and in this case, the loss by the churches of the fundamental right to be who they are would have been constitution-shattering. But don't worry. More cases are coming -admin]

  • Oregon Catholic

    Elizabeth, what bothers me is that she wasn’t fired for anything to do with protecting the religion of the church employer. IMO the church treated her very badly for purely secular reasons and I’m just very sorry the precendent was created on the back of such a poor example of christian charity.

    [I understand what you're saying, and I don't disagree. Unfortunately, churches do not always live up to their ideals, as we know all too well. Nevertheless, had this ruling gone down in any other fashion, it would have been untenable. If churches can lose fundamental rights simply because they've screwed up in administration, we'd have lost our churches long ago! admin]

  • Dan C

    I agree with this decision.

    In this case, a church was defended in an objectively immoral employment decision.

    May future cases be better.

    The story is a disgrace and embarassing.

  • craig

    The woman was fired because she, as a sanctioned minister, refused to accept the canonical judgment of her church. It is no different than a bishop removing a priest who refuses to honor his vows of obedience. The bishop’s action may be unjust, but it is impossible to bar his action in secular law without doing irreparable harm to freedom of religion.

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  • Mary

    On the contrary, she was fired for openly declaring that she intended to live a lifestyle in opposition to church teaching. Even after the fact was pointed out to her that the tenets included that you must use the church’s mediation instead of the secular courts.

    This is hardly original to them.

    “How can any one of you with a case against another dare to bring it to the unjust for judgment instead of to the holy ones? Do you not know that the holy ones will judge the world? If the world is to be judged by you, are you unqualified for the lowest law courts? Do you not know that we will judge angels? Then why not everyday matters? If, therefore, you have courts for everyday matters, do you seat as judges people of no standing in the church? I say this to shame you. Can it be that there is not one among you wise enough to be able to settle a case between brothers? But rather brother goes to court against brother, and that before unbelievers?

    Now indeed [then] it is, in any case, a failure on your part that you have lawsuits against one another. Why not rather put up with injustice? Why not rather let yourselves be cheated?”

    One could argue that since the courts are no longer staffed by pagans, and the scandal of lawsuits to pagans is now gone, that there is a case for arguing that it is no longer appliciable. However, it is clear that the burden of proof is on those who would justify lawsuits.

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  • filiusdextris

    I agree with Oregon Catholic. This woman was clearly wronged, and it is not so clear that she was a minister. This ruling puts any so-called religious organization above the law in personnel decisions, which has some potential for abuse (maybe a secular organization will characterize themselves as religious so as to avoid the EEOC).

    This ruling could have gone the other way and still been fine, if it were narrowly construed. They could have upheld the ministerial exemption, but ruled that she was not a minister. They could have recognized a ministerial exemption generally, but prevented the church from firing her since there was a documented bad cause (retaliation firing). The decision also puts a strain on the 1990 landmark Smith decision (which I would love to see overturned), since it says that the church board’s actions aren’t “conduct” but mere “belief”, and thus Smith just got narrowed by being claimed inapplicable here as a defense.

    Don’t get me wrong, I’m glad how they ruled, but unlike most people, I didn’t see this as a necessarily life-threatening case had it gone the other way. More importantly, I’m just glad for a clear framework, and they nailed that by giving the Establishment Clause amazing deference.

  • Todd

    I’m also sympathetic to OC’s and the plaintiff’s situation. I’ve been unjustly terminated from at least two jobs in my life, and one of them was with a church.

    Churches behave badly. There’s no secular law against sinful behavior. We know that churches find it damned difficult to admit they’re wrong, to apologize, and to deal straight with people who are angry with them.

    Losing a job in this way happens. One of my predecessors injured a fragile hip while moving the church piano. She needed one more week of rest and rehab after surgery and a long recuperation. The pastor was unwilling to give it to her. He was a skinflint. He declined to renew her contract. If I had known, I never would have accepted the position, and most people I know wouldn’t have worked for the man.

    That said, there are ways of heaping burning coals on the heads of sinners. Filing this lawsuit isn’t optimal.

    “I cannot see how anyone who values their religion can support this administration any longer. Obama must go.”

    Well, Manny, you’d better come up with a third party candidate, my friend. Because I don’t see the other Republicans as any better. If opportunity knocks, you can bet they will throw a wife overboard, watch a supporter die, or … wait a minute–they’ve already done these things.

    If only SCOTUS could defang detention without limits, then we’d have a smidgen of hope for lawfulness. Meanwhile, it looks like the Muslims are going to get the brunt of this mess without judicial recourse.

  • Andre

    Great news! But…..this is really disappointing, if accurate:

    David Nickol posts in the comments section of this story over at First Thoughts:

    Regarding “the administration’s embarrassment,” someone over at Mirror of Justice notes the following:
    Certainly, the Obama Administration bears a healthy portion of responsibility for the arguments made in this case. But administrative agencies have their own agendas that last well beyond any administration. Thus it seems pertinent to note, with respect to the question of any hostility to religious freedom, that the EEOC originally filed this suit in 2007, during the Bush Administration, and appealed the District Court’s decision to the 6th Circuit on January 30, 2009, before any Obama appointees reached the EEOC Board.

  • Greta

    What do you call 10,000 lawyers at the bottom of the ocean? good start.

    That is what this ruling is and no more. We need a few more Scalia’s on the court to really make progress. Now if we can fix how the courts have abused the 1st, tenth, 14th, and other parts of our constitution, we can move our country back in the right direction.

  • Todd

    Is it true that this suit went forward under the Bush Administration in 2007?

  • Richard Johnson

    I think the ruling also sends a message to the laity in religious institutions. As has been pointed out, the plaintiff in this suit was not a cleric but a teacher, and the issue was not heretical teaching but illness and loss of her job.

    The Supreme Court has properly decided that this matter, and others like it, should be decided solely by the church. Now it is up to the church, freed from the threat of government interference, to make sure their decisions reflect not only the privilege they have been given under our laws but also the spirit of the One they say they serve.

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  • filiusdextris

    This ruling might also make hiring quality Catholic school teachers a ton harder knowing that the Church officials, even if it is the furthest thing from their mind, can likely fire them at will. Not having the Constitution (14th Amendment + Title VII) defending your back is scary. My father has tenure at a Catholic university and is in his late 60s. If it weren’t for tenure, he might have been let go long ago. Things will be interesting now for a lot of religious workers.

  • filiusdextris

    Greta, which Scalia are you referring to – Antonin or Elizabeth? Remember that the former, who authored the pivotal Employment Div. v. Smith case in 1990, has possibly done more to erode religious freedom in the United States based on that case than anyone else in the of this generation (despite being generally a good man and wonderful scholar and writer).

  • kel

    not really understanding why this is even a discrimination case, in my job, if you go on disability for more than 20 weeks, you are not guaranteed your job back, have to reapply for the job and go throught he interview process, I guess b/c its written in the employment manual and we agreed to it, thats okay, but the fact is, someone needs to be doing the job, and the co. cannot hold off and burden the rest of my coworkers with my workload for a long time just to promise me a job back.

  • filiusdextris

    Todd, from the Circuit opinion: “On September 28, 2007, the EEOC filed a complaint against Hosanna-Tabor in the United States District Court for the Eastern District of Michigan alleging one count of retaliation in violation of the ADA.” So ‘yes’ to your question. My guess, though, is that the original lawsuit was probably first sanctioned by longer-term rank-and-file EEOC workers, not by the EEOC board which is appointed by the President.

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  • EBL
  • Manny


    “Well, Manny, you’d better come up with a third party candidate, my friend. Because I don’t see the other Republicans as any better. If opportunity knocks, you can bet they will throw a wife overboard, watch a supporter die, or … wait a minute–they’ve already done these things.”

    I don’t have to come up with anything. You have to decide who your conscience is most comfortable with. The abortion issue alone should make that decision for any devout Catholic. Obama is the most pro abortion president in history. You decide.

  • Manny

    Greta says: “We need a few more Scalia’s on the court to really make progress. ” Quite right. Think of it this way. Is it a coincidence that all five Catholics on the bench were appointed by Republican presidents? No it’s not. There is a difference between the parties. The Liberals around here haven’t caught on that a transition in the parties has occurred over the last twenty-five years. For the most part, Republicans are much more sympathetic to religion in general, and to Catholics in particular.

  • doc

    It is a credit to the Chief that he managed to get all 9 on board, rather than the standard 5-4 decision that causes the Left to wail about conservatives taking over the judiciary.

  • Reg

    Nobody knows the real facts because the case hasn’t been tried. The LCMS has a dispute resolution process that she refused to go through, and threatened to sue. It is a scandal for a church worker to sue the congregation that employs him or her. This woman preferred to bring scandal to her congregation than submit to the church’s dispute resolution process. That is not setting a Christlike example for her students.

    If she did submit to dispute resolution, the synod may have told the church it was wrong, or been able to reconcile them. It’s unclear. But she is not clearly in the right, and neither is the church. We simply don’t know. But it’s not for the government to resolve the issue.

  • Tom T

    I could not agree more. Every religious body that I am aware of has a dispute resolution process including the Catholic Church wherin a priest can take his case before a canonical tribunal with a canonical lawyer to represent him and even appeal his case the the Vatican if need be. If the Supreme Court had ruled in favor of the Govt. lawyers, the first amendment would have been turned on it`s ear. You could have priests suing bishops in same sex relationships,(God forbid) for gender discrimination. With referance to a commentator above who mentioned Catholic school teachers, teachers in my Archdiocese, at least, have a contract and are represented by a union which has it`s own grievance procedure. The Supreme Court was correct in it`s ruling by remaining
    faithful to their responsbility of deciding the constitutionality of decision
    from a lower court which, as we all know to well, like to legislate from the bench irregardless of how the constitution applies to the case as a 9 to o decision clearly demonstrates. I don`t suppose Notre Dame will be inviting Obama back for another commencement speeh and honorary
    degree anytime soon since they are fighting with the administration`s HHS concerning new regulations requiring them to cover contraceptives and abortin pills in their empoyee insurance plans. Pax

  • Oregon Catholic

    Just how far does this lack of gov’t intrusion into church affairs go? Are employees of churches exempt from payroll taxes, from min. wage law?

  • filiusdextris

    Oregon Catholic, probably doesn’t change much, but you’re right to at least wonder – hopefully they still feel compelled to send the fire department out to save a burning church building…

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  • Tom T

    Oregon Cath & filiusdextris
    I take it you both would prefer to live in a socialist country. Sorry. The constitution on which this country was founded was written with enough
    forsight to prevent that from happening. There are seperation of powers which annoys the heck out of Obama who would like to bypass, and routinely does, the consitition which in his words “prevents him from doing the things he would like to do.” As to sending the fire company out and other government services, the people who worship in these places pay taxes and are entitled to the saame protections as evryone else. If you want to know how far the government will go to for “intrusion,” just ask your socialist friends like the ACLU or the Southern Poverty law Center who sue to remove any mention of God in the classroom or any religious sign, ie; Ten Commandments from govt. buildings and property and would even like to have “In God We Trust,”
    taken off the currency which is, if you read the Bill of Rights and the Constitution what this country was founded on. As a matter of fact if you read a little American history you might find the reason why the English came here in the first place. Might even give you a clue as to what wen`t on under English tyranny that precipitated their arrival. The Country was founded putting checks and balances in place to stop people like Obama from doing and creating whatever kind of governmental rules he thinks he would like to have including, forcing religions to come under government rule by bypassing Congress and the will of the people and the Constitution. Pax