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Response from Todd R. McFarland

Discussion Question: How Should the Supreme Court Rule on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC?

The Supreme Court recently granted certiorari for Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Should the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, apply to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship? And if so, where should that line defining ministerial exception be drawn?

The Sixth Circuit's opinion in Hosanna-Tabor that the Supreme Court has agreed to review illustrates precisely the need for a robust First Amendment, and why secular courts staffed with judges who are often hostile to religion and religious ideas are unsuited to essentially make hiring decisions for religious schools.

In Hosanna-Tabor the Sixth Circuit was faced with the question of whether a teacher at a Lutheran elementary school who taught religion, claimed a housing allowance on her taxes only available to ministers, and led out in prayer with her students, was a minister "who taught the gospel" or not. The court decided she was not in fact a minister, but instead that her "primary duties" were secular.

The court came to this conclusion because she spent the majority of the day teaching "secular" subjects such as math, language arts, and music. The court reasoned that these were her primary duties and therefore it would ignore the actually Bible instruction she gave and the religious character of the school and hold that she was not "teaching the gospel" and therefore not a minister.

This opinion fundamentally misunderstands religious education, schools, and why they exist. It has been understood by society for a very long time that the upbringing and education of children has a powerful impact on their lives. The Bible itself admonishes us to "Train up a child in the way he should go, And when he is old he will not depart from it." Proverbs 22:6. Training and education is a multifaceted process. While sitting in a math, reading, or music class students are learning a lot of information and it is not limited to the subject matter on listed on the class schedule. Values, ideals, morals, ethics and an entire host of other information are being transmitted to students during this process.

Parents and religious leaders have recognized this for a long time. This is why religious institutions for thousands of years have created schools. The purpose of these schools is to indoctrinate and further the institutions values and beliefs to the next generations and to it not just for a half hour a day during bible class but through entire curriculum and in every aspect of the school experience. Religious institutions do not create schools because they believe they can teach how to calculate the area of a circle better to grade schools students than a public or secular private school. Rather they do it because they know that while teaching kids that pi times the radius squared equals the area a lot more is going on and even math class is an opportunity to teach values. The Sixth Circuit essentially ignored this fact.

What the Sixth Circuit has done is essentially rewrite the mission of Hosanna-Tabor Evangelical Lutheran Church and School. According to the judges, no longer is the school about training kids to be Christians and good members of society. Rather its mission is the same as the local public school: to teach secular subjects. The mission of the school is one for the church and the school to decide, not for judges.

We have a First Amendment that says government will not interfere with religions or establish one. Here the Sixth Circuit managed to do both. It both told the church who it had to hire as a teacher and then dictated the nature of the school. The Supreme Court should correct this dangerous and wrong decision.

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