Full Court Win in Tabor

Thomas S. Kidd March/April 2012

On January 11, 2012, the Supreme Court delivered a historic reaffirmation of the First Amendment guarantee of “free exercise” of religion and ban on religious establishments. The Court’s clarity in Hosanna-Tabor v. EEOC is signaled by the clear and unanimous decision. The decision shields churches and other religious organizations from discrimination lawsuits by ministerial employees, and, more important, protects churches from government whims regarding the hiring and firing of ministers. But we should not rest easy: Hosanna-Tabor bolsters, but hardly secures, America’s commitment to religious liberty.

This case began when Cheryl Perich, a teacher at Hosanna-Tabor Lutheran Church’s grade school, threatened to sue the school for purportedly refusing to accommodate her long-term illness, even though the financially strapped Michigan school had already given her full-time pay and benefits for seven months. Perich knew that it violated church teachings for a member to sue the church. She had an appeal process available to her through denominational channels, independent of local congregational officials. When she persisted in her threats to sue, the congregation voted to rescind her “calling” as a religious teacher.

Under traditional understandings of church employment practices, the courts have allowed a “ministerial exception” from antidiscrimination statutes, so that a religious group’s convictions trump political sensibilities of fairness. The Obama Department of Justice (DOJ) recommended a sharp departure from this precedent, arguing that the Court should either abandon the ministerial exception altogether, or apply it in the narrowest way possible, to those ministers whose duties are “exclusively religious.” This standard, the DOJ argued, would mean that Perich was not a “ministerial” employee, even though her position was subject to congregational vote, she taught religion and prayed with students daily, and she coordinated and led students’ devotions in chapel. Indeed, one wonders how the DOJ’s standard could even apply to most clergy, who often are required to perform such mundane duties as mowing the grass.

The DOJ’s recommendation was utterly rejected in the Court’s decision, and the church’s position, argued by the nonprofit Becket Fund for Religious Liberty, was utterly vindicated. This is one of those rare moments when the system worked as intended. Even President Obama’s appointed justices repudiated the DOJ’s attack on the ministerial exception. Justices Sotomayor and Kagan are to be commended by all defenders of church-state separation.

The outcome represented a victory for both sides of the First Amendment’s principles of religious liberty. As the decision read: “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.” It would also violate “the establishment clause, which prohibits government involvement in such ecclesiastical decisions.” One cannot imagine a more full-throated affirmation of the need to protect the internal affairs of religious organizations from government meddling.

This decision is good news, but it stands in stark contrast to the narrowly split decision by the court in Christian Legal Society v. Martinez only a year and a half earlier. In that case the court decided to uphold a policy of the University of California’s Hastings College of the Law that requires official campus groups to employ an “all-comers” policy with regard to membership. The Christian Legal Society required members to sign a pledge not to engage in premarital sex or homosexual sex. Because of this, the college denied the society campus benefits, including access to meeting facilities and the campus organization fair.

Building upon Christian Legal Society, the Ninth Circuit Court of Appeals asserted in the 2011 case of Alpha Delta Chi-Delta v. Reed that organizations at San Diego State could be denied official status for restricting membership to Christians. (The state of California seems to be leading the charge to penalize Christian groups that wish to remain Christian.) These cases are suggesting that Christian organizations can be deprived of benefits if they maintain exclusive or ideologically unpopular membership policies, even if those policies touch upon the fundamental ability of a group to maintain its Christian identity. Even the Ninth Circuit noted that the Christian associations in question might have been singled out for special disadvantages: would groups based on common ethnicity, political convictions, or shared interests also be forced to admit “all comers,” regardless of whether they supported the organization’s mission? Unsurprisingly, that does not seem to be the case at San Diego State.

So what’s the difference between Hosanna-Tabor and Christian Legal Society that produced such contradictory results for religious liberty? Although the court did not explicitly address the difference between the two cases, it seems that while Hosanna-Tabor affirmed the freedom of a church from government meddling in ministerial employment decisions, Christian Legal Society raised the prospect that the government may punish religiously based college groups for maintaining unfashionable policies, such as forbidding members from engaging in premarital sex or homosexual acts. The court may be implying, then, that there is a higher threshold for justifying the regulation of churches than there is for regulating parachurch organizations.

In one sense, this is a favorable compromise: both the Christian Legal Society and Hosanna-Tabor Lutheran Church have been allowed to maintain the controversial policies in question, and the fundamental integrity of  the group or the church are not threatened by the respective decisions. In a way, Hosanna-Tabor is the more significant case for the fundamental right to religious freedom, because had the court sided with the DOJ, the right of churches to select ministerial employees without government interference would have come into serious question. And while Christian Legal Society raises troubling free exercise questions, the Christian Legal Society has at least been allowed to exist at the law school while maintaining their Christian membership standards, albeit without the benefits of official recognition.

Furthermore, the unanimous decision in Hosanna-Tabor reflects the strong conviction across the Court’s ideological divide that real religious liberty must afford faith organizations freedom from government tampering with internal spiritual affairs. The narrow split decision in Christian Legal Society suggests that the Court has not come to a clear consensus about whether the state can both maintain a robust standard of free exercise of religion, and place external disadvantages on parachurch campus groups that do not comply fully with contemporary mores of equity. In previous cases, however, such as Employment Division v. Smith (1990) and Bob Jones University v. U.S. (1983), the Court has indicated a willingness to permit disadvantages against religious groups or individuals who engage in illegal or racially discriminatory practices, especially when the law violated was widely applicable, and not crafted specifically to inhibit the free exercise of religion.

In coming years courts, college administrators, and federal agencies may put increasing pressure on religious organizations to revise the traditional Christian view of sexual behavior, or to face legal penalties. One could easily imagine a case, for example, that would seek to deprive a religious college of federal funding because of its policy on sexual behavior, or to deprive a church of tax-exempt status for preaching against homosexual acts. But Hosanna-Tabor at least offers hope that the Supreme Court will not allow such efforts to intrude upon the inner workings of faith organizations themselves. For that renewed protection of religious liberty, we should be grateful. 

Thomas S. Kidd is senior fellow at Baylor University’s Institute for Studies of Religion, and the author of a number of books, including Patrick Henry: First Among Patriots.

Article Author: Thomas S. Kidd

Thomas S. Kidd is a research professor of church history at Midwestern Baptist Theological Seminary in Kansas City. He has authored numerous books, including Who Is an Evangelical? The History of a Movement in Crisis (Yale University Press, 2019) and Benjamin Franklin: The Religious Life of a Founding Father (Yale University Press, 2017). His most recent book, Thomas Jefferson: A Biography of Spirit and Flesh, was published this year by Yale University Press. His work has also been published in various media outlets, including the Washington Post and the Wall Street Journal, and he blogs at “Evangelical History” at The Gospel Coalition website. He’s on Twitter, @thomasskidd.