Supreme Court unanimously backs religious freedom

Yesterday the U.S. Supreme Court unanimously rejected the Obama administration’s anti-religious and anti-constitutional view that the government can interfere in a religious body’s appointment of ministers including religious teachers.

In the Hosanna-Tabor case, the Supreme Court held that a Lutheran school’s decision to fire an ordained teacher who led prayer activities cannot be trumped by federal penalties for employment discrimination, in contradiction of the views argued by the President’s top solicitor.

The shocking character of the Obama administration’s position in favor of government interference in the selection of ministers has overshadowed the administration’s equally troubling positions that threatened religious education itself, and that would have narrowly defined religion to be an exclusively internal matter.

The Obama administration proposed that the First Amendment’s explicit religious protections should not give special protection to a church’s choice of ministers.  Instead it said the government can vaguely “balance” church interests in choosing ministers, against the government’s alleged interests in interfering with that choice.

Amazingly, during oral arguments the Obama administration declared that a church really has no interest in choosing its own school teachers because religious belief is only really protected when it is expressed purely “internally,” whereas school teaching is unprotected because the church decides “to open its doors to the public to provide the [] socially beneficial service, of educating children for a fee in compliance with state compulsory education laws.”

In other words, when a group of religious people get together to educate children according to their religious educational viewpoint, they are not engaging in truly protected religious action, but instead they have abandoned the core of their rights by taking their beliefs to the “public,” because they allow other children to attend their classes.  If a church goes outside its own four walls, especially to teach children, the Obama administration considers the action to be fundamentally secular and irreligious, such that it doesn’t really “count” under the First Amendment’s religion clauses.

When challenged on its views the Obama Justice Department doubled-down, insisting that “there is a fundamental difference between . . . those who would preach the word to the congregation [and] administer its sacraments, on the one hand, and the more public relationship between a church and a school teacher and others that provide services to the public at large.” The Obama administration made the same distinction in its written brief, asserting that teachers at religious schools “perform a public function: like teachers in public schools, they offer a service necessary to satisfy state compulsory education laws.”

This attitude renders education an inherently secular activity, including a church’s decision to evangelize its kids and others through its own private school, for the mere reason that the government has decided to impose general education requirements (which is the same as the state saying, “becaue I said so”).  And the administration’s view also takes religious believers out of the essential constitutional protection afforded to the category of “religion” unless the only thing they do is navel-gaze within the walls of their churches.  If they step out into the “public,” whose boundaries the (secularist) government gets to draw, they aren’t really exercising religion anymore.

These are frightening, aggressively secular positions advanced at the high court by President Obama. Not coincidentally, the Obama administration similarly redefined religion into oblivion by declaring that an entity is not “religious” unless it is a church or religious order that primarily hires and serves only its own believers, so that everyone else can be forced to fund abortifacients and contraception.

The threat of a secularist government attacking the effectiveness of religious education, and believers’ ability to influence society at large, is a real one, made demonstrable by the explicit positions taken by our President. Hosanna-Tabor thankfully rejected one part of this threat, but it left several questions to be argued on another day, likely very soon.



  • Pat

    OK — I have no doubt I’ll be roundly blasted for this but I feel the question needs to be posed. I’m posting this as food for thought and don’t really want to start a major debate. As someone who’s politics are generally considered “liberal” and, as a fan of President Obama, I completely AGREE with the opinion and analysis of this blog posting. What always amazes about this kind of thing is how the converse is not also recognized as obviously true. Yes, we have a secular government. Yes, freedom of religion must be fully protected from that secular government as our founding fathers saw fit to ordain. The constitutionally mandated secular nature of our government is the reason it is able to avoid favoring, endorsing or condemning any one religion. Especially on a site endorsing Sen Santorum, someone who openly stated he would NOT stop states from legislating Catholic doctrine on birth control, it is important to at least contemplate that for any religion to impose its beliefs on that secular government, to legally impose its will on citizens with their own constitutionally guaranteed freedom to disagree, is equally wrong and equally dangerous. It is not about our values as a nation — it is about the role of our government. My values are generally in keeping with most self-declared “conservatives”. What gets me labeled as a liberal is my absolute refusal to force my values onto those who may disagree. I believe mine is actually the more politically “conservative” position in that it is very much about small government. Our laws must protect all religions, including the right to be atheist, or even hedonist, if one chooses. That is our constitution. I think it is much more effective to advocate social reform by working to change hearts rather than laws. I believe the founding fathers would turn over in their graves at current trend toward infringing upon the secularity of our government. Our republic is NOT a theocracy and must be protected from becoming one as mandated by our constitution.

    • Joshua Mercer

      Who is calling for the federal government to establish a state church? What we’re asking for us for the federal government to stop trying to force our Catholic schools from having to provide contraception, sterilization, and some abortion pills in the health care coverage they provide to their employees. The wall of separation between Church and state, as Jefferson called it in his letter to the Danbury Baptists, is being routinely violated not by the Church encroaching on state affairs, but by a relentless attack by the state on the affairs of our Churches. Thomas Jefferson would be scandalized by this president’s vast overreach in the nefarious contraception mandate.

      • Pat

        You’re completely misreading me and I no-doubt said it poorly. I agree with you completely. I’m furthering the concept here to say that both are equally dangerous. Santorum, for one, has no problem with legislating Catholic doctrine and has said so explicitly.

        • Joshua Mercer

          He has not said he would be legislating Catholic doctrine. That’s not accurate. He was asked by CNN if he would sign a bill banning contraception. And Santorum said he would veto it. “I don’t believe that everything that’s immoral should be illegal. The government doesn’t have a role to play in everything that either people of faith or no faith think are wrong or immoral,” said Santorum.

    • Tom Crowe

      Pat— Food for thought: Is it possible that the state has a vested interest in proscribing certain behaviors that might simultaneously be considered immoral by one sectarian credo or another? Practices like abortion. So many people accuse pro-lifers of opposing abortion on purely religious grounds, when the survival of the state when the populous is reproducing below replacement rate is in grave peril, AND the empirical evidence suggests that abortion causes far more problems for a society than it supposedly fixes—increased infidelity, increased abuse of women and children, and increased single motherhood all have ties to the legalization of abortion. Not to mention that even science is rapidly trending in the direction of, “no, that’s a separate unique human life in the womb, why are you killing it for convenience?” at an earlier and earlier point of gestation. One of the great parts about being Catholic is that we always work to justify through natural law and scientific reasons the laws that we propose, even if we first approach them on Catholic morality grounds. So to answer your question, even someone like Santorum isn’t seeking to push Catholicism on the rest of the people as much as he is seeking to enact sound policies that he knows will benefit society, and he knows this both through moralistic and sound natural law grounds.

      • Pat

        Completely accepted as food for thought and very valid points. Abortion is a particularly difficult issue and, being anti-abortion myself, especially difficult for me personally. I do believe you’re overstating it, however, since not all abortions are for “convenience”. My father-in-law was a practicing physician who delivered hundreds of babies during the pre Roe v Wade era and a staunch Catholic. When faced with, his example, a Fallopian tube pregnancy he said his only option was to wait for the tube to rupture and try to save the mother from hemorrhaging to death even though the baby was never remotely viable. Such lack of common sense is probably what drove us to Roe V Wade in the first place and while, yes, I’m against abortion in general and abortion for convenience in ALL cases, I would not want to return to those days. Santorum’s view that outlawing birth control is perfectly acceptable, however, is well beyond anything the vast majority of this country (even of Catholics) considers remotely reasonable. I do not consider this “sound policy” and I do not trust, or even agree, “that he knows [what] will benefit society”. I do not disagree that the state does have a vested interest in some societal engineering. I just think we need to be very careful of the slippery slope. I still think changing hearts and minds through education and advocacy OUTSIDE of legislation is a more effective approach than force, not subject to the political whims of the day, and avoids involving government bureaucracy at those times when exceptions are both medically necessary and morally justified – assuming an exception process even exists. Government is the LAST entity that should be involved in deciding whether something is a medical necessity or morally wrong. Thank you for the dialog, accepting my statements as intended, and replying with a fact-based analysis. That is sometimes unusual in public forums such as this, of any political persuasion, and I appreciate it.

        • Tom Crowe

          Pat— First, do not take my meaning beyond what I said. I didn’t not say all abortion are for “convenience,” though a direct abortion* is still never legitimate, even for rape or incest—ought the child conceived in the rape or incest to be punished with death for the father’s despicable act? On what basis?
          No argument on “changing hearts and minds” as the best approach in all cases. But sometimes more is necessary and legitimate. You appear to agree with this. According to one of Joshua Mercer’s above comments, Santorum was asked what he would do if presented with a bill to outlaw contraception and he said he would veto it. I haven’t looked into the actual dialogue in question, but since the only way that bill would reach his desk is if the Congress *passed* it, one can safely assume that such would only happen if a majority of Congress critters did not fear being lynched for voting for such a bill, which would suggest a populace that was significantly amenable to such a law. In which case it wouldn’t be nearly as horrid or toxic as it seems to most minds today.
          But I would argue that contraception *is* contrary to the public good (for reasons not too-far removed from why abortion is bad)—not that I would, at present, advocate for outlawing it outright since the populace is not prepared to accept such a proscription. But if the “hearts and minds” campaign goes successfully in that direction then I could see the nation (or at least certain states, since I really like federalism) being okay with a law against contraception. ——— I don’t fear a slippery slope so long as a compelling argument can be made from natural and perfectly reasonable premises to support the proposed law.
          *as opposed to an indirect abortion, as in the case you presented, an ectopic pregnancy. The removal of the fallopian tube *before* it ruptures is legitimate because, as you note, the child was never going to survive the pregnancy but the continuation of it could be lethal for the mother. The measure taken would not be an abortion since the death of the child is not intended or sought, though it was inevitable in either case, and one of the options would prevent grave danger to the mother.

          • Pat

            Mostly we’ll have agree to disagree and cast our votes accordingly. I think we’ve both made our points well and we’re really not that far apart on most things but I still come down on the side of keeping government out of that decision process. You are factually, however, quite mistaken about the tubal pregnancy. If you simply repeal Roe v Wade – this would most certainly be an illegal abortion — and it is just one example of similar such issues. I’ve tried to post a follow up on the Santorum thing twice now but it hasn’t gone through. Hopefully it will.

          • Pat

            I want to add that I understand you’re referring to the Church’s stand on tubal pregnancy and I am well aware of the difference. As I see it – this distinction between what the Church teaches and how it may or may not be well-implemented in legislation is precisely why this should never be made law. If the law says “Life begins at conception” then the embryo in that Fallopian tube is legally a person and can not legally be aborted. It’s easy to be against abortion in the abstract – the vast majority of people (including all the other “liberals” I know) are. But when it comes down to specific cases, to the details of implementation and how to handle the questionable cases (more numerous than you might think) – our judicial system is wholly unsuited to deal with those issues. That decision must be between the family, the doctor, and their own religion. I’ve seen quite heated debates on specific cases among pro-life Catholics (e.g. Bishop Olmsted and the infamous Phoenix case). Do we really trust our government to handle such difficult cases fairly, morally? Do we really expect someone in the horrific situation of that mother of 4 in Phoenix to track down a judge in an emergency, tragic situation and legally petition for an exemption? Often there is no time for that to save a mother’s life even if the judge has the wisdom of Solomon – which many do not. If we can’t even agree as pro-life Catholics then how can we expect our secular government to act with prudence, efficiency, and human compassion? I truly respect and admire the motivation behind the desire to outlaw abortion. I agree with it. I simply ask that we all examine closely some of the more difficult situations, think of the family involved, think of their grief, then think about our secular government having the final say in that judgment call. I know I’m not the only one for whom that is a very scary thought. Add to that the complication that other religions might draw the line differently on the difficult cases and a single “proper” physical manifestation and implementation of any abortion law becomes really rather impossible. I don’t pretend to believe my words will have an impact but I speak from a well-informed conscience, after decades of prayerfully considering the options, with heartfelt sincerity and first-hand experience in one of those difficult and tragic situations.

        • Joshua Mercer

          Pat, it is possible that you were writing this comment at the same time I was responding to you. But in case you didn’t see my earlier comment, I’ll repeat the point. I remain curious as to why you continue to insist that Rick Santorum is interested in outlawing birth control. Yes he thinks contraception is immoral. So do I. But he would not make it illegal. Same here. CNN reported: “As an example, Santorum said he personally disagrees with contraception, a position shared by many in the Catholic faith. However, he said he would vote against any federal rules banning methods of birth control.”

      • Patty

        That’s why the Supreme Court has said, on multiple occasions, that moral disapproval alone is not a valid basis for laws especially, when they affect one group of people, but not another. In other words, there has to be a governmental purpose for the law other than just legislating morality. For instance, murder is not illegal because it is immoral. It is illegal because it intrudes on another persons liberty – namely their right to life.

        • Matt Bowman

          “It is illegal because it intrudes on another persons liberty – namely their right to life” This is a moral judgment.

          • Patty

            No, it’s not a moral judgement. It’s a judgement based on the Constitution. Do you understand our system of government in any way?

        • Joe M

          Patty. I think that it’s the other way around. Courts have ruled some legislation unconstitutional on the grounds that some protected right is disenfranchised. Other than that restriction, the people do not need any specific basis for the laws that they enact. They can have a moral basis for a law, and provided that it passes through the hoops needed to legislate, enact it. There is no grand poobah with the power to veto the people about what government is and is not. — Participating in government via advocating legislation or holding office, even if it complies with or is driven by religious values, is perfectly valid and is what our system was designed to allow. It is not “forcing religion onto others” any more than bicyclists are “forcing their bike-lanes onto others”.


  • Frank

    Actually, the Obama administration argued that she wasn’t a minister, but a teacher, as her leading a 10 minute prayer each morning, didn’t really qualify her as a minister. As a teacher, the Obama administration said that they had a right and duty to protect her from being unjustly fired because of her medical condition, in violation of the American with Disabilities Act. Facts actually do matter.

    • Matt Bowman

      Actually, the Obama Administration argued that, and far far more than that, including everything that Josh said it argued. And the Court rejected this minimalist view of what church employee counts for constitutional protection, too, for the very good reason that it’s none of the government’s business to tell a religious school that some prayers aren’t important than others. In fact the court unanimously rejected President Obama’s view. Because that view is anti-religious: it is the government telling churches who to hire as teachers in their religious schools.

      • Patty

        But it’s true that there are thousands of teachers at religious schools that are ordained “ministerial instructors” like this woman. She wasn’t a minister, she was a teacher that happened to have been ordained by the school, probably for this very reason. If a school can fire a teacher because she isn’t the right religion, then that is discriminatory and limits religious freedom. I’m sorry, but the Supreme Court got this all wrong and the effects of this aren’t being accurately described. This is a scary ruling for anyone that works for a private religious school. It seems like this is written and completely ignores that fact. It’s just trying to make Obama look bad.

  • Francis

    Josh, in your article you repeatedly attribute the arguments to the Obama adminsitration, but in reading the court documents that you cite it looks like this was argued by the EEOC, which is a federal law enforcement agency under any administration.

    • Matt Bowman

      Wrong on two counts: the case was argued by Obama’s Solicitor General, who decides (under Obama) what position to take in all Supreme Court cases under President Obama; and the President is in charge of what positions his EEOC takes. President Obama’s EEOC has targeted religious freedom in several ways, including also by ruling against Belmont Abbey College for its decision not to cover abortifacient and contraceptive drugs in its health plan. Bottom line: the buck for what DOJ and EEOC argue stops at the White House, 100%.



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