Category Personnel/Employment
Title Religious Hiring and the US Supreme Court - Twice Over
Author/s Stanley Carlson-Thies
Preview Religious Hiring and the US Supreme Court - Twice Over
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Religious Hiring and the US Supreme Court—Twice Over
by Stanley Carlson-Thies. Reprinted with permission.

Yesterday [October 5, 2011] was oral argument day at the Supreme Court for the blockbuster religious freedom case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. At one level, it is a case about whether a teacher in a faith-based school who teaches a non-religious subject but who has some religious duties should be considered a "ministerial" employee, such that the school is largely free to make decisions about her employment without running afoul of employment laws. At a deeper level it is a case about the rightful separation of church and state, a separation build into our system and philosophy of government and rooted in more than two thousand years of Western, Christian, and Jewish history. Unfortunately, the Department of Justice has decided to oppose the very idea of a protected space where churches and other religious organizations can make their own decisions about ministers.

Michael McConnell, top church-state expert at the Constitutional Law Center at Stanford University, said this about the case in yesterday's Wall Street Journal:

"[T]he Obama Justice Department has now asked the court to disavow the ministerial exception altogether. This would mean that, in every future case, a court—and not the church—would decide whether the church's reasons for firing or not hiring a minister were good enough.

"But the government, including the judiciary, is not entitled under the First Amendment to decide what qualification a minister should have, or to weigh religious considerations against others. Is a secular court to decide, for example, whether confining Catholic priests or Orthodox rabbis to males is a correct interpretation of scripture, or merely a vestige of outmoded and stereotypical bias?...

"The Justice Department's brief grudgingly concedes that there may be an exception for employees performing 'exclusively religious functions,' but this is an illusory protection. Every church officer—even the pope—performs at least some nonreligious administrative duties. If the government's position were accepted, the courts would be embroiled in disputes about the selection of clergy at all levels and in every denomination. This would be a radical reversal of our nation's long constitutional tradition....

"When the First Amendment declared that 'Congress shall make no law respecting an establishment of religion,' it meant that churches would support themselves and control themselves. And the separation of church and state is a two-way street: It protects the autonomy of religious institutions from governmental interference no less than it prevents advancement of religion by government power."

The other religious hiring action by the Supreme Court was its decision on Monday [October 3, 2011] not to review the decision of the Ninth Circuit of the federal appeals court upholding religious hiring by World Vision USA. In the case, Spencer v. World Vision, the federal court in Seattle, and then in the Ninth Circuit—twice—ruled that World Vision, though engaged in humanitarian work, was authentically a religious organization and thus covered under the religious exemption of Title VII of the 1964 Civil Rights Act. Thus it was within its rights to fire three employees who decided that they no longer were committed to World Vision's religious beliefs.

Title VII forbids private employers from, among other acts of discrimination, hiring or firing a person because of their religion. But it includes a religious exemption (different than the court created ministerial exception at state in the Hosanna-Tabor case noted above) so that it is not illegal discrimination when a religious organization considers religion when hiring and firing.

The fired employees claimed that World Vision was essentially a secular humanitarian organization, not a religious organization. By choosing not to take up this case, the US Supreme Court lets stand the contrary view: an organization does not cease to be a religious organization just because it serves the poor and hungry in material ways and doesn't confine its help to prayer and religious teaching.

[Editor's notes: (1) Hosanna-Tabor is the single most important religious freedom case the Supreme Court has heard in several decades. The court's decision is expected sometime near the summer of 2012. Depending on what the court's opinion says, this case could determine how much freedom a school has in basing employment decisions on its religious beliefs. Currently, courts have taken the word of ministries about why they acted and how sincere the belief they acted on was. That could change.

(2) The World Vision case is a victory for Christian educators. The former employees argued that because World Vision is not a church or closely related to a church it should not get Title VII protection. The court did not accept such a narrow view and instead upheld a case by case basis reviewing all an organizations characteristics to determine if it is protected—a much broader interpretation of Title VII. Christian schools can still hire and fire on the basis of their religious beliefs.

However, it is still extremely important that Christian schools be clear in their mission, vision, job descriptions, and contracts to include wording that clearly states that the school is a Christian organization. We encourage schools to use the document provided by ACSI, The Ministry of Teaching.]

This article was published in the October 6, 2011, eNews for Faith-Based Organizations, a publication of Institutional Religious Freedom Alliance (IRFA). Reprinted with permission from Stanley Carlson-Thies and IRFA.

LLU 22.2

Notice: This article is designed to provide accurate and authoritative information in regard to the subject matter covered. It has been provided to member schools with the understanding that ACSI is not engaged in rendering legal, accounting, tax, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional should be sought. Laws vary by jurisdiction, and the specific application of laws to particular facts requires the advice of an attorney.

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