Posted Thursday, January 12, 2012 1:27 AM By John F. Maguire
Anthony R. Picarello, Jr. is general counsel for the United States Conference of Catholic Bishops. Joining with fellow AMICI CURIAE (Friends of the Court) in co-authorship of one of the Supreme Court’s AMICI CURIAE briefs, Mr. Picarello wrote: “The state has no legitimate interest, compelling or otherwise, in trespassing on a church’s right to select its ministers. [….] [H]owever weighty the state’s interest might be in eliminating discrimation or retaliation when it comes to employment of workers in the secular arena, the state never has a compelling interest in sanctioning a church, under the rubric of ‘discrimination’ or otherwise, for excluding a person from ministry.” Source: _Brief of the United States Conference of Catholic Bishops, the Church of Jesus Christ of Latter-day Saints, the Episcopal Presiding Bishop of the Episcopal Church, and the Union of Orthodox Jewish Congregations of America as AMICI CURIAE in Support of Petitioner on Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit in the Supreme Court of the United States, _Hosanna-Tabor Evangelical Lutheran Church, Petitioner, v. Equal Employment Opportunity Commission, et al., Respondents_. At stake in this case is religious liberty, and just this liberty, which liberty, in its intensive Catholic sense, is epitomized by the Apostolic liberty of the Church of the Word Incarnate. Kudos to the USCCB’s general counsel Anthony Picarello and his fellow AMICI in their excellent work on this important case.
Posted Thursday, January 12, 2012 5:21 AM By Abeca Christian
I heard about this great news before this website announced it and I was so happy. Praise God. Some more good news to lift our spirits.
Posted Thursday, January 12, 2012 5:55 AM By Ted
It’s a defeat for the Obama administration, to be sure. But the assault will continue. It’s worth considering to increase contributions to those who fight these battles in court. The government can (and does) print money to fund these assaults on religious organizations. Defending religious liberty has to be quite expensive and someone has to pay these costs or we’re done.
Posted Thursday, January 12, 2012 9:23 AM By WOODY GUIDRY
THIS NATION “UNDER GOD” SURVIVES!
Posted Thursday, January 12, 2012 10:19 AM By Bud
Yes, a defeat for the Obama administration for it’s blind support of the radical gay activists and their antics especially with their school union representations that are causing so much of the “takeover” of our public schools’ agendas Our Catholic parents have many children in our public schools being spoon fed the trash filtered down to them from the “ultra left” Obama czars. These parents pay thru the nose for public school taxes also and must reiterate by any means possible that the school systems must stop their brainwashing and intimidation of parents to bow to the rights of parents. Plenty of laws are in effect when parents abuse their own responsibilities. It is time to organize for the 2012 election.
Posted Thursday, January 12, 2012 11:01 AM By goodcause
Good call by the Supreme Court. Long overdue.
Posted Thursday, January 12, 2012 3:58 PM By mike
Yes, churches have a right to determine the qualifications of its ministers, including those not members of the ordained clergy. However, like all pendulums, it only swings so far. No church should be able to use this right to protect those ministers who abuse children or otherwise engage in criminal activity. Nor should the church use these rights to retaliate against whistleblowers in clear cases of criminal activity.
Posted Thursday, January 12, 2012 4:23 PM By John F. Maguire
The _Hosannah-Tabor_ Court’s unanimous decision is in accord with a well-esbablished line of church-autonomy cases, in the last century a line that goes back to _Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church_, 344 U.S. 94 (1952). In _Kedroff_, the Court acknowledged the “power [of churches] to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” _Kedroff,_ 344 U.S. at 116; also see _Watson v. Jones_, 80 U.S. (13 Wall.) 679 (1872); _Gonzalez v. Roman Catholic Archbishop_, 280 U.S. 1 (1929); and _Serbian E. Orthodox Diocese v. Milivojevich_, 426 U.S. 696, 708-09 (1976).
Posted Thursday, January 12, 2012 9:54 PM By MacDonald
I have mixed feelings about this particular case. From what I’ve read, it seems that a teacher at a Lutheran school was out on disability leave, then was told they didn’t want her back when she was better: in fact, they informed her they had already hired a replacement. The Lutherans claimed she was not merely a teacher but a “minister,” thus getting around the law that would normally apply in such a case. She was NOT an ordained Lutheran pastor, however, so it seems to me that the church in question stretched the definition of “minister” in order to get rid of her because of her disability. If we tried this in our Catholic schools, I think we’d be in hot water for treating out teachers poorly and unjustly. “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,” the Supreme Court decided. Would we consider the teachers in our Catholic schools to be MINISTERS?
Posted Friday, January 13, 2012 12:37 PM By John F. Maguire
In reply to Mike: The First Amendment right to church autonomy is impatient of being “use[d]…to protect” ministers from criminal activity or subsequent apprehension. To quote Chief Justice John Roberts: “Hosanna-Tabor responds that the ministerial exception would NOT in any way bar criminal prosecutions for interfering with law enforcement investigations or other proceedings” (emphasis mine). So no, the First Amendment right to church autonomy is impatient of such abuse.
Posted Friday, January 13, 2012 1:15 PM By John F. Maguire
In reply to MacDonald: However unhappy the term minister, this term serves courts and parties as a term of legal art. If I am not mistaken, all federal courts of appeals that have addressed the First Amendment question of “ministerial exception” have accepted a “functional” definition of the term minister, that is, a definition that is keyed to service to religious purpose. Still, the issue you raise, MacDonald, is, as you suggest, highly problematic. In his concurring opinion, Justice Clarence Thomas discusses the difficulty at length: “I write separately to note that, in my view, the Religion Clauses require civil courts to apply the ministerial exception AND to defer to a religious organization’s GOOD-FAITH JUDGMENT of who qualifies as its minister” [emphases mine]. “A religious organization’s right to choose its ministers would be hollow…if secular courts could second-guess the organization’s sincere determination that a given employee is a ‘minister’ under the organization’s theological tenets. Our country’s religious landscape includes organizations with different leadership structures and doctrines that influence their conceptions of ministerial status. The question whether an employee is a minister is itself religious in nature, and the answer will vary widely. Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multi-factor analysis risk disadvantaging those religious groups whose beliefs, practices, and membership are outside of the ‘mainstream’ or unpalatable to some. Moreover, uncertainty about whether its ministerial designation will be rejected, and a corresponding fear of liability, may cause a religious group to conform its beliefs and practices regarding ‘ministers’ to the prevailing secular understanding. […] These are certainly dangers that the First Amendment was designed to guard against.”
Posted Friday, January 13, 2012 4:08 PM By John F. Maguire
In further reply to your post, MacDonald, specifically in reply to your question, “Would we consider the teachers in our Catholic schools to be ministers [as the courts define this term]?” I do not think the answer is as clear as it should be. We know this much: the lower courts agree that the ministerial exception applies not only to pastors of congregations, but to other employees who are important to the mission of the church. See _Coulee Catholic Schools v. Labor and Industry Review Commission_, 798 N.W. 2d 868 (Wisc. 2009) (teacher); _EEOC v. Roman Catholic Diocese_, 213 F.3d 795 (CA4 2000) at 804 (music director and teacher); _EEOC v. Catholic University_, 83 F.3d 455 (D.C. Cir. 1996) (canon law professor). MacDonald, what is needed from the courts, it seems to me, is greater clarity and stronger consensus on how far beyond pastors of congregations the ministerial exception extends.
Posted Friday, January 13, 2012 8:57 PM By John F. Maguire
How does John Carroll (1735-1815), the first Catholic bishop and archbishop in United States history, figure in Chief Justice John Roberts’ opinion for the Court in the case of _Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al._? Educated at the College of St.-Omer in French Flanders, John Carroll, after his ordination as a priest in the Society of Jesus, came to America to work as a missionary in Virginia and Maryland. Once the groundwork had been set, a local clergy, by a vote of 24 to 2, elected Carroll the first bishop of Baltimore, whereupon Pope Pius VI approved the election. ~ At this juncture, Chief Justice Roberts picks up the story: “[In 1806] … John Carroll, the first Catholic bishop in the United States, solicited the Executive’s opinion on who should be appointed to direct the affairs of the Catholic Church in the territory newly acquired by the Louisiana Purchase. After consulting President Jefferson, then-Secretary of State Madison responded that the selection of church ‘functionaries’ was an ‘entirely ecclesiastical’ matter left to the Church’s own judgment. Letter from James Madison to Bishop Carroll (Nov. 20, 1806), reprinted in 20 Records of the American Catholic Historical Society 63 (1909). The ‘scrupulous policy of the Constitution in guarding against a political interference with religious affairs,’ Madison explained, prevented the Government from rendering an opinion on the “selection of ecclesiastical individuals.”‘ Id., at 63-64.” The John Carroll story, I submit, is but one call-sign of the robust American tradition against State interference with the Church’s freedom to select her own personnel.