Posts tagged with: First Amendment to the U.S. Constitution

Rise-and-DeclineThere is an informative podcast on a new book titled The Rise and Decline of American Religious Freedom over at the Library of Law and Liberty. The author, Steven D. Smith, is the Warren Distinguished Professor of Law, University of San Diego and Co-Executive Director of the USD Institute for Law and Religion. Smith challenges the popular notion that American religious freedom was merely an enlightenment revolt from European Christendom and was meant to uplift a secular interpretation of the First Amendment.

Smith will be a guest writer over at their blog for the month of July. Below is an excerpt from the description of the podcast:

Our conversation begins with the history of the ratification of the First Amendment. What do we make of the fact that the religion clauses were scarcely debated in the Congress that approved them? Smith argues that this should dissolve any notion that a grand constitutional moment occurred and that gave us the religion clauses as “articles of faith” in secularism. We discuss Smith’s view that the lack of debate owed to an existing consensus that wanted to prevent the national government establishing a national church while the states would continue their established churches, in some cases, and other lesser forms of religious influence in their laws. Contrary, Smith argues, to a national standard of religious freedom or secularism, the constitutional course was “contestation” or an ongoing conflict between religious and secular claims. Thus the Court’s separationist jurisprudence of mid twentieth century, Smith discusses, was a departure from original understanding of religious liberty and its practice for most of our history.

Smith also discusses and disputes the view that American religious freedom is an outcome of the Enlightenment. His controversial claim is that it is a recovery of a key concept of Western civilization, freedom of the church, and, its later Protestant development, freedom of the “inner church” or conscience. Recovery is here stressed because it was modern political development, Smith notes, that had subordinated the church to the state and to be stripped of institutional freedom.

Listen to the podcast:

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A quick news and analysis digest here on the Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission ruling by the Supreme Court yesterday. Congratulations and thank you to the Becket Fund. To watch a two-hour Federalist Society panel discussion recorded in November on what is informally known as the Ministerial Exception case, visit YouTube.

Beckett Fund: Supreme Court Sides with Church 9-0 in Landmark First Amendment Ruling — Becket Fund wins greatest Supreme Court religious liberty decision in decades

The unanimous decision adopted the Becket Fund’s arguments, saying that religious groups should be free from government interference when they choose their leaders. The church, Hosanna-Tabor, was represented by The Becket Fund for Religious Liberty and Professor Douglas Laycock, University of Virginia Law School. For years, churches have relied on a “ministerial exception” which protects them from employment discrimination lawsuits by their ministers.

“The message of today’s opinion is clear: The government can’t tell a church who should be teaching its religious message,” said Luke Goodrich, Deputy National Litigation Director at The Becket Fund for Religious Liberty. “This is a huge victory for religious freedom and a rebuke to the government, which was trying to regulate how churches select their ministers.”

The Court rejected the government’s extremely narrow understanding of the constitutional protection for religious liberty, stating: “We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

“This is a huge win for religious liberty,” said Professor Doug Laycock.  “The Court has unanimously confirmed the right of churches to select their own ministers and religious leaders.”

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Douglas Laycock, CNN:
Huge win for religious liberty at the Supreme Court

(CNN) – Wednesday’s Supreme Court decision holding that ministers cannot sue their churches for employment discrimination was a huge win for religious liberty. It was unanimous, it was sweeping and it was unqualified.

This decision was about separation of church and state in its most fundamental sense. Churches do not run the government, select government leaders, or set criteria for choosing government leaders.

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Emily Belz, WORLD: Church’s authority ‘alone’

The high court has never ruled on the ministerial exception before, a standard created in the lower courts, and the opinion shied away from defining who qualifies as a “minister,” saying simply that the teacher in question, a commissioned minister at the Lutheran church school, qualified.

“We are reluctant … to adopt a rigid formula for deciding when an employee qualifies as a minister,” Roberts wrote in the decision. Kagan and Alito, in their concurring opinion, wrote that the “title” of minister “is neither necessary nor sufficient,” given the variety of religions in the United States, but rather courts must defer to the religious organization’s evaluation of the employee’s role.

The 6th U.S. Circuit Court of Appeals had ruled in favor of the teacher, saying she did not qualify as a minister because she spent more minutes of the day teaching secular subjects than religious subjects. The Supreme Court scoffed at that idea. “The issue before us … is not one that can be resolved by a stopwatch,” Roberts wrote.

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Matthew J. Franck, First Things: What Comes After Hosanna-Tabor

There may be a straw in the wind in yesterday’s ruling, with respect to the Obama administration’s determination to compel the coverage of contraceptive and abortifacient drugs in health insurance policies, even ones for religious institutions. The only “religious exception” offered so far by the Department of Health and Human Services to its contraceptive coverage mandate is an exemption so narrow, for religious organizations that employ and serve only their own co-religionists, that even the ministry of Jesus would not qualify. It is as though the Obama administration is staffed by people who have never encountered the ministry to the world that is so common among religious folk—especially but not uniquely among Christians.

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Mark L. Rienzi, National Catholic Register: Religious Liberty 9, President Obama 0

Such an emphatic rejection of the administration’s crabbed view of religious liberty is likely to have broader consequences. The administration has aggressively used its narrow view of religious liberty in other contexts. For example, when issuing recent regulations to require all employers to pay for contraceptives, sterilizations and drugs that likely cause abortions, the administration issued the narrowest conscience clause in history — one that would exclude a Catholic hospital simply because it is willing to serve Jewish patients.

When attempting to explain its historically narrow protection for conscience, the administration echoed its arguments from the Hosanna-Tabor case, saying the clause is only meant to protect a church from being forced to offer the drugs to employees in “certain religious positions.” The administration argued that its clause sought only to protect “the unique relationship between a house of worship and its employees in ministerial positions.” Given the government’s stingy view of who counts as “ministerial,” it is clear the administration does not think the First Amendment provides much protection for religion.

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Thomas Messner, Heritage Foundation: Supreme Court Decision in Hosanna-Tabor a Major Win for Religious Freedom

First, the ruling unambiguously affirms the vital constitutional doctrine known as the “ministerial exception.”

Second, the Court expressly agreed with every federal court of appeals to have considered the question that the ministerial exception “is not limited to the head of a religious congregation.”

Third, the Court clarified that the protections of the ministerial exception are not limited to cases where a religious group fires a minister only for a religious reason.

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Thomas Berg, Mirror of Justice: More on Hosanna-Tabor

… although the majority is case-specific on who counts as a minister, three justices–including Elena Kagan!–endorse a broader definition.  Thomas would defer heavily to the religious organization’s characterization of an employee as a minister.  And Alito and Kagan say that ordained or “commissioned” status isn’t crucial, that the question is about religiously-significant functions (listing several of them), and that “the constitutional protection of religious teachers is not somehow diminished when they take on secular functions in addition to their religious ones.

What matters is that respondent played an important role as an instrument of her church’s religious message and as a leader of its worship activities.” (Concurrence at 8)  I can imagine imagine teachers in many Christian schools satisfying that test, and also many employees in many religious social services who explicitly communicate religious messages along with the services they provide.  With three justices explicitly taking the broader approach, all you need is a couple more (Roberts and Scalia, most likely) for a majority.  Hosanna-Tabor doesn’t give us a full-fledged broad definition for a “minister,” but it makes the route to such a definition much easier.

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Wall Street Journal editorial: Hosannas for the Court

As in so many of its policies, the Obama Administration’s position reflected both its default preference for government control and its secular indifference to American religious sensibilities. This has become obvious in the contraceptive and surgical sterilization mandates the Administration is trying to impose on Catholic charities and hospitals. In this case the Justice Department’s opinion was so radical that it might have provoked the broad and unanimous Court ruling.

Hosanna-Tabor is an important reminder that the core religious freedoms guarded by the First Amendment were not to protect the public from religion, but to protect religion from government. The case is arguably among the most important religious liberty cases in a half century, and the concurrence of Justices across the ideological spectrum will be felt for years. Hallelujah.

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