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There’s been quite a bit of talk recently about ObamaCare and the federal regulation requiring employer health care plans to pay for abortion inducing drugs, as well as contraception and sterilization. The good news is churches are exempt from this requirement. The bad news is some and many church ministries and para-church organizations will be required to provide things like abortion-inducing drugs to their employees – even if it conflicts with the religious beliefs and teachings of the ministry. Any non-church ministry that provides services to people of other faiths (instead of just those who agree with their religious beliefs) will be subject to this requirement. Those who offer insurance that does not comply with ObamaCare will be fined $100 per employee per day.  And those who drop insurance coverage altogether will be subjected to fines of approximately $2,000 per employee, per year. This is effectively a Conscience Tax.

Obviously, many faith-based schools, food pantries, hospitals, and other community service organizations are threatened by this disregard for religious freedom because they minister to everyone. Some commentators have opined that this isn’t a very big deal, and is just about making sure women have access to contraception. But if the federal government can force these ministries to act in a way that is completely contrary to their religious beliefs, they can tax all of us when we act according to our religious convictions by doing such things as refusing to participate in abortions, objecting to sexual immorality, or raising our children according to our faith.

Pastors need to be very aware of how this new mandate will affect all aspects of their ministry, as well as the lives and businesses of their parishioners. You can learn more about it here. And if you have any questions at all, please feel free to contact us here at ADF by logging on to, or calling us at 1-800-TellADF.

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ADF Senior Counsel - Church Project

Back in 1990, the Supreme Court decided that laws prohibiting use of the hallucinogenic drug peyote did not violate the freedom of religion of Native Americans who ingested it as part of their religious ceremonies. Many outside of the legal community thought this was the right result because of concerns that drug abusers might pretend to have religious beliefs in an attempt to circumvent bans on illegal drugs. But most religious freedom lawyers were very concerned about this case (Employment Division, Dept. of Human Services of Oregon v. Smith) because of the rationale the court used to justify its decision. In brief, the Court determined that as long as a law neutrally applies to everyone, the fact that it doesn’t make exceptions for religious people or churches doesn’t violate the Constitution – even though the law may prohibit them from doing something their religious beliefs require.

This rationale seems to work fine in extreme cases like use of illegal drugs or human sacrifice. But it would also allow local governments to prohibit use of wine for communion if alcohol consumption was outlawed in a particular town or county. A neutral law could even require a church to refrain from discriminating based on sex when hiring clergy members.

So when a Christian school in Redford, Michigan fired a teacher who was a commissioned minister, the federal government sued the church. (You can learn more about the facts of the EEOC v. Hosanna-Tabor Church case here). Government lawyers argued that a Christian school is no different than any other community group like the Lions Club or Jaycees. And as long as laws prohibiting discrimination based on disability or some other protected class neutrally apply to everyone, the fact that the Christian school is also bound by them doesn’t violate that school’s religious freedom. The federal government relied on the Smith peyote case to support its position, and a court of appeals in Cincinnati agreed.

But the Supreme Court reversed that opinion in a remarkable 9-0 decision. It severely limited the holding in Smith and said that even a neutral law violates the religious freedom of a parochial school if it results in “government interference with an internal church decision that affects the faith and mission of the church itself.” Because the Christian school in that case treated its teachers as ministers responsible for the spiritual health of students, the government could not apply laws prohibiting discrimination to the school. Doing so would have affected the faith and mission of the church itself.

This is a very positive development for religious freedom and churches. Government officials have increasingly subjected churches and their various ministries such as schools, daycares, and homeless outreaches to more and more restrictions. They’ve attempted to enforce secular laws against churches in an effort to interfere with how they carry out their religious mission, who is responsible for doing so, and whom they will serve. For instance, a local government sued a religious homeless shelter in Idaho because it required those taking advantage of its free services to attend Bible studies and other religious activities. And New Jersey government officials are attempting force a church to allow its facilities to be used for same-sex “marriage” ceremonies.

Till now, government officials have relied on the Smith peyote case to support restriction of freedom because the laws they are enforcing neutrally apply to everyone. They can no longer do that now that the Supreme Court has handed down the Hosanna-Tabor decision. Any law that interferes with a church’s internal decisions about its faith and mission is unconstitutional as applied to that church. If your church is being subjected to enforcement of such a law, contact us here at the Alliance Defense Fund – 1-800-TellADF, or


ADF Senior Counsel - Church Project

I recently explained the importance of the Supreme Court’s decision affirming a church’s right to control whom it employs as a teacher in its religious school in a post you can read here. Unfortunately, the vital protection this case provides for religious freedom has largely been lost on the mainstream media. Instead, they’ve often focused on how this decision may affect teachers at religious schools. One AP article went so far as to assert that a teacher of Jewish Studies at a Jewish school should be seen as a “teacher whose subject is religion, not a religious teacher.” In the context of a religious school, this is completely at odds with the concept of religious freedom.

The Court of Appeals in the Hosanna-Tabor case made a similar argument (which was thankfully rejected by the Supreme Court). It opined that the teacher who sued the religious school wasn’t a minister because she spent six hours a day teaching secular subjects like math, social studies, and music.  Only an hour or so was spent on exclusively religious instruction. The fact that the teacher also lead weekly chapel services, taught a 30-minute religion class four days per week, lead prayer three times per day, and taught a morning devotional was considered to be largely irrelevant.  So the school was prohibited from firing the teacher, even though she violated church teachings regarding mediation of disputes among believers.

The appeals court (and the Associated Press) failed to recognize something even Christians sometimes forget – our biblical worldview and Christian principles affect all aspects of our lives.  That certainly includes how we teach our children all subjects – even those that don’t appear to be “religious” – such as music and social studies.  It even includes math, as demonstrated by the great mathematicians Sir Isaac Newton and Rene Descartes. And it certainly includes religious classes like Jewish Studies at a religious school that has as its purpose inculcating the religious theology and values of a particular religion.

Saying the Hosanna-Tabor case undermines the rights of teachers is like saying the desegregation case Brown v. Board of Education wrongly ignored the rights of teachers who wanted to only teach certain kids. The larger, more important, principle of elimination of racism – or protection of religious freedom in this case – is being missed. Thankfully, all nine Justices of the Supreme Court aren’t influenced by the misguided opinions of the Associated Press.


ADF Senior Counsel - Church Project

The Supreme Court just handed down a fantastic ruling affirming the right of churches to employ only those individuals that share their beliefs and live their lives according to the teaching of the church. As you may have read in previous posts here and here, a church school in Redford, Michigan, was dealt a blow to its independence from government control by the U.S. Court of Appeals for the Sixth Circuit in 2010.  Hosanna-Tabor is affiliated with the Lutheran Church-Missouri Synod, and operated a church and school.  All the school teachers lead weekly chapel services, taught a 30-minute religion class four days per week, lead prayer three times per day, and taught a morning devotional.  In fact, many of the teachers were commissioned as ministers.  So when a teacher threatened to sue the church in violation of church doctrine, the church naturally believed that it had the freedom to dismiss her from employment. Lower courts have long recognized the “ministerial exception,” which prohibits government from getting involved in the relationship between a religious organization and its ministers – though the Supreme Court has never officially acknowledged this exception till now.

The Sixth Circuit didn’t apply the exception because it found the teacher in question was not really a minister.  The court said she wasn’t a minister because she spent six hours a day teaching secular subjects like math, social studies, and music.  Only an hour or so was spent on exclusively religious instruction.  So the school was prohibited from firing the teacher, even though she violated church teachings regarding mediation of disputes among believers.

Thankfully the Supreme Court rejected this wrongheaded idea that someone tasked with teaching the religious principles of the church doesn’t really represent the church’s views unless they are specifically teaching a religion class. The Court said that the question of whether a church employee that undertakes both religious and sometimes secular duties is in fact a minister “is not one that can be resolved with a stopwatch.” In other words, courts have no business telling a church who it can employ as a minister by getting into the minutia of that employee’s daily tasks.

The Court held that both the Free Exercise and Establishment Clauses of the First Amendment “bar the government from interfering with the decision of a religious group to fire one of its ministers.” And “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”

The Supreme Court was right to conclude that the government cannot contradict a church’s determination of who can act as its ministers.  This clearly reflects the heart of the original intent of the religion clauses of the First Amendment.  ADF has been pleased to represent the church and school in the trial court since the Sixth Circuit handed down its opinion, and we commend The Becket Fund for its excellent work representing them before the Supreme Court.


ADF Senior Counsel - Church Project

Ken Hutcherson, pastor of Antioch Baptist Church in Redmond, Washington, reportedly took a stand against the Washington governor’s recent efforts to legalize same-sex “marriage,” stating:  ”As long as the Bible says it’s wrong, I’m going to fight against it like it’s the last thing I can do. It’s no different than any other sin. If someone walked around and said ‘We want to be a minority because we are divorcees,’ I would fight that just as much.” He believes that if the proponents of the new law succeed, it will profoundly restrict religious freedom, and he’s right.

Proponents of same-sex “marriage” have the ultimate goal of sexual choices being treated the same as race. In other words, they think criticizing someone for engaging in homosexual behavior should be viewed the same as criticizing someone for being Black. The religious freedom implications for this change in the law would be striking. For instance, Title VII protects religious organizations by allowing them to discriminate based on religion when it comes to hiring staff. This exemption makes sense because no one would argue a Catholic school should hire an Atheist to teach religion. But that religious exemption doesn’t apply to discrimination based on race. If the proponents of same-sex marriage are successful in elevating sexual orientation discrimination to the same level as race discrimination, religious organizations that teach biblical truth about sexuality may be forced to hire individuals who engage in homosexual behavior  for some leadership positions like teachers. (You can read more about how the homosexual legal agenda could affect religious freedom here and here.)

Pastor Hutcherson is to be commended for being willing to take a stand that may be politically incorrect, and the foresight to understand the homosexual agenda’s negative implications for religious freedom. We need more religious leaders like him.



ADF Senior Counsel - Church Project

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