I’ve reported several times on a case in Maryland where a nurse at a Catholic nursing home sued her employer because it required her to dress in a way that conforms to Catholic teaching.  Last September the Fourth Circuit Court of Appeals agreed to hear this case, which is referred to as Kennedy v. Villa St. Catherine.  The federal appellate court took the case early in the litigation process because the trial court’s ruling resulted in the ironic determination that St. Catherine’s could have fired Ms. Kennedy for not being Catholic, but could not first ask her to simply conform her dress to Catholic teaching in an attempt to save her job. This created a huge loophole in the broad exception Congress made to Title VII that allows religious organizations the freedom to employ only those individuals that believe and act in accordance with the ministry’s teachings.

The great news is the Fourth Circuit issued an order on September 14, 2011 which affirms that St. Catherine and other ministries have the right to employ only those who agree with their religious teachings and apply them to their daily lives.  The Court said a contrary result would be “nonsensical,” reasoning that ”Kennedy admits that St. Catherine could fire her for her religion without any recourse. But, by first asking if she would consider changing her clothing before terminating her—i.e., by giving her the opportunity to keep her job—St. Catherine would suddenly open itself up to the strictures of Title VII. Such an approach cannot be squared with Congress’ desire in the first instance to permit a cooperative, accommodative approach to workplace discrimination.”

This is a fantastic result for religious freedom and church autonomy - the right of churches to operate without interference from the government.

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This bill is currently pending before Congress and could have a detrimental effect on the ability of churches to only hire individuals  that agree with their religious beliefs and live their lives accordingly.  If passed, ENDA would add “sexual orientation” to the list of characteristics upon which an employer cannot discriminate.  This is unlikely to have much direct effect on churches because Title VII allows religious organizations to discriminate on the basis of religion.  See Page 12 of our resource, Business With Conviction: Employer Religious Beliefs. But it could affect them indirectly if they have separate ministries such as schools or day care facilities that are not expressly religious and all employees are not required to subscribe to church doctrine.  A good summary of the potential implications of ENDA for churches written by Richard Hammar can be accessed here.  Well-crafted bylaws and employee handbooks will go a long way toward helping a church defend its ministries against this law, should it pass. Suggestions of what these documents should include can be found in our legal resource, “Job Descriptions & Religious Grounds for Limiting Employment” at speakupmovement.org/church.

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This fourth installment in our series on legal concerns affecting churches addresses governmental interference with church affairs. The church is the primary obstacle to attempts to erode the moral fiber of our country through things like same-sex “marriage.”  Efforts to penalize churches that take a stand for biblical morality take many forms, but all of them interfere with the autonomy of the Church.  For instance, we are representing a church that has a Christian school in Michigan in EEOC v. Hosanna-Tabor.  It has been sued over whether it can require teachers who are commissioned ministers to subscribe to church doctrine and act according to it. ADF recently became involved in this case when it was remanded for trial.  One of our allies, the Beckett Fund, is representing the school before the U.S. Supreme Court.

There are steps churches can take to make sure they have the ability to hire only those individuals that agree with their religious teachings.  Churches should seek legal advice in drafting bylaws and employee handbooks so that their policies are as defensible as possible in the event of a lawsuit.  A good place for churches to start is our legal resource, “Internal Affairs FAQs” at speakupmovement.org/church.

Last week, I discussed attempts by local governments to make churches pay property taxes. But property isn’t the only thing they’re trying to tax.  Cash strapped municipalities are also starting to assess churches with “fees” that are really just taxes in disguise.  While these “fees” often start out as very low cost, any attempt to tax churches has profound implications for church sovereignty and religious freedom.  We are currently representing two churches in Mission Baptist Church v. Mission, Kansas, which have been assessed what amounts to a driveway tax.  It is calculated based on the number of people who attend the church.  Churches should actively oppose any new proposed laws that would attempt to tax churches with “fees” or otherwise.  They should encourage other religious groups in the area to join them.  If the law passes anyway, churches should consult with ADF or another legal group to determine if it is susceptible to legal challenge.

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April 1 wasn’t a Fool’s Day for religious freedom in Kentucky.  In Nelson v. Baker, the Court of Appeals soundly rejected a claim by former members of First Baptist Church of Jeffersontown, Kentucky who sued for the right to access the church’s financial information.  It is foolish for believers to sue one another despite the Bible’s clear admonition not to in I Cor. 6:7. But that’s a different, more fundamental, matter I’ll get to in a second. 

The good news is the court wasn’t fooled by an attempt to characterize access to church financial information as a completely secular matter. Courts have long held that the First Amendment protects churches from interference from government officials in the areas of doctrine, membership, policy, and interaction with its pastors.  You can find a detailed analysis of this area of the law - often referred to as “Church Autonomy” – on our resource page in a document titled  Church Autonomy White Paper – Protecting Churches From Government Interference.

The Kentucky Court of Appeals rightly applied this law and found that determining who gets access to financial documents is one of  the things churches can decide for themselves. It held: ”The Church’s financial records and method of presentation to the congregation are clearly matters of internal governance and organization, and are, therefore, not subject to interference by the court.” The court’s refusal to encroach upon church autonomy is a reminder that the best way for the government to avoid establishing a religion in violation of the First Amendment is to leave churches alone.

The court’s decision also reminds us that church members should stop foolishly attempting to drag courts into the realm of religion by filing lawsuits against their own church body.  The Apostle Paul wisely advised in I Cor. 6:1-6, “If any of you has  a dispute with another, dare he take it before the ungodly for judgment instead of before the saints? …[I]f you have disputes about such matters, appoint as judges even men of little account in the church!  I say this to shame you.  Is it possible that there is nobody among you wise enough to judge a dispute between believers? But instead, one brother goes to law against another – and this in front of unbelievers!” 

Lawsuits like this make the whole Body of Christ look foolish.

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