If you’ve ever watched “Leave it to Beaver” re-reruns, you know that Beaver, the young star of the show, was always getting hassled by his older brother’s friend, Eddie Haskell.  Eddie was the neighborhood smart-mouth.  When the abuse became unbearable, the Beaver would say something like this, “Gee Dad, Eddie’s giving me the business again.”

That’s exactly what the Sixth Circuit did to a church’s religious school in the EEOC v. Hosanna-Tabor case last year.  It didn’t just give churches the business, it got the government involved in their business when it ruled the school could not fire one of its teachers for threatening to sue them.  The teacher was a commissioned minister in the church and tasked with teaching church doctrine to students, not only by leading daily devotions, but also by infusing every subject with a biblical worldview.  When she threatened to sue the religious school over an employment dispute, the church revoked her status as a minister and let her go.  The church and its school observe the New Testament admonition that Christians should not bring their disputes before secular judges. (As I demonstrated in a recent blog,such suits among believers are not only unbiblical, they are foolish).  More details on the Hosanna-Tabor case and a copy of the Sixth Circuit opinion are available here.

Courts have long kept out of employment decisions made by religious organizations regarding their ministers.  The doctrine is called the “ministerial exception” and it’s rooted in the idea that a secular court isn’t equipped to review a spiritual decision by a religious organization regarding individuals charged with communicating theology to others.  One of the clear reasons for the First Amendment’s Establishment Clause is to keep the government from entangling itself in church affairs.  As Professor Carl Esbeck often says, “the government doesn’t establish religion by leaving it alone.”  But the Sixth Circuit ignored these well-established principles when it determined that, even though the teacher was tasked with inculcating religious principles into students throughout the day, she also taught secular subjects like history and science.  ”Everyone” knows a biblical worldview is not important in these types of subjects, and there are no religious principles to be learned!

The good news is the U.S. Supreme Court has agreed to review the Sixth Circuit’s decision this year.  It will be the first time the Court has directly ruled on the ministerial exception, which is widely recognized by lower courts.  This will likely have significant ramifications for all churches so please be in prayer for this case.  ADF recently became involved in this case at the trial level, and one of our allies, the Beckett Fund, is representing the school before the U.S. Supreme Court.  We will continue to work to help the Court come to a decision that protects religious freedom and keeps the government out of the business of churches.

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It was exactly one year ago that a Wisconsin federal court incredibly ruled that our 200 year practice of praying together as a nation is unconstitutional by striking down the statute establishing the National Day of Prayer. But on April 14, 2011, the day before the anniversary of that troubling ruling, the Seventh Circuit Court of Appeals reversed it in a fantastic opinion holding that the anti-religious Freedom From Religion Foundation should not have been allowed past the courthouse gate because they suffered no legal injury.

Voting 3-0, the Seventh Circuit held that FFRF doesn’t have standing to even challenge the NDOP.  Chief Judge Easterbrook, a very prominent and nationally respected judge, wrote the opinion and said that “offense at the behavior of the government, and a desire to have public officials comply with (plantiffs’ view) of the Constitution, differs from a legal injury.”   Without a legal injury, plaintiffs can’t sue, and merely being offended isn’t enough.  The court went on to say, “the ‘psychological consequence presumably produced by observation of conduct with which one disagrees’ is not an ‘injury’ for the purpose of standing….  Plaintiffs have not altered their conduct one whit or incurred any cost in time or money.  All they have is disagreement with the President’s action.  But unless all limits on standing are to be abandoned, a feeling of alienation cannot suffice as injury in fact.”  Even the judge that was most sympathetic to the FFRF at oral argument said they didn’t have standing because  ”the observation of conduct with which [they] disagree …was insufficient to confer standing.”

So the only court to ever hold that the statute directing the president to issue a prayer proclamation on the first Thursday in May was unconstitutional has now been reversed.  Of course, the folks at FFRF have vowed to ask all of the judges at the Seventh Circuit to review this ruling in a petition for rehearing en banc. And they will likely petition the Supreme Court to hear the case if that fails.  But their chances of success are slim given the unanimous ruling and the seniority of Chief Judge Easterbrook.

This ruling adds to the list of recent setbacks for anti-religious forces in America in Establishment Clause cases.  It reflects a trend of restricting the requirements of standing in these cases as demonstrated in Hein v. Freedom From Religion Foundation  (no standing to challenge President Bush’s faith-based initiative), and ACSTO v. Winn (no standing to challenge tax credits for school choice).

What a great day for religious freedom and our nation’s heritage.

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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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ADF Senior Counsel Brett Harvey writes:

Gazing across the street at Independence Hall in Philadelphia, I was struck by the irony.  It was an overcast January day as the city was digging out from a snow storm.  To quickly glance at the clock tower of this landmark was to see the spire shining brightly against a pale blue sky.  However, upon closer inspection the illusion was revealed.  I wasn’t looking at the building at all; rather I was staring at an image of the building printed on a tarp used to cover the scaffolding that surrounded the clock tower.  Independence Hall was being “updated” behind the facade.

Where is the irony?  It was ironic because I was in Philadelphia to witness an attempt to “update” another American icon, the U.S. Constitution.   Ironic because across the street, between the National Constitution Center and Independence Hall sits the federal courthouse where the 3^rd Circuit Court of Appeals heard oral arguments about the constitutionality of opening a public meeting with a prayer.  Ironic that such a challenge would be heard within earshot of the Liberty Bell.

 It was on September 7, 1774, in Philadelphia that the First Continental Congress opened with a prayer delivered by the Rev. Jacob Duché.  Not even two years later the Continental Congress stepped out of Independence Hall and declared that we citizens have inalienable rights endowed by our Creator.  Ironic that the first congress, in 1789, finalized the language of the First Amendment just three days after they authorized the appointment of paid chaplains to deliver prayers before each session of congress, and now the court is deciding whether that same First Amendment prevents a school board from opening its meeting with a prayer.

The irony would be amusing if the consequences were not so grave.  Unfortunately, this is not an isolated incident.  Right now, three of the eleven Federal Circuit Courts of Appeals, have pending challenges to the historic American tradition of opening public meetings in prayer.  The next 12 to 18 months may well shape the future of public invocations.

In 1983 the U.S. Supreme Court pointed to the history of this nation and ruled that prayers given before the Nebraska Legislature were entirely constitutional, even though the state had paid the same chaplain to make expressly Christian prayers for more than a decade.  It is the only time the Supreme Court has directly considered the validity of prayer before public meetings.  If all three appellate courts allow invocations to be given consistent with the dictates of the prayer giver’s conscience, this historic tradition will be safe – for now.  But if the courts split or decide that the government needs to dictate the content of prayer, this legal issue will be ripe for review once again by the Supreme Court.

The most recent federal appellate court to take up the issue did so in 2008.  In that case, the 11^th Circuit determined that prayer givers were free to pray as their conscience leads them.  However, if the secularists who brought suit in the 2^nd and 4^th Circuits get their way, the government will be forced to censor invocations and dictate what constitutes an acceptable prayer.  Ironically, if the courts come to that conclusion, local governmental bodies will not even be permitted to recite the prayer uttered by Rev. Duché at the First Continental Congress because it will be considered “too Christian” and, therefore, unconstitutional.  If the atheists succeed in the 3^rd Circuit, the school board will be forced to abandoned the time honored tradition altogether.

  Despite clear historical and legal precedent, the legal fight continues.  Recently states, counties, and towns across the U.S. have received letters from activists groups like the ACLU and Freedom from Religion Foundation demanding that invocations before public meetings be stopped or censored.  This campaign of fear and intimidation has made an impact.  In January the Senate for the State of Hawaii abandoned public invocations after being intimidated with the threat of a lawsuit.  The Senate correctly reasoned that they shouldn’t try to control how people pray.  However, they then took a wrong turn and concluded the only way to protect the speech rights of invocation speakers was to silence them.

 The arguments and demands in activists’ letters are like the image draped on the scaffolding of Independence Hall.  At first blush, their arguments appear to be constitutional, but a closer inspection reveals they are a mere facade, intent on hiding the work being done to reshape an American icon.  Beware!  They are not simply restructuring a historical artifact made of brick and mortar; they are attacking the very foundation upon which this country was founded.

As I left the courthouse that day, I walked past the image of Independence Hall and stopped for a moment before a statue commemorating religious liberty.  Hopefully, the memorial is not simply a reference to a former day, but a reminder of how important religious liberty is and why we need to be ever vigilant against those opposing forces that would destroy it.

• - Know the history of the Constitution so you will not be fooled by a facade that simply resembles this foundational document. 

• - Be alert!  If a government body in your area is challenged to censor prayer or abandon the practice of opening public meetings with prayer, call the Alliance Defense Fund at 1-800-TELL-ADF or fill out the online legal request form.

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I always find it amusing to read the blogs put out by Americans United for Separation of Church and State, the radically secularist organization.  The blog posts are so full of cliche and fantasy, that it strains credulity to try and believe them.  The most recent “contribution” to the hyperbolic musings of the AU blog was this little piece that trumpeted that ADF has now “converted” to AU’s position, and now believes that “separation of church and state” is in the Constitution.  AU claims that, “The Alliance Defense Fund has suddenly become an ardent supporter of church-state separation.” Well, let me state in no uncertain terms that AU is dead wrong.

ADF has not suddenly “converted” and is certainly not joining with AU in its march to radically secularize society.  No, ADF does not believe that the phrase “separation of church and state” is in the Constitution.  And anyone with a modicum of reading ability can read the Constitution and know that the phrase does not appear anywhere in the text.  And, lest there be any doubt on the issue, ADF stands in complete opposition to virtually everything espoused by AU and its philosophy.

Let me tell you how this all happened.  ADF filed a lawsuit against the Town of Mission, Kansas, over its driveway tax.  The basic gist of the lawsuit is that the newly-instituted driveway tax is a property tax in disguise and thus churches should be considered exempt.  The City of Mission, however, is calling the tax a “fee” and is charging churches in order to subvert the property tax exemption for churches.

Since the lawsuit was filed, I have given a number of interviews on the case, including the interview cited by AU with Religion News Service where I was quoted as saying, “It makes no sense to tax churches and to limit their ability to provide their services, and it does damage to the constitutional separation between church and state.”  AU seized on this quote to argue that ADF had suddenly converted to believing in the “separation of church and state.”

First, AU never checked to make sure that I was quoted accurately.  And anyone who reads news stories, or has ever been quoted in them, knows that sometimes a correct sense of what the interviewee was trying to convey is not contained in one quote.  That’s certainly the case here where I was definitely not intending to convey that the Constitution contains a “separation of church and state.”

The quote I made was in the context of a larger argument about the fact that there is a proper understanding that church and state should be separate in some ways.  This is a view that ADF has always adhered to and fought for (which is also Jefferson’s view), that the state is prohibited from in any way attempting to control churches.  Jefferson’s “wall” metaphor was intended to protect churches from intrusion and control by the state.  In fact, in the very next paragraph, the article states, “He acknowledges that church-state separation is generally not an argument made by his conservative Christian law firm; but in this instance, he says “there should be a separation here.”

What I was trying to convey (perhaps not as articulately as I could have) is that specifically as it relates to taxation, churches should not be taxed by the state. There should be a separation there that recognizes the sovereignty of the church in matters of religion and that prohibits the state from attempting to exert its sovereignty over the church in a manner that could destroy the free exercise of religion.  The Supreme Court has stated before that the power to tax involves the power to destroy.  Thus, when the government exerts its power to tax churches, it can also exert its power to destroy them.  That’s not the free exercise of religion no matter how you look at it.  It is in this context that the state should remain “separate” from churches.

So there is a proper way to understand that state and church should be separate, but it is not AU’s twisted view of that phrase which seeks to silence pastors and churches, rewrite America’s history, and radically reinterpret the Constitution to remove all religion from the public square.  AU’s construction of the “wall between church and state” is meant to snuff out the voice of faith from the public square.  There are literally scores of cases where AU has demanded that the sword of the state be brought to the necks of people and institutions of faith.  Let’s remember that AU is committed to state-controlled churches, no Ten Commandments in public buildings, no high school graduation ceremonies in church buildings, no prayers before legislative assemblies, and not even allowing students to have a moment of silence before the school day because they “might” choose to pray.   These, and many other things AU is committed to, serve only to usher in a radically secularized America that is completely at odds with our foundational principles and the Constitution itself.

AU’s attempt to paint ADF as converting to its position is pure theatrics without any substance – it serves only to evoke the reaction I had when I read their claim – laughter.

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