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.

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.

On December 12, Judge Silver, a federal judge in Arizona, threw out a claim that Arizona Governor Jan Brewer violated the Establishment Clause by issuing day of prayer proclamations in observance of the National Day of Prayer. The court cited the Seventh Circuit’s recent ruling in FFRF v. Obama, saying “hurt feelings” don’t give someone standing to bring a federal case. The Court also said that no constitutional injury results from plaintiffs getting up to turn off the TV or avoiding conversations with people because they don’t want to hear about the prayer proclamations.

Judge Silver got it exactly right. The Establishment Clause doesn’t give anti-religionists license to roam the country or channel surf looking for things to be offended by, and then making a federal case out of them. There is no right not to be offended in America. This decision, like the Seventh Circuit’s decision in FFRF v. Obama in which ADF represented Mrs. Dobson and the National Day of Prayer Task Force, is another very important step in limiting the ability of anti-religion activist groups like FFRF to harass state and local government officials who simply want to acknowledge our nation’s religious heritage. These groups often use lawsuits and the attorney fees that come with them as a vehicle to intimidate government officials into silence about their own religious beliefs, as well as those of our Founding Fathers and the vast majority of present day Americans.

Certainly the government cannot tell people how, and to whom, to pray. But a long line of government officials like George Washington, Abraham Lincoln, Franklin Delano Roosevelt, and Ronald Reagan have encouraged people to pray because they believed it is helpful to our country and rightly acknowledges our religious heritage. Our Founders even had prayer at the Constitutional Convention. The Constitution was never meant to be used to censor this practice, and courts shouldn’t misinterpret it to do so now.

Kudos to Judge Silver for getting this one right, and to Governor Brewer for standing against special interest groups bent on silencing her and eradicating religion from all public acknowledgement.

For many years, U.S. Senate Finance Committee member Charles Grassley (R-IA), has been looking into the financial practices of large media-based Christian ministries. Although he has not yet proposed any new laws that would govern how ministries report and manage their finances, in January he asked the ECFA
(Evangelical Council for Financial Accountability) to create a commission that will make recommendations about how ministries can be more fiscally accountable.  The ECFA has indicated that it will look into issues such as whether churches should be required to file detailed information returns (990s), the housing allowance, and tax rules governing “love offerings.”  It has also indicated that it hopes to address these issues through self-regulation rather than legislation.

You can learn more about the issues the commission will address here. Also, ADF’s own Erik Stanley has been asked to serve on an advisory panel for the commission in view of his legal expertise in the area of churches and politics. We will continue to keep you updated on the work on the work of the commission.  In the mean time, the best way for churches to minimize risk of running afoul of current or future regulations is to become a member of a financial accountability organization such as ECFA.

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The long standing tax provision that permits churches to provide pastors with a non-taxable housing allowance was recently challenged in the case Freedom from Religion Foundation v. Geitner in a California federal court. The radical group that filed the lawsuit voluntarily dismissed it after the Supreme Court handed down its decision in ACSTO v. Winn  – an ADF case that severely restricts the ability of anti-religious organizations to challenge government programs that acknowledge the autonomy of religious organizations and the benefits they provide our communities.

But the atheist organization filed another lawsuit challenging the housing allowance in the federal court in Wisconsin on September 17, 2011. We at the ADF Church Project are monitoring that case closely and will move to intervene if the Department of Justice does not vigorously defend this important acknowledgment of the value of churches and pastors. Critics of the housing allowance ignore the unique benefits that churches provide communities. For instance, a Baylor University study found that kids attending church in low income neighborhoods have a better chance of staying in school and succeeding academically.  Another study concludes that “Churches and religious groups offer a vast array of services to their local communities …that sometimes are not being provided elsewhere, such as [a]fter-school programs, refugee resettlement, homeless shelters, [and] food banks….”

ADF has church clients that spend all their money on programs and do not even pay their pastors a salary. The only way the pastor of these  small congregations can afford to minister at the church is by taking advantage the housing allowance. Striking it down would not only be a blow to these pastors, but to our communities at large because it will reduce the ability of churches to continue to help the poor and disadvantaged in ways no one else is doing.

Churches can continue to provide  pastors with non-taxable housing allowances, but they should watch for updates on this case that attempts to limit the effectiveness of churches in our country.

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