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.

Most would agree that a church should be able to open a school to ensure that its children get an education that conforms with its religious teachings.  It follows that a church should be able to employ only those teachers who actually agree with its religious principles and apply them to their lives.  But this important aspect of religious freedom is now under attack, and its fate rests in the hands of the U.S. Supreme Court.

Last year, 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.  Hosanna-Tabor is affiliated with the Lutheran Church-Missouri Synod, and operates a church and school.  All the school teachers lead weekly chapel services, teach a 30-minute religion class four days per week, lead prayer three times per day, and teach a morning devotional.  In fact, most of the teachers are commissioned as ministers.  So when an issue came up that prompted the church to dismiss one of its teachers, the church naturally believed that a “ministerial exception” would apply.

Courts have long recognized the “ministerial exception,” which prohibits courts from getting involved in the relationship between a religious organization and its ministers.  This independence (often referred to as “church autonomy”) from government control is considered vital because ministers are recognized by the law as the lifeblood of the Church.

While the Sixth Circuit upheld this principle in EEOC v. Hosanna-Tabor Evangelical Lutheran Church, it failed to apply it 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.

The court 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.

The good news is that 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 that want to employ only those individuals who agree with and abide by their church’s teaching.  For example, if the court doesn’t get this ruling right, a church could be forced to hire someone enaged in an immoral sexual relationship to head up its daycare ministry.

Please be in prayer for this important case.  ADF recently became involved in the matter at the trial level, and one of our allies, the Becket 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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ADF Senior VP; Senior Counsel Gary McCaleb writes:

A half a century ago, the United States lent a hand to the struggling nation of South Vietnam as its freedom was threatened by the Communist North Vietnamese regime and its Viet Cong allies. But by the mid-70s, the war whimpered to defeat: radical leftists won the day and the so-called “peace” movement forced American withdrawal and the inevitable, bloody collapse of South Vietnam.

Tens of thousands were slaughtered and more imprisoned in “re-education camps” as victorious Communists spread their brand of “freedom” through the land. And at the same time, thousands of freedom-loving South Vietnamese fled the country.

Most fled by boat, in harrowing ventures across the open sea to an uncertain fate—all the more uncertain as would-be host nations often turned back the “boat people,” or made their lives intentionally miserable to discourage others.

Among those refuges was 10-year-old Viet D. Dinh, who, through Providence and perseverance, found himself in America—and more amazingly, not living from hand to mouth but serving his new homeland as the senior partner in the esteemed firm of Bancroft Associates.

So what does a former “boat boy” turned attorney have to do with saving marriage? The answer is rooted in President Obama’s flip-flop on marriage, where he abandoned his campaign promises and decided that marriage between one man and one woman is somehow unconstitutional—then told the Department of Justice stop defending the Defense of Marriage Act. In response, the House of Representatives acted to defend DOMA itself.

To that end, House leaders hired Paul Clement, a noted Supreme Court lawyer at the “big law” firm of King and Spalding, to present the case for marriage in court.  But within a few days, homosexual activists leaned on the firm so hard that it turned tail and bailed out of the case.

But Mr. Clement did not flee with his firm. Instead, he resigned his position so that he may continue to represent the House and give voice to the pro-marriage arguments. And he did so as firmly as he did graciously, in a letter of resignation that profiles moral courage.

But a lawyer alone is still a lawyer alone. On a case like this, he needs help—a host of professional colleagues—with whom to go to war.

And with delicious, made-in-America irony, it was a refugee from the war lost by the American left—Mr. Viet D. Dinh—who welcomed Paul Clement to Bancroft Associates—who will be his “band of brothers” in this battle against the left’s effort to redefine marriage.

ADF commends Paul for his principled decision, and honors Mr. Dinh for enabling the defense of marriage—that unique bonding of a man and a woman, hopefully for life, that provides the procreative potential and nurturing that undergirds every civilization. Defending marriage is a high calling—and it certainly looks like the best and brightest have answered that call!

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My colleague David Cortman posted a blog about the recent Supreme Court victory in ACSTO v. Winn.  As he points out, there are many great things to celebrate about that case.  I thought I would highlight one other positive development from that case.  For decades, we have been witnesses to an unprecedented assault on religion in the public square, aided by the Supreme Court who has allowed the ACLU and its allies to file lawsuits against anything the government does that in any way touches religion.  These case have removed prayer, Bible reading, and the Ten Commandments from schools, removed the Ten Commandments from courthouses across the nation, struck down prayer at school football games, prohibited religious involvement in government programs, invalidated aid to certain private schools simply because they might be religious, held unconstitutional scholarships that may be used for religious education, and the list goes on and on.  Suffice it to say that religion in the public square has taken quite a beating in the last several decades thanks to the ACLU and its allies.

The ACLU has gotten away with this because the Supreme Court has relaxed the “standing” rules to bring lawsuits under the Establishment Clause.  Put simply, a person must normally prove they are specifically and uniquely injured in some way in order to seek redress from the courts.  If a person only suffers an injury that is shared by all of society, then they are not suffering a particular injury that the court can remedy.  As an example, normally a person cannot sue the government and claim that the taxes he or she pays are being used inappropriately. The courts recognize that such a claim of harm is speculative and that the proper remedy for that claim lies in the legislature, not the courts.

Yet the Supreme Court created a broad and expansive standing doctrine under the Establishment Clause that allowed for the ACLU and its allies to essentially roam the country and file lawsuits against anything they saw that offended them.  That’s why today we see lawsuits like those in Colorado and Wisconsin that challenge even our ability to engage in a National Day of Prayer.  It’s why the ACLU felt it could challenge Arizona’s school choice law.

The Supreme Court, though, in the ACSTO case seems to be saying that it has had enough of these kinds of frivolous and speculative lawsuits.  The ACLU and its allies in ACSTO were arguing that they were injured by the school choice program simply because some people in Arizona might choose to give money to a school tuition organization who would then possibly decide to give a scholarship to a student that might be used at a religious school; and then the people who originally gave the money might choose to avail themselves of a tax credit offered by the State of Arizona and, the people represented by the ACLU might have to pay more money in taxes as a result.  What a twisted, convoluted, and speculative logic!  But the Supreme Court thankfully saw just how twisted this line of reasoning was and held that there was no injury here and the ACLU and its allies had no standing to challenge the school choice law.

This was a positive development in the law.  Indeed, if we could step back and look at a possible developing trend, we would see that the Supreme Court seems to be cutting back on the ability of the ACLU and its allies to have standing to bring challenges under the Establishment Clause.  Just last year the Court decided a case called Hein v. Freedom From Religion Foundation where it held that the Freedom From Religion Foundation did not have standing to challenge expenditures by the Executive Branch of government that touch on religion.  The ACSTO case is another step in the right direction of limiting the ability of the ACLU and its allies to roam the country in search of what they perceive to be Establishment Clause violations and then file a lawsuit to have those invalidated.

The Supreme Court still has a long way to go to restore sanity to this area of the law.  For example, another way the Court has expanded the standing doctrine under the Establishment Clause is to allow people “offended observer” standing.  This allows groups like the ACLU to sue over Ten Commandment displays and the National Day of Prayer simply because they have to come into unwelcome contact with something that offends their religious (or agnostic) sensibilities.  The Court should do away with this doctrine like it seems to be doing away with taxpayer standing under the Establishment Clause.  ACSTO was a step in the right direction.  Let’s pray that the Supreme Court continues this trend of undoing the great damage caused in the courts by the ACLU and its allies.

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To read David Cortman’s blog about the ACSTO v. Winn ruling, click here.

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Earlier today (April 4^th), the Supreme Court of the United States handed down an extremely important decision in ADF’s case, ACSTO v Winn.  Although the Court doesn’t always get it right, at least in my opinion, it certainly did in this case.  And it’s not simply because it was an ADF case.  It was because of the important issues that were at stake; such as, whether the ACLU or its clients can even bring a lawsuit over someone else’s donations (like your tithes) to non-profit groups (like your church), whether those donations violate the so-called separation of church and state simply because some of them go to religious groups, or the underlying issue of whether all of our money belongs to the government and only by its “grace” does it not tax it all.  And even though these issues came to the Court wrapped in the context of school choice, which is an important issue itself, these are tremendously important issues in all contexts.

For those of you not familiar with the case, the case centers around an ACLU challenge to an Arizona school choice program, brought on behalf of a few taxpayers who were offended by the fact that private religious schools–along with all secular schools–were permitted to participate in the program.  The state of Arizona is one of the nation’s leaders when it comes to school choice.  Educational options currently include traditional public schools, charter schools, virtual or on-line schools, free out of district schools, home schools, and private schools.  As part of these choices, the legislature enacted a law allowing donations to be made directly to public schools, and indirectly to private schools through non-profit 501(c)(3) organizations (called STOs or School Tuition Organizations).  Anyone can set up an STO.  Any STO can support any group of schools.  Any citizen can make a donation to any STO.  And any taxpayer may take a state tax credit up to a certain limit for the donation.

Sounds like a good plan, so what was the problem?  In my opinion there were at least two fundamental problems that the ACLU had with this program. The first is that the ACLU doesn’t like that religious groups get to participate in government programs–even on a neutral basis.  The second is that the ACLU is no friend of school choice.

As to the first problem, the ACLU claims that the program is not “neutral” because more donations are sent to religious schools.  This, they claim, skews the choices of parents toward sending their kids to religious schools.  And this allegedly violates the Establishment Clause because the government is the one that is supposedly favoring religious schools by enacting the tax credit.  Got that?  If it sounds convoluted and seems like tortured logic that is because it is.  There are so many obvious flaws in this argument that it is almost difficult to know where to begin.  But I said “almost,” so here I go.  As to neutrality, the constitution requires that the government program be neutral, not the choices of Americans in utilizing that program.  Even so, the program allows anyone to donate to any public school directly, or to any private school through an 501(c)(3) STO.  Anyone can set up an STO, and that STO can support any group of schools.  Sounds neutral to me.   What about more money going to religious STOs and schools?  A few responses.  Most logically (and supported by simple math), there are more religious private schools than non-religious ones (religious groups tend to be the ones who open private schools).  Hence, the part about more money going to religious schools.  And not a dime can go to a religious school unless a parent chooses for his child to attend that school and apply for a scholarship.  And isn’t this program supposed to be about parental choice in education?  At least I thought it was.  A bit more math.  Even though there are more private religious schools, as a matter of percentages there is more money going to private secular schools than religious ones.

And then there’s the whole “this is the government’s money” argument that the ACLU makes.  Talk about far-reaching and dangerous.  The ACLU argues that because a tax credit is given by the government for the donation, the money is really the government’s to begin with (even at oral argument before the Court, several Justices recognized that this was the essence of the ACLU’s claims).  Let’s analyze that claim for a minute.  So, if you donate to your church or other charitable organization and take a charitable contribution deduction on your tax return, does that mean that the money you donated was really the government’s and not your own?  Because as a constitutional matter, there is no difference between 30 cents on a dollar tax forgiveness for a charitable deduction (depending on your tax bracket) and a 100 cents on a dollar tax forgiveness for the tax credit.  Let’s look at where the ACLU’s logic extends.  If every dollar that the government chooses NOT to collect from us in taxes is really the government’s money, where does that stop (or start)?  To put it plain and simple, it is a communistic/ socialistic theory in its purest form.  According to the ACLU, it all belongs to the government—even the portion that they allow us to keep.  Talk about elevating the government to a god-like status.  But providentially, the Court rightly dismissed that argument by stating, “When Arizona taxpayers choose to contribute to STO’s, they spend their own money, not money the State has collected from respondents or from other taxpayers…. Private bank accounts cannot be equated with the Arizona State Treasury.”

And quickly to that whole school choice issue.  The ACLU is obviously a leftist organization, and those on the far left don’t like parents to be able to choose where their own children go to school.  These leftist groups, also including the powerful NEA (National Education Association)–which filed a brief in the case supporting the ACLU–enjoy a stranglehold on our public schools.  They control billions of dollars (including forced union dues–yes, it’s that whole union thing again) and thereby have financial control of the educational system.  And they get to impose what is taught to our children, much of which is far-left ideology.  And how are these groups doing running our schools?  Let’s see, nearly a 30% high school dropout rate, a U.S. ranking of 25^th out of 30 nations in math scores, and a staggering amount of crime in public schools.  A failing grade by any standard.  But Arizona’s program, like so many others around the country, is trying to change that by empowering parents to have more realistic options of where to educate their children.  And that threatens the left’s control, which they will obviously oppose at any cost.

But the Supreme Court saw through all of that rhetoric and held that the ACLU’s clients have no right to come to court in the first place because they have no legal standing.  In simple terms, they have no injury to complain of.  The Court agreed with ADF’s argument that the money donated is private money—not the government’s—and that someone else’s donation creates no legal injury to ACLU’s clients.  The Court wisely rejected the ACLU’s–and their allies’–extreme arguments.  And which groups filed briefs in the case in support of the ACLU?  Looks like a veritable cornucopia of groups on the far left:  National Education Association, Americans United for Separation of Church and State, American Jewish Committee, The Anti-Defamation League, American Humanist Association, Atheist Alliance International, Council for Secular Humanism, Freedom from Religion Foundation, Institute for Humanist Studies, Secular Coalition for America, Secular Student Alliance, and Unitarian Universalist Association.

So while the Court had no need to reach the question about whether the program was consistent with the Establishment Clause, which ADF believes it was, it nevertheless issued an extremely important ruling that protects school choice programs, parental rights, and charitable giving, while at the same time limiting the ability of the ACLU and its cronies to complain about such programs.  But when the next case comes up where the ACLU again challenges a school choice program, and it certainly will—ADF and its allies will be there once again to fight on behalf of our families and our children’s educational future.

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To learn more about how ADF defends Religious Freedom in Education, visit the ADF Public Schools page.