Can the Government Tell the Church What to Do? By C. Peter Wagner

            The Obama Administration recently opened a can of worms by insisting that Catholic institutions provide birth control services to women despite the official doctrine of the Church against birth control. Can the government tell the church that it must violate its own doctrine? Does a liberal interpretation of "women's rights" trump a longstanding church polity?

Similar cases have recently arisen in which certain churches and church institutions have been forced to hire or retain staff members who are practicing homosexuals. Can the government, on the basis of "non-discriminatory practices," force churches to violate their own standards of sexual morality?

Can a preacher preach a sermon on Romans 1, a chapter which directly condemns homosexuality as a sin against God? In other countries as close as Canada, ministers have been arrested by the government for "hate crimes" for doing that very thing. Does this kind of government activity cross the line between separation of church and state?

Our Supreme court has given a very encouraging answer to questions like these in a ruling on January 12, 2012, "Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Opportunity Commission." In it, the court decided unanimously that churches and church institutions have the right to decide who will or will not be retained to form part of their ministerial staff. This is huge. We will feel the ripple effects of this for many years to come!

One of those implications is that not only churches, but ministries supported by the church are included in this ruling.   Schools are specifically mentioned, but how about a number of other kinds of ministries attached to our churches and apostolic networks? I would think they would fall under the same umbrella. And it will be interesting to see how workplace ministers will be treated since we have begun to officially commission them. Would apostles, prophets, evangelists, pastors, and teachers in the other six mountains be dealt with on par with ministers in the Religion Mountain?

This is a great step forward for our cause. I hope you find time to read the attached summary of the Supreme Court decision which was forwarded to us from Evangelical Council for Financial Accountability (ECFA).

Major US Supreme Court Victory for the Freedom of Religious Organizations

 January 12, 2012

On January 12, the US Supreme Court handed down a unanimous decision upholding the freedom of religious organizations to decide who will be their leaders and teachers. The case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, was about the validity of the "ministerial exception"--a concept created by lower federal courts in response to the First Amendment's Religion Clauses. Those clauses say that the government must respect religious exercise while not establishing religion. The Supreme Court upheld the reality of the ministerial exception while sharply chastising the federal government for denying its existence.

Some church-state scholars had termed this case the most significant religious freedom case in decades because it deals with the very fundamental question: is there a zone of autonomy such that the government may not second-guess crucial decisions made by churches and other religious organizations about their leadership, their beliefs, and their teachers? In pursuit of its mandate to ensure justice for all and to quash invidious discriminations, governments have asserted ever-more control over private activities, private individuals, and private organizations. Is there a zone it may not invade?

The Supreme Court has now strongly reaffirmed there is such a zone: there is a line of separation between church and state that protects vital church decisions from state rules.

Hosanna-Tabor concerns a "ministerial" teacher in a church-related schools--that's a particular job in a particular setting. Yet the Court's ringing language makes its decision of much wider significance. Note that this was a ministerial teacher, not a member of the clergy. And this was a church-related school, not a seminary or house of worship. Moreover, the Court used very strong language to stress how important it is for government to respect the freedom of religious institutions. So the Court's decision gives important support to institutional religious freedom more generally--the freedom that faith-based service organizations, and not just churches, need in order to faithfully carry out their missions.

Church-state expert Carl Esbeck (University of Missouri law school), said this: "It is not just a spectacular win on multiple issues and with multiple (indeed, all) justices on board, but it is the Court's sweeping language that is so very important. The words in the various justices' opinions ring out like a Liberty Bell for religious freedom. Already I can envision scores of legal briefs being churned out in the future mining the Court's passages reaffirming religious freedom as the First Freedom of the Republic. Of cardinal importance: the Supreme Court relied on the Establishment Clause as well as the Free Exercise Clause as a fountainhead of religious freedom-a contested point until now."

Note these passages from Chief Justice Roberts' unanimous opinion (emphases added):

"The members of a religious group put their faith in the hands of their ministers. Requiring 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. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions." [pp. 13-4]

The EEOC and the fired teacher, Cheryl Perich, claimed that there is no "ministerial exception"; a church's legitimate decision-making freedom instead is protected by the First Amendment's freedom of association. Not so, said the Court: "The right to freedom of association is a right enjoyed by religious and secular groups alike. It follows under the EEOC's and Perich's view that the First Amendment analysis should be the same, whether the association in question is the Lutheran Church, a labor union, or a social club. . . . That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations. We cannot accept the remarkable view that the Religion Clauses have nothing to say about a religious organization's freedom to select its own ministers." [p. 14]

"The EEOC and Perich suggest that Hosanna-Tabor's asserted religious reason for firing Perich-that she violated the Synod's commitment to internal dispute resolution-was pretextual. That suggestion misses the point of the ministerial exception. The purpose of the exception is not to safeguard a church's decision to fire a minister only when it is made for a religious reason. The exception instead ensures that the authority to select and control who will minister to the faithful-a matter 'strictly ecclesiastical' [ ]-is the church's alone." [p. 20]

"The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way." [pp. 21-2]

Source: Institutional Religious Freedom Alliance, January 11, 2012

Another court case victory!

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