President Obama’s Justice Department is attacking freedom of religion. Yesterday, the Supreme Court heard arguments in the case of Hosanna-Tabor Church and School v. EEOC. Cheryl Perich taught elementary school and led chapel devotions at a small Lutheran school near Detroit but was replaced by a substitute after falling ill. She later sought to return to teaching but the church was concerned that she wouldn’t be able to fulfill her duties. Negotiations turned sour; Ms. Perich threatened to sue and the church congregation voted to withdraw her “call” to the ministry, which made her ineligible for the job. She then charged discrimination under the Americans with Disabilities Act.
The gist of the case is the definition of the “ministerial exemption.” This is a customary practice recognized by lower courts that exempts churches from many provisions of employment laws. The purpose of the exemption is to keep the government out of church employment decisions, since federal intrusion into that arena would have a fatal impact on First Amendment guarantees of free exercise of religion. In previous cases, arguments over the exemption centered on how “religious” an employee’s duties were; for example, the exemption would apply to a priest but not the church’s janitor. However, in the Hosanna-Tabor case, the Justice Department argued for tossing out the exemption altogether and bringing the full weight of federal employment and anti-discrimination law to bear on religious institutions.
The negative consequences of such a radical policy change are easy to imagine. Courts and policymakers would face a rash of cases requiring them to makes rulings balancing religious doctrine with secular law. Federal judges, not religious officials or parishioners, would have the final say over hiring and firing decisions in every religious institution. The Supreme Court has already held in the 1987 case Bishop v. Amos that religious organizations should be “free to select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions.” In oral arguments before the court Wednesday, Justice Samuel A. Alito Jr. noted the ministerial exemption “has been widely recognized … by the courts of appeals going back 40 years.”
Mr. Obama has a well-earned image problem in the faith community. According to Gallup, his approval rating among those who attend services tracks eight points lower than among those who attend seldom or never. Government actions justify concern that the Obama administration is seeking to tear down the wall of separation protecting the church from the state. Earlier this year, the Justice Department intervened on behalf of a Chicago-area school teacher who was demanding three weeks off work to take a pilgrimage to Mecca. No other teachers had such latitude but the Obama administration argued this was religious discrimination. It’s an absurd claim that it’s the province of the government to determine the appropriate amount of time a Muslim needs to conduct a pilgrimage.
Catholics worry the church could lose tax-exempt status by refusing to allow homosexual unions. For example, the Defense Department has adopted a policy allowing military chaplains to perform same-sex weddings in military chapels. The government might seek to force such ceremonies in the West Point Catholic chapel, something the Archdiocese for the Military Services has ruled out. Recently, Cardinal Donald Wuerl, Archbishop of Washington D.C., cancelled city contracts and ended Catholic Charities’ successful foster-care program because the church wouldn’t give homosexual employees spousal benefits or put foster kids in same-sex-couple homes.
Religious leaders of all faiths should be vigilant against the government using left-wing cultural causes to intrude into sacred ground.