SCOTUS unanimous decision upholding religious liberty, “ministerial exception”

My mind returns to the moment in Pres. Obama’s State of the Union Address when he chose to scold the Justices of the Supreme Court of the United States, while they sat and, from decorum and custom, could do nothing to respond.
SCOTUS Supreme Court of the United States

For those of you who are closely following the presidential campaigns, I would remind you of a major point of consideration apart from jobs and the economy:


On the site of the NYT we find some good news for a change concerning the US Supreme Court and religious liberty:

Justices Grant Leeway to Churches in Job Bias Laws
Published: January 11, 2012

WASHINGTON — In a major religious liberty decision, the Supreme Court for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose their leaders without government interference.

“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Chief Justice John G. Roberts Jr. wrote for a unanimous court. [UNANIMOUS!] “But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”

The decision gave only limited guidance about how courts should decide who counts as a minister, saying the court was “reluctant to adopt a rigid formula.” Two concurring opinions offered contrasting proposals.  [This is important.  There are shifting tides and sand bars in the matter of how civil courts adjudicate in matters that also concern canon law.  Generally courts don’t want to get involved with internal matters, but times and judicial practices shift around over time.  Card. Burke has done us a real service in sponsoring workshops for canonists and civil lawyers on the interplay of both kinds of law.]

The case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, who had been a teacher at a school in Redford, Mich., that was part of the Lutheran-Church Missouri Synod, the second largest Lutheran denomination in the United States. Ms. Perich said she was fired for pursuing an employment-discrimination claim based on a disability, narcolepsy.

Ms. Perich had taught mostly secular subjects but also taught religion classes and attended chapel with her class.

“It is true that her religious duties consumed only 45 minutes of each workday,” Chief Justice Roberts wrote, “and that the rest of her day was devoted to teaching secular subjects.”

The issue before us, however, is not one that can be resolved with a stopwatch,” he wrote. [NB.]

Instead, the court looked to several factors. Ms. Perich was a “called” teacher who had completed religious training and whom the school considered a minister. She was fired, the school said, for violating religious doctrine by pursuing litigation rather than trying to resolve her dispute within the church.

Chief Justice Roberts devoted several pages of his opinion to a history of religious freedom in Britain and the United States, concluding that an animating principle behind the First Amendment’s religious liberty clauses was to prohibit government interference in the internal affairs of religious groups generally and in their selection of their leaders in particular.

“The Establishment Clause prevents the government from appointing ministers,” he wrote, “and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”

[ENTER STAGE LEFT…] The Obama administration had told the justices that their analysis of Ms. Perich’s case should be essentially the same whether she had been employed by a church, a labor union, a social club or any other groups with free-association rights under the First Amendment. That position received withering criticism when the case was argued in October, and it was soundly rejected in Wednesday’s decision. [The best news I have heard in a while.  The Obama administration is trying to undermine religious liberty.  They are pushing “freedom of worship” rather than “freedom of religion”.]

“That result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations,” Chief Justice Roberts wrote. “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.[Do I hear an “Amen!” brothers and sisters?]

Requiring Ms. Perich to be reinstated “would have plainly violated the church’s freedom,” Chief Justice Roberts wrote. And so would awarding her and her lawyers money, he went on, as that “would operate as a penalty on the church for terminating an unwanted minister.”

Unanimous decision.

I repeat.

Unanimous decision.

Remember this?


About Fr. John Zuhlsdorf

Fr. Z is the guy who runs this blog. o{]:¬)
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  1. Supertradmum says:

    Praise God! The Constitution is upheld against ideology

  2. PostCatholic says:

    Six Catholic justices ought to be enough, don’t you think?

  3. Simon_GNR says:

    Having seen the headline at the top of this post and skimmed through the text, I couldn’t work out what this story had to with Duns Scotus, the noted scholastic philosopher! Then I realised SCOTUS = the Supreme Court of the United States!!



  4. Andy Milam says:

    I guess we WON’T be seeing any female Catholic priestsessessessess in the good ‘ol USofA anytime soon, despite Obama’s opinings…..

    What a presumptuous cad!

    God Love Newt! God Love Rick!

  5. Veronica says:

    Praise the Lord! Indeed the best news of the week! Now we need a similar law that allows Catholic -and other Christian charities- not to give in adoption babies to gay couples because this goes against fundemental beliefs of our faith on matters of family, marriage, respect for life, protecting children.

  6. tech_pilgrim says:

    This is news!

    The supreme court codifies a decision that’s BASED on the constitution, rather than in spite of it.

  7. Wow. I had not heard the result. You made my day. I had the honor of contributing last June to one of the amicus briefs filed on behalf of H-T, that of a panel of Religious Law Experts. I wrote on Catholic canon law, of course. The brief was selected as “Brief of the Week” by the National Law Journal in September. Can’t wait to read the decision. Thanks again for calling attention to this. It’s about the biggest case they’ve faced in 30 years.

  8. Charles E Flynn says:

    There is something deeply and immensely satisfying about the fact that not a single justice agreed with the Obama administration, which I look forward to referring to as the lame duck Obama administration.

  9. keithp says:

    That is good news. But… considering the ages of several of the justices, an Obama re-election with likley changes to the make up of the court, might swing these decisions the other way…. Maybe not ALL the way. Still another good reason to defeat Obama in November.

  10. irishgirl says:

    Amen! Yes, Amen! Hooray! Thank God, indeed!
    And I agree with you, keithp: this is another good reason to defeat Obama in November!

  11. NoTambourines says:

    I’m surprised and delighted at such a collective display of sanity, and of fidelity to the Bill of Rights.

  12. wmeyer says:

    Finally, a decision from the court that doesn’t leave me gnashing my teeth!

  13. Pingback: POTUS kicked by SCOTUS: unanimous! | Holy Souls Hermitage

  14. Subdeacon Joseph says:

    The American political world has been depressing for so long this is almost hard for me to believe.

  15. tealady24 says:

    Pushing freedom of worship is just getting the country one step closer to throwing out all organized religion through the courts. You can’t say that the OWH doesn’t give it the ol-college try!

  16. The Sicilian Woman says:

    Thank God. I cannot believe it was a unanimous decision and that they slapped Obama’s hands. Maybe there is hope.

    To quote Oliver Twist, “Please, sir, I want some more.”

  17. jonesmj1 says:

    I’m not sure if you’ve heard about the controversy concerning religious organization at Vanderbilt recently (, but this decision is a HUGE as well as unexpected help in our cause. Thanks to all the members of the SC who have helped to preserve organizations like Vanderbilt+Catholic with their ruling!

  18. AnAmericanMother says:

    Link to the opinion:

    Hosanna-Tabor &c. Church & School v. EEOC

    An interesting lineup of justices: ROBERTS, C. J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which KAGAN, J., joined.

    C.J. Roberts went back to Magna Carta and the Established Church and the roots of the First Amendment, analogized to the fairly well known church property cases, rejects the administration’s contention that First Amendment ‘freedom of association’ is good enough, and applied the ministerial exception to the plaintiff here, a “commissioned minister of religion” even though she performed the same duties as lay teachers.

    Justice Thomas goes further, stating that the court has no business applying the ministerial exception to decide who is a “minister”. If the church says an employee is a minister, that, according to Thomas, should be that. (Good for him.)

    Justice Alito splits the baby, stating that ‘The “ministerial” exception should be tailored to this purpose [protecting the religious body’s selection of those who conduct religious ceremonies and transmit the faith]. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.’ I’m not sure why Justice Kagan joined this.

    A unanimous opinion, even with the quibbling over the definition of “minister”, is almost unheard of in this day and age.

    Just shows you how far out the Obama administration really is, when they can’t even get their recent appointees to agree with them.

  19. pvmkmyer says:

    The most important issue in the election is not the economy or jobs, it’s judicial appointments. The influence of a justice of the Supreme Court lasts much longer — decades, than any politician or Congress. We need conservative justices who will uphold the constitution as it is written, not as interpreted by liberals as a “living document.” There will be a couple of liberal justices retiring in the next few years, and only the president has the power to appoint their replacements.

  20. lawoski says:

    I concur with the esteemed Dr. Peters. This is a big deal. I also think it is noteworthy that Chief Justice Roberts wrote the opinion. Since the vote was unanimous, under Supreme Court procedures, he could have assigned the writing of the opinion to any of the other members of the Court. Instead, he reserved the job for himself. A (straight) 5-4 decision is just as binding as a 9-0 decision, but the Chief Justice writing for a unanimous Court is a signal that this is not a run-of-the-mill case.

  21. JohnMa says:

    For those that would like to read the brief Dr. Peters was amicus on:

  22. Alan Aversa says:

    Why is a unanimous decision so surprising? All I has to do with is EMPLOYMENT. It has nothing to do with CONSCIENCE PROTECTION. If that were the case, it likely wouldn’t’ve been unanimous whatsoever.

  23. Alan Aversa says:

    Regarding the NYT article: “Asked about professors at Catholic universities like Notre Dame, Professor Laycock said: ‘If he teaches theology, he’s covered. If he teaches English or physics or some clearly secular subjects, he is clearly not covered.'”

    So, e.g., are all Thomas Aquinas College tutors covered by the “ministerial exception” or not? Every class—from Euclidean geometry to modern physics, from music to theology proper—in that school is not secular in the sense that it is clearly shown to be a handmaiden of theology, while still distinct from it, if it isn’t theology proper.

  24. Alan Aversa says:

    From the opinion: ” it would violate the First Amendment for courts to apply such laws to compel the ordination of women by the Catholic Church”

  25. Patt says:

    Obama shows how clearly he has no respect for Christians and most especially Catholics. He is a hate filled and vindictive man– especially when it comes to the followers of Christ. I suppose any Catholic who voted for him will be held accountable one day. I remember pointing out Obama’s pro abortion stance to fellow Catholics before the election, but they shrugged it off and cast a vote for the baby killer. I think every ” cafeteria Catholic” in my office did so.

  26. pm125 says:

    My thanks to God for good work of the Justices of the Supreme Court, and thanks also to them. It’s so nice to hear of it.

  27. Mr. Aversa,

    Your quote is out of context. The reference to ordination of women in the Catholic Church being something that the government cannot become involved in is a quote from the BRIEF IN FAVOR OF THE PLAINTIFF. So even the government recognized that this was not involved in the decision, even if it had gone for the plaintiff.

    This is a very important decision. It not only upholds the “ministerial exemption,” it effectively gives the Church and other religious entities the right to decide who is a “minister” and who is not. Even “45 minutes” a day of religious instruction (see decision) is enough to be a “minister” and “a stop watch cannot be used” to determine a “minister.”

    Frankly, I did not think this one would ever fly: she was clearly fired because she was narcoleptic, not for a the remotest religious reason. WOW. This has really raised the “wall of separation” to a new height in a new (and good) way. The court has unanimously ruled out government meddling in any hiring of people even remotely related to the religious function of the group. It effectively overturned the Persons with Disabilities Act too for religious entities too, if the person was a “minsterial.” Wow.

    That this didn’t involve the “conscience” question is irrelevant, this was not about that issue. After this decision — and remember that the justices we Catholics rightly hate agreed with it — I am looking forward to a conscience case. Even the Obama appointees understand that the First Amendment was intended to protect churches, not the government. Bring on the conscience cases!

    Oh, can I claim, Fr. Z., the credit for sending you the link? . . . . .

  28. Andy Lucy says:

    “Finally, a decision from the court that doesn’t leave me gnashing my teeth!”

    Alas, many of the commentators on the NYT site will have dental visits galore in their near future… even though the church involved was protestant, predictably, most of the bashing was against the Catholic Church.

    It always amazes me how the “liberals” are the exact antithesis of what a “classical” liberal should be. And the evident lack of reading comprehension and critical analysis skills of the vast majority of the posters reinforces my antipathy toward the modern education system. I weep for the future.

  29. AnAmericanMother says:

    Fr Augustine,

    I don’t think that’s correct.
    She wasn’t fired because she was a narcoleptic. She was placed on sick leave because of her condition, and had a disagreement with her employer about when she would be fit to return to work. But she was fired because she retained counsel and threatened to sue the church.
    Many evangelical groups take the prohibition in 1st Corinthians 6 very seriously indeed. A fellow in my gg grandfather’s Baptist congregation was “churched” (i.e. expelled) for suing another church member. My gg uncle was churched for having a dancing party at his house, but that’s another story.

  30. Warren says:

    Thanks be to God for prayers answered!
    Well done SCOTUS!
    Perhaps you, dear American cousins, can transmit that legal common sense to the Supreme Court of Canada.

  31. jhayes says:

    A columnist on the blog of one of the Baptist groups that submitted a brief urging the court to rule as they did, points out that churches need to act responsibly

    …the exception – like all accommodations designed to preserve religious freedom – is a trust that should not be abused. The freedom to make certain employment decisions without government interference leaves intact the moral obligation to act honorably, to treat employees honestly, and to make religious decisions based upon true religious beliefs. Support for a broad definition of the ministerial exception should not imply support for a broad license to discriminate with impunity. It merely stands for the proposition that sound judgment in such cases can only fall under the responsibility of the religious institution itself, as it is not proper for our courts.

  32. tealady24 says:

    Didn’t CJ Roberts just sit there and shake his head at the emperor!!??
    These are 3 separate branches of govt; who does this guy think he is to addmonish others as equal (in my opinion, not at all equal) as himself!
    Just shows the depths of his ineptitude.

  33. bourgja says:

    Unfortunately, this ruling might also allow Catholic universities to fire orthodox professors, and then claim ministerial exemption to prevent a lawsuit.

  34. oddfisher says:

    The government claimed that their reading of the law would not require Catholics, (or Orthodox Jews, or some Protestants), to ordain women, but they were unable to convince the Court that the government’s understanding of the law would not, in fact, lead to such an interpretation if it were upheld.

    The school kept the teacher on full salary and benefits for seven months before they concluded they could no longer carry the burden. Even so, she had access to a church-based appeal process which would have been conducted by church officials not connected with the school. She decided to sue instead, which was in violation of her church’s teaching that fellow believers are not to sue each other.

    As to whether they were *really* firing her for religious reasons, or whether she was *really* a ministerial employee, that’s just the sort of second guessing the Court intended to prevent.

  35. AvantiBev says:

    On my part, I am saddened to see that even an ostensibly “Christian” woman thinks she deserves a job despite the fact that her disability, narcolepsy, could lead her to allow serious harm to come to her students. Depending on how little the kids were, it would be very dangerous to have an adult who might nod off at any time in charge of a classroom. Yet we are trained to be “victims” and demand our “rights” with precious little conscience as to our responsibilities.

  36. Supertradmum says:

    Alan Aversa,

    If I am not mistaken, even the non-Catholics on the staff have to make some pledge of loyalty at TAC. I think the Catholics take the Oath and Promise as well. When my son was there, there was an agnostic on the staff and she did have some strange ideas, but she did not, at that time, teach theology or Scripture. Having said that, I thought the Scripture teacher my son had was badly trained and had a Protestant approach to private interpretation, taking the Socratic Method to a useless extreme. I sat in on some of the classes.

  37. XYZ321 says:

    I am heartened that even associate Justices Ginsburg, Breyer, Sotamayor, and Kagan joined in this opinion. This was a real (to use a legal term) “slapdown” by SCOTUS of President Obama’s EEOC. Well done!

  38. Alice says:

    Yes, this ruling could be abused, but I’d prefer that the civil courts stay out of deciding who is an orthodox Catholic and who isn’t.

  39. Clinton says:

    Regarding that clip from the State of the Union Address, I must say that I would never
    have believed that so much naked hypocrisy could be compressed into 85 seconds if I
    hadn’t just seen it with my own eyes. WOW.

  40. Elizabeth D says:

    Tremendous news.

    There’s surely no problem with dismissing theology professors at Catholic universities, who don’t have and aren’t interested in seeking the Mandatum.

  41. mibethda says:

    You are quite correct, Perich’s firing was a retaliatory action. It was for this reason that the Second Amendment defence was crucial. Generally, under the various Civil Rights statutes, including The Americans With Disabilitie Act, retaliatory action taken against a person who has availed himself or assisted another in availing himself of a claimed right under these acts – even if the claim of discrimination is without merit – will give rise to a claim for retaliation. Often the retaliation claim comes to the fore since it is generally a slam dunk. In this case, even if the Church was correct in the action it took in refusing to return Perich to her job (and it might have had an argument in favor of its action) it would have been in serious trouble for formally discharging her in response to her hiring counsel and asserting a legal claim but for the ‘ministerial’ exception which now has been held to trump the anti-retaliatory provision of this (and probaly any other) Act.

  42. mibethda says:

    Correction to the above comment: First Amendment, not Second (unless the minister was weilding a Beretta)

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