BreakPoint: Yellow Light

The Supremes and Religious Freedom

A recent Supreme Court decision is a victory for religious freedom. But we must remain vigilant.

colsonA central concern of the Manhattan Declaration is the increasingly perilous state of religious liberty: scarcely a week goes by without yet another report about limitations on the right to practice our faith, at home as well as in the public square.

That’s why a recent Supreme Court decision is both very good news, but it’s grounds for caution. The decision involved a school run by Hosanna-Tabor Evangelical Lutheran church in Michigan. A teacher who had gone on disability leave threatened to sue the school because it hired a substitute for the remainder of the school year.

She was fired because the threat violated the school’s dispute resolution process for ministers, which the school insisted she was.

She took her case to the Equal Employment Opportunity Commission, which in turn took the church to court. The EEOC argued that despite what the church said, the plaintiff was not a minister and, thus, the “ministerial exception” did not apply.

The Court, however, unanimously rejected the government’s contention that the plaintiff was not a minister. According to Chief Justice Roberts, the First Amendment gives “special solicitude to the rights of religious organizations.” He sarcastically rejected as “remarkable” the government’s argument “that the religion clauses have nothing to say about a religious organization’s freedom to select its own ministers.”

Even more importantly, the Court rejected the absurd argument that the ministerial exception “should be limited to those employees who perform exclusively religious function.”

This deference to history and common sense was too much for one law professor, who accused the court of ignoring “the rights of the religious individuals who work at [religious] institutions.” Please.

While the decision in Hosanna-Tabor case is good news, it’s only so because our worst fears didn’t come to pass. The Court has affirmed our right to define our ministers, but not much else.

We still have to fight many thorny question of religion’s role in the public sphere. That’s because, as I’ve said over and over on BreakPoint, this Administration has launched an all-out campaign to restrict our religious liberties; to keep all of our spiritual life private and not allow it invade the public realm. And what the Administration can’t achieve in court, it is consistently attempting to do through executive order or administrative fiat.

That’s why the Administration increasingly talks about freedom of worship, a private act, not freedom of religion, a public act referred to in the Constitution. That’s why the Administration failed to defend the Defense of Marriage Act. It’s why the EEOC tried this amazing power grab in the Hosanna-Tabor case.

Remember, folks, Hosanna-Tabor says nothing about the freedom of non-ministers to practice their faith outside of church; nothing about pharmacists who refuse to dispense abortifacients or whether religious organizations must provide insurance “benefits” that violate church teaching. As Matthew Franck wrote in First Things , much of what religious groups do —healing, teaching, feeding the poor”— is regarded by this Administration as “secular,” and therefore not covered.

So, let’s celebrate the good news, but at the same time, we must not relent in our vigorous defense of our first freedom, which is under assault at every turn: in the courts, at the ballot box, and in the halls of government. Please, go to, sign the declaration, and get your friends to do so as well.

Further Reading and Information

Supreme Court Recognizes ‘Ministerial Exception’ to Employment-Discrimination Laws
Peter Schmidt | Chronicle of Higher Education | January 11, 2012

What Comes After Hosanna-Tabor
Matthew J. Franck | First Things | January 12, 2012

EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School, Michigan
The Beckett Fund for Religious Freedom | 2010

Manhattan Declaration


Comment Policy: Commenters are welcome to argue all points of view, but they are asked to do it civilly and respectfully. Comments that call names, insult other people or groups, use profanity or obscenity, repeat the same points over and over, or make personal remarks about other commenters will be deleted. After multiple infractions, commenters may be banned.