Supreme Court's Religious Hiring Decision: Is It Really That Suprising?

By Wallace B. Henley, Exclusive Columnist Friday, January 13, 2012

The Supreme Court of the United States (SCOTUS) has wafted the hint of a summery breeze across the increasingly chilly religious liberty landscape.

A unanimous court ruled Jan. 11 that, put simply, a religious group is free to select its own ministers, and that the government may not overrule the church or other religious organization’s ministerial appointments.

The case before the Court, “Hosanna-Tabor Evangelical Lutheran Church and School vs. Equal Employment Opportunity Commission,” involved a teacher dismissed from the church-operated school. She sued on the basis of a federal anti-discrimination statute. The church argued that the teacher violated one of its central procedural tenets in going to the courts to get her job restored. According to Hosanna-Tabor Lutheran Church, the teacher was regarded as a minister, teaching religious subjects as well as secular. SCOTUS’ bottom-line: government cannot dictate to a religious body who its ministers can and cannot be.

Adam Liptak, in The New York Times (January 11), thought the ruling might be SCOTUS’ “most significant religious liberty decision in two decades,” and that it “was surprising in both its sweep and unanimity.” What should be “surprising” is that the Court’s decision was “surprising.” Observers in a less litigious and secular-obsessed age might have considered the case a no-brainer.

What is also “surprising” – chillingly so – is that the federal government took the side of the argument that rested on the cratered principle that government could, in effect, define who is or is not a minister in a particular church or religious organization.

Specifically, SCOTUS said that to require “a church to accept or retain an unwanted minister” or to be punished “for failing to do so… interferes with the internal governance of the church.” By “imposing an unwanted minister, the state infringes the Free Exercise Clause (of the First Amendment),” and giving “the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause…”

This is a “surprising” ruling?

While we celebrate the SCOTUS-induced thaw, we must look at the Arctic mass in which that little pool of warmth has appeared. As the case exemplifies, it is an agenda-laden government and fawning cultural elite that are aiding and abetting the deep freeze on religious speech and practice.

However, the current administration, in the eyes of many in the consensus-defining establishments, consists of purists who would never bring a chilling effect to free speech and expression. The result is complacency by media watchdogs under the naïve assumption that there is nothing to fear. Yet at times, the Obama Administration has seemed downright hostile regarding certain religious liberty issues. A prime example is the administration’s health coverage policies, which would compel religious bodies to provide contraceptive and even abortifacient benefits to their employees under certain cases. The exemptions are so narrow “that even the ministry of Jesus would not qualify,” wrote Matthew J. Franck, in First Things (January 12).

Chief Justice John Roberts called the government’s position in Hosanna-Tabor a “remarkable view” – a polite way of saying the administration had to stretch to make its argument. That prompts the chilling question: How far will the current regime go in icing over religious liberty? If its support for the assumptions underlying the plaintiff’s argument in Hosanna-Tabor is any indication – quite far indeed.

That is a truly chilling portent.

Wallace Henley, a former Birmingham News staff writer, was an aide in the Nixon White House, and congressional chief of staff. He is a teaching pastor at Second Baptist Church, Houston, Texas. He is a regular contributor to The Christian Post.