Supreme Court Rejects Obama Administration Power Grab Over Churches in Hosanna-Tabor v. EEOC

by Hans Bader on January 11, 2012 · 22 comments

in Features, Labor, Legal, Personal Liberty, Regulation

Post image for Supreme Court Rejects Obama Administration Power Grab Over Churches in <i>Hosanna-Tabor</i> v. <i>EEOC</i>

The Supreme Court has rejected the Obama administration’s argument that it can dictate who churches hire as ministers or clergy in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The Obama administration unsuccessfully argued that the government can dictate who churches hire, as long as it also subjects secular employers to the same dictates regarding who they hire (so-called rules of general applicability). Taken to its logical conclusion, this argument would allow the government to ban a church or synagogue from hiring based on religion (defeating the whole purpose of religious freedom, which is to allow churches to promote their own religion) or sex (preventing the Catholic Church from having a male priesthood). No Supreme Court justice bought the administration’s argument, made on behalf of the Equal Employment Opportunity Commission (EEOC). The Supreme Court unanimously found that such government control over who churches can hire would violate the religion clauses of the First Amendment.

If federal antidiscrimination laws covered churches’ hiring of clergy, as the Obama administration demanded, they would have to not just avoid discriminating based on things like sex or religion, but would also have to radically alter sensible hiring criteria by eliminating longstanding, neutral church practices that have the affect of inadvertently screening out more members of a minority group than of other groups (so-called “disparate impact” or “unintentional discrimination”). For example, some branches of the Lutheran Church have hiring criteria for religious broadcasters on their radio programs, such as “knowledge of Lutheran doctrine,” and “classical music training,” that few minorities satisfy (only 2 percent of all people with Lutheran training are minorities, and only 0.1 percent of people with both Lutheran training and classical music training are minorities), given the Lutheran Church’s historical roots in overwhelmingly white areas like Germany, Scandinavia, and Minnesota. Even though they are happy to have black applicants, and do not treat black applicants worse based on their race, the EEOC could easily sue them for racially disparate impact if the Obama administration’s argument had been accepted. (The religion clauses of the First Amendment not only protect who churches hire as ministers, but also other people who serve as “voices of the church,” such as theology professors, and religious broadcasters on behalf of a church.)

We previously wrote about ways that the Obama administration is attacking religious freedom and separation of church and state at this link. We described how the Equal Employment Opportunity Commission is wiping out jobs and discouraging hiring and job creation through onerous interpretations of federal employment laws, at this link.

The extreme position taken by the Obama Justice Department in the Hosanna-Tabor case is a reflection of ideologically-based hiring. Under the Obama administration, the Justice Department has chosen to hire only liberal lawyers, not moderates or conservatives, for key Justice Department posts that are supposed to be non-political career appointments. Although many experienced lawyers are out of work in the current economic slump, the Obama Justice Department has hired many liberals who have no real-world legal experience, rather than hiring based on merit.

More commentary about the Hosanna-Tabor case can be found at this link. (The Obama administration suggested in its briefs that freedom of association could provide a theoretical check on government demands that institutions not hire based on specified criteria, even if — as it claimed — religious freedom does not limit the reach of employment laws that apply to both secular and religious employers. But this suggestion was disingenuous, since the administration and the EEOC have argued in other cases that free-association rights are outweighed and overridden by the government’s compelling interest in eradicating discrimination. And free-association defenses, unlike religious-freedom defenses, are generally losers, as the Supreme Court’s Hishon, Jaycees , and New York State Club Association decisions illustrate. Those rulings held that the government’s compelling interest in eradicating discrimination overrode the mere free-association rights of a law firm and various private clubs.)

Fong January 11, 2012 at 4:59 pm

Although I’m not religious, I have to agree with everything that is written here and the judges verdict on this asinine lawsuit. I’m just waiting for the attacks on the Supreme Court justices who are conservative even though all of the agreed in an unanimous decision. It will come and it will be vile.

NWBill January 11, 2012 at 9:48 pm

This was an example of an administration trying to sneak a curveball past a Supreme Court in an election year, while continuing to act as if it’s smarter than everyone else – even Supreme Court justices. The Obama admininstration’s drive to force its’ own ideas of “social justice” and the “social contract” on Americans was given a called third strike today. It’s especially embarassing because even Justice Kagan didn’t go along with this crap; and one of the next cases on her docket, as well as the rest of the Supremes, is Obamacare. I wonder if, now that Elena Kagan is no longer under Barack Obama’s thumb, she’ll take a fresh look at the law she had a lot to do with (more than she’d like the American public to know about) putting in place, when she sits in judgement of it’s constitutionality. Maybe some time and distance (and the fact that Obama and his Chicago thugs can’t do anything to her) will make her come to her senses when it comes to that horrendous law.

MarkJ January 11, 2012 at 6:21 pm

Definitely this week’s “Eric Holder Smackdown”.

Here’s a real mystery: Why is Eric Holder still sitting behind a desk in DoJ? He should have been tumbling under Obama’s million-dollar tour bus months ago…..

DonM January 11, 2012 at 6:33 pm

Next Suit: Government wants to direct who you marry. People discriminate when they chose their marriage partners, and the government has a compelling interest in fighting discrimination.

kcom January 11, 2012 at 7:09 pm

They’re also suing to force 50% of the population to use their left hands in eating and other activities, thus ending the appalling discrimination based on handedness. You should pray for a good number in the ensuing lottery.

bobby norwich January 11, 2012 at 8:31 pm

It isn’t going to take long for teachers in religious schools to shun
teaching in them as they will be second class teachers not protected by
any federal/state employment laws such as workers compensation for job-related injuries, minimum wage, overtime rules etc. If such a
teacher, I’d earn my income teaching in a non-religious school, but
volunteer for Sunday school to fulfill some religious mission.

Over time, it will be an interesting social experiment to see how abusive will be those employers exempt from federal/state employee protection laws — a perfect parallel universe.

Kevin K January 12, 2012 at 2:32 pm

The Private teachers usually have less benefits and income, but they work there because they care about children. (This has been going on for decades). The overall work environment is often much better however. Lol, at government schools treating teachers well. If the teachers start leaving they will raise the pay, free enterprise is an amazing thing, supply and demand. Freedom is awesome!

anon January 11, 2012 at 8:39 pm

I don’t understand. Aren’t President Obama and vice-President Biden noted scholars of Constitutional Law? If so, why weren’t they deft enough to realize that forcing religious institutions to f0llow secular law violated the First Amendment? Was it that their study copies of the Constitution, as provided by the ACLU, were missing some things?

Hmmm, I’m pretty sure their copies are also missing Amendment 2. The question is whether or not they are mathematically astute as to realize that an integer between 1 and 3 might be missing.

wagnert in atlanta January 11, 2012 at 10:17 pm

Would the EEOC’s interpretation of the law mandate that a certain percentage of (e.g.) Southern Baptist clergy be practicing Muslims?

If not, why not?

To quote a judge I read about recently, “How stupid do you think we are?”

poppy January 13, 2012 at 3:31 pm

Obviously, not that stupid. And yes, it involves muslims.

punditius January 12, 2012 at 12:08 am

So…does this put paid to the denial of student religious organization funding by public colleges, which are based on the leftist arguments of that these organizations discriminate by requiring that their officers adhere to the core beliefs of the religions involved?

bobby norwich January 12, 2012 at 3:05 am

Wow, they’ll be a mass exodus of teachers from religious schools when they realize that federal/st­ate employee protection laws no longer apply to them.

A partial list of protection­s not afforded to “ministeri­al employees” in religious organizati­on include: The Fair Labor Standards Act (FLSA), Occupation­al Safety and Health Act (OSHA) , Workers Compensati­on Act, Employee Benefit Security (ERISA), Family and Medical Leave Act (FMLA), Equal Opportunit­y Employment Act (EEOC), Americans with Disabiliti­es Act (ADA), Veterans Preference Act (VPA), not to mention other state protection laws.

Who but the dregs of the employment pool would work as a teacher in a religious school, unless either for purely missionary purposes or with independen­t wealth?

Mike Bergsma January 12, 2012 at 12:07 pm

The working conditions for teachers at private schools is vastly superior to those in public (government run) schools. The so called gevernment protections has made teaching harder in public schools.

Lee Reynolds January 12, 2012 at 3:07 am

Sometimes I can’t believe just how vile the left can be.

Disparate impact? My God the lengths these people will go to.

This agency and the people who staff it, need to be given their pink slips, along with their entire world view.

Ted Stryker January 12, 2012 at 7:43 am

Hans bader you are dishonest. You should know if you wrote the article that the suit was begun under the Bush Administration and not Obama. There’s enough to be angry at the current Adminsitration for without making things up. There goes your credibility…

Arlingtonian January 12, 2012 at 10:23 am

Ted’s comment is misleading. The Bush Administration never argued that religious freedom didn’t protect churches against suits over who they selected as ministers, although the EEOC back then did argue that the ministerial exception didn’t cover some private religious school teachers whose duties were, in its view, primarily secular.

It was the Obama Administration that made the sweeping claim that religious freedom doesn’t protect churches’ choices even of ministers, and that “rules of general applicability” aren’t even subject to religious-freedom-based limits. Thus, it was the Obama Administration that is appropriately described as making a major “power grab” over churches and religious schools.

richard40 January 12, 2012 at 6:19 pm

I just thought of something. In a way we should thank Holder for being stupid enough to press a lawsuit like this, since we now have a very clear supreme court decision supporting religious liberty. If it was not for the tyrannical power grab by Obama/Holder, we would not have this decision, and religious liberty would be less well protected.

As for purely secular positions, like janitors, I could see the ministerial exception not applying. But for any job where the applicants religion is part of the necessary qualifications for the job, there should definitely be a realigious exception. Although now that I think of it, wanting to hire janitors that are a part of the congregation, even if that results in disparate impact, should be legit as well.

joe jenkins January 18, 2012 at 6:52 am

I agree with richard.
The Obama administration went for the jugular and got nailed for it.

It’s a great day for religious freedom.

Hosanna-Tabor is one of the greatest Court decisions I’ve ever seen.
In one unanimous decision the Court ended the threat of anti-discrimination
laws moving into the churches and completely secularizing the churches.

Any intellectually honest secular liberal must be contemplating suicide right now.

N. Scott February 7, 2012 at 10:40 pm

This man is dangerous.

Joe DuPont February 9, 2012 at 5:35 pm

God bless Cardinal-designate Timothy Dolan for blasting “Chairman” Obama
regarding ObamaCare’s evil suppression of our Constitutionally guaranteed
liberties. Roman Catholic Bishop Joseph McFadden also called Obama to
task for the government’s control of the minds and spirits of our school
children. It is about time that all religious leaders acknowledge the
dangers which Obama and his anti-constitutional administration present.
Besides having the arrogant look of Mussolini , Obama seems to enjoy
dictatorial-like powers more and more. It is scary how our government
won’t use pig grease to lubricate bullets designed to kill our enemies for
religious reasons and yet blatantly ignores the valid beliefs of fellow
religious US citizens!

Comments on this entry are closed.

{ 2 trackbacks }

Previous post:

Next post: