ADF to Supreme Court: Only Religious Organizations Can Decide Who They Employ

February 11, 2020
John Harding

Who has the authority to decide who teaches children at a religious school, the school or the government?

That’s the important question that the U.S. Supreme Court will be considering in the cases Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel.

If the answer to this question is “the government,” then the First Amendment has been eviscerated. One of the fundamental purposes for the People’s ratification of the Free Exercise and Establishment Clauses was to prevent the government from interfering with religious organizations and how they choose employees who carry out religious functions.

The answer to this question, instead, is that the religious school itself has the authority to decide – without any courts or government officials interfering in the matter.

This week, Alliance Defending Freedom filed an amicus brief with the Supreme Court explaining why religious organizations alone should be able to make employment decisions when it comes to who teaches the faith within the organization. Our legal team is relying on Supreme Court precedent that holds churches, religious schools, and other religious non-profits don’t have to sacrifice their missions when they make employment decisions.

The fact that the Supreme Court even needs to address this issue shows that lower courts need direction. Some of them continue to test religious freedom’s limits when it comes to employment practices within churches and other religious organizations.

Unfortunately, that leads to confusion even among churches and religious organizations about their freedom to make employment decisions. Courts have ruled that some laws and regulations that apply to for-profit businesses simply don’t apply to ministers employed by churches or other religious organizations. But different rules may apply depending on whether an employer is a religious nonprofit and whether an employee is a minister.

When it comes to for-profit businesses, the government has placed some restrictions on how business owners make employment decisions. One example is the Civil Rights Act of 1964. That law generally prohibits employment discrimination based on religion, among other characteristics. But importantly, religious organizations are exempt from that requirement. Otherwise, we could see ridiculous legal claims, such as a Buddhist filing suit for being denied the rabbi position at a local synagogue.


Employment Decisions by the Government?

Our Founders wrote the First Amendment under the backdrop of a British government that decided who was to be employed by the state’s church and who was not. That kind of power is contrary to religious freedom. The Founders clearly wanted to stay away from such interference when they wrote, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

If courts and lawmakers get to decide who preaches at your church on Sunday, that’s clearly infringing on the rights of your church. It’s equally problematic for the state to call into question the employment criteria for those who teach children at your local Catholic school—which is at issue in both Our Lady of Guadalupe School and St. James School.

Thankfully, the Supreme Court has upheld these critical freedoms in a past case, saying in its Hosanna-Tabor decision that “the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.”

We’re praying that the Supreme Court upholds our country’s long tradition of religious freedom and makes clear that the state cannot decide who teaches the faith to the next generation.

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