The Fate of the First Amendment Will Be Decided By These Nine Cases

May 26, 2020 by

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This month the Little Sisters of the Poor returned to the U.S. Supreme Court, once again defending their right to practice the Catholic Faith by refusing to provide for contraceptives in their health insurance plan.

This is a stark reminder that even years later the Obama administration’s assault on religious freedom continues to impact religious organizations. And other serious threats have since emerged.

Catholic educators especially are nervously awaiting court rulings that could have a severe impact on schools and colleges. That’s scary, but it’s also true that each case presents a new opportunity to re-establish the rights of religious educators under the First Amendment, should judges be so inclined.

Now is a great time for your prayers!

This month the Supreme Court heard arguments regarding the “ministerial exception,” a legal principle which prevents courts from interfering with the selection and removal of religious leaders or “ministers.” Catholic elementary schools in California are at the center of two cases under review: Our Lady of Guadalupe School v. Morrissey-Berru and St. James Catholic School v. Biel.

Effectively, the ministerial exception means that churches and religious organizations can set their own criteria for choosing, hiring, and firing certain employees with clear religious duties. It is essential that the Catholic Church be permitted, for example, to ordain only men without being sued for sex discrimination, or remove a missionary from a region without the threat of costly litigation.

Any religious organization needs the freedom to apply whatever criteria it deems necessary when choosing people to represent and teach its beliefs. The decision is fundamentally a religious one, and so it cannot be scrutinized by a court without risking government interference in religion and thereby violating the First Amendment.

Nevertheless, the Supreme Court has been cautious about applying the principle. It means that an employee designated a “minister” has no ability to file a discrimination claim, and so there are good reasons to be careful in defining the exception.

In 2012, the Court ruled in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the ministerial exception could be applied to a teacher who engaged in substantial secular duties but also taught religion and was formally deemed a “minister” by her church. The two new cases concern catechists at Catholic schools.

Under consideration is whether anyone who teaches religion—lay, religious, or clergy—should be under the ministerial exception, regardless of their job title or any formal religious certification as a “minister.” A broader question is whether teachers of other academic subjects should fall under the exception because, at least in a Catholic school, all teachers should be teaching the insights of the Catholic Faith as they relate to their subject. Teachers should also be witnessing to the Faith in both word and action, and they should be leading students in prayer.

An amicus brief to the Court prepared by Alliance Defending Freedom—and joined by the Association of Classical Christian Educators, the Association for Biblical Higher Education, and The Cardinal Newman Society—proposes a simple test for the Court to apply the ministerial exception: identify evidence that an employee of a religious organization substantially engages in religious functions, which are defined by the religious organization in a “good faith” effort to uphold its religious beliefs.

Another case to watch is InterVarsity Christian Fellowship/USA v. University of Iowa, which is now before the U.S. Court of Appeals for the Eighth Circuit. At issue is the University’s refusal to register a Christian organization, because it would require its leaders to adhere to its religious beliefs.

The case revolves around the ministerial exception, which is of concern to Catholic educators. The Becket Fund is defending the students, and a brief supporting them was filed in March by The Cardinal Newman Society, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Lutheran Church-Missouri Synod.

The Supreme Court is expected to rule very soon on whether federal law against sex discrimination can be used to prohibit religious organizations from upholding moral standards on homosexuality and gender. At issue is Title VII, which concerns employment, but educators are nervous because the education laws under Title IX are based upon Title VII’s nondiscrimination language.

The Obama administration tried to force schools and colleges under Title IX to admit “transgender” students to single-sex bathrooms, locker rooms, and sports teams under the guise of preventing sex discrimination. Faithful Catholic educators have consistently maintained that “sex” means male and female, as each person is created naturally, and laws against sex discrimination have always been rooted in the same understanding.

Now the Supreme Court is being asked to redefine “sex” in three cases: Altitude Express Inc. v. Zarda, Bostock v. Clayton County, Georgia, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission. The latter case concerns whether sex discrimination laws protect “gender identity,” and the others address “sexual orientation.”

Prior to the Court’s combined hearing of the cases in October, the U.S. Conference of Catholic Bishops (USCCB) weighed in with two strong amicus briefs defending religious organizations. Joining the briefs were The Cardinal Newman Society, the Catholic Bar Association, the Anglican Church, Southern Baptists, and Christian Schools International.

Both USCCB briefs highlighted the importance of upholding Catholic teaching on gender and sexuality in Catholic education:

Source: The Fate of the First Amendment Will Be Decided By These Nine Cases – Crisis Magazine

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