Hosanna-Tabor Evangelical Lutheran Church And School v. Equal Employment Opportunity Commission (2012) (Part 2) – Guest Essayist: John O. Tyler

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Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012): Protecting Religious Liberty in American Schools

In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012), the federal government tried to force a church, against its will, to hire a minister to teach in the church’s school. The US Supreme Court held that the federal government could not force the church to do so. Churches are free to shape their faith and mission under the Free Exercise clause by selecting their own ministers and religious teachers. The Establishment Clause prohibits any government involvement in their selection.

This essay briefly explains the history of important Supreme Court decisions on religious liberty in the schools before Hosanna-Tabor (2012). Many of these cases restricted the religious liberty of schools and students. This essay then explains the Supreme Court’s decision in Hosanna-Tabor (2012), an important case protecting the religious liberty of schools and students. This essay concludes by briefly surveying five legal strategies, with case authorities, for protecting religious liberty under the First Amendment.

A. Before Hosanna-Tabor (2012): Supreme Court cases restricting religious liberty

The First Amendment protects religious liberty: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” The first clause is known as the Establishment Clause. The second clause is known as the Free Exercise Clause.

Freedoms cannot defend themselves, and Constitutional guarantees of religious liberty are not self-enforcing. Beginning in 1962, people and organizations opposing religious liberty have filed law suits seeking to purge religious content from all schools in the United States.

These people and organizations enjoyed significant early victories in restricting religious liberty. School prayer was attacked in Engel v. Vitale (1962). Engel outlawed school prayer in public schools. Engel involved compulsory recitation of the following prayer: “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” Justice Hugo Black, in a 6-1 decision, held that the prayer violated the Establishment Clause of the First Amendment, made applicable to the states through the Fourteenth Amendment. The prayer was a religious activity composed by government officials as part of a governmental program to further religious beliefs.

Abington School District v. Schempp (1963) and its companion case, Murray v. Curlett (1963), outlawed prayer in Pennsylvania and Baltimore public schools. Bible verses were read, without comment, followed by recitation of the Lord’s Prayer. Students were excused upon parental request.

Justice Thomas C. Clark, in an 8-1 decision, held this practice violated the Establishment Clause. Justice Clark’s opinion cited expert testimony that New Testament verses were “psychologically harmful” to Jewish children and “caused a divisive force within the social media of the school.”

Schempp established the following test. If either the purpose or the primary effect of the government action advances religion, then the action is unconstitutional. The purpose of any government action must be secular. The primary effect of any government action must neither advance nor inhibit religion.

Wallace v. Jaffree (1985) outlawed moments of silence in public schools. Wallace involved an Alabama law authorizing one minute of silence “for meditation or voluntary prayer.” Justice John Paul Stevens, in a 6-3 decision, found the statute violative of the Establishment Clause. The purpose of the statute was to endorse religion. The statute was not motivated by any clearly secular purpose.

Stone v. Graham (1980) outlawed posting the Ten Commandments in public schools. Stone involved a Kentucky law requiring the posting of the Ten Commandments in classrooms. The posted copies were purchased with private contributions, and the Kentucky statute recited a secular purpose: “The secular application of the 10 Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.”

The Supreme Court, in a per curiam opinion with three dissents, held the statute violated the Establishment Clause. Since the Ten Commandments did not confine themselves to secular matters, the law had no secular legislative purpose. Posting the Ten Commandments served no constitutional educational function. “If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments.”

Lemon v. Kurtzman (1971) outlawed state aid to parochial schools. Pennsylvania reimbursed parochial schools for teacher salaries and materials incurred in teaching secular subjects. Rhode Island supplemented the salaries of such teachers.

The Pennsylvania statute prohibited payment for any course containing “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” Nevertheless, Chief Justice Warren Burger, in a 7-1 decision, held that such aid violated the Establishment Clause.

Justice Burger wrote that the Establishment Clause was designed to avoid the “three evils” of “sponsorship, financial support, and active involvement of the sovereign in religious activity.” These goals required three tests. First, the statute must have a secular legislative purpose. Second, its principal or primary effect must be one that neither advances nor inhibits religion. Third, the statute must not foster “an excessive government entanglement with religion.”

Lemon held that the Rhode Island and Pennsylvania statutes failed the third prong of fostering “an excessive government entanglement with religion.” Although the state could easily ascertain the content of secular textbooks, teachers could easily and impermissibly foster religion. Furthermore, state aid to parochial schools could lead to such political divisiveness as would “pose a threat to the normal political process.”

B. Hosanna-Tabor (2012)

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012) holds that Americans are free to choose their ministers and religious teachers without regard to federal discrimination laws. Churches have the sole authority to select and control those who minister to the faithful.

Hosanna-Tabor Evangelical Lutheran Church and School classified its teachers into two categories, “called” and “lay.” “Called” teachers are called to their vocation by God, commissioned as ministers, and performed duties combining teaching and ministering. “Lay” teachers, on the other hand, are not even required to be Lutheran.

This case involved a “called” teacher who took a leave of absence for narcolepsy. She requested reinstatement before the school considered her ready. The teacher threatened to sue when the school denied her request. The school rescinded her call and terminated her employment for “insubordination and disruptive behavior.”

The teacher sued for reinstatement under the Americans with Disabilities Act (“ADA”). The ADA prohibits discrimination by employers based on disability. It also prohibits retaliation against individuals for opposing acts prohibited by the ADA. The school claimed a First Amendment “ministerial exception” to government regulation of its ministers.

Hosanna-Tabor raised two issues. First, do federal discrimination laws govern the selection of leaders by religious organizations? Second, can the federal government compel the school to reinstate the teacher as a “called” teacher? Chief Justice Roberts, writing for a unanimous court, answered both questions “no.”

The First Amendment provides, in part, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Familiar with life under the established Church of England, the founding generation sought to foreclose the possibility of a national church. By forbidding the “establishment of religion” and guaranteeing the “free exercise thereof,” the Religion Clauses insured that the federal government, unlike the English crown, would have no role in filling ecclesiastical offices.

The Free Exercise and Establishment Clauses bar employment discrimination suits by ministers against their churches. Churches are free to shape their faith and mission under the Free Exercise Clause by selecting their own ministers and religious teachers. The Establishment Clause prohibits any government involvement in their selection.

C. Five strategies for protecting religious liberty

The first strategy is that government may not hamper freedom of religion and expression when their exercise is harmless to others and to the state. West Virginia State Board of Education v. Barnette (1943) involved a West Virginia statute that required every student, on pain of expulsion, to salute the flag and recite the pledge of allegiance. The Barnette plaintiffs were Jehovah’s Witnesses who considered the salutes a form of idolatry prohibited by Exodus 20:3-5.  The issue in Barnette was whether compulsory flag salutes violate the freedom of religious belief under the Fourteenth Amendment.

The Barnette Court found they do. The state may “require teaching by instruction and study of all in our history and in the structure and organization of our government, including the guarantees of civil liberty, which tend to inspire patriotism and love of country.” Compulsory flag salutes and pledges, however, go beyond instruction and study. They compel students to declare a belief.

“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” Constitutional rights may be denied only in the presence of grave and immediate danger to interests that the state may lawfully protect. Freedom of religion and expression may not be hampered when their exercise are harmless to others and to the state.

The second strategy is that government may not substantially burden the free exercise of religion by individuals or their businesses. Burwell v. Hobby Lobby Stores, Inc. (2014) evaluates the federal government’s power to coerce business owners to violate their religious beliefs. Hobby Lobby is a closely held for-profit corporation whose owners hold sincere Christian beliefs that life begins at conception. “Obamacare” regulations required Hobby Lobby to provide coverage for four forms of contraception that destroy fertilized human eggs. Hobby Lobby refused to comply. The federal government imposed a $475 million annual fine to coerce compliance contrary to the owners’ religious beliefs.

The Religious Freedom Restoration Act of 1993 (“RFRA”) provides that “Government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the Government “demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” As amended by the Religious Land Use and Institutionalized Persons Act of 2000, RFRA covers “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

Obamacare regulations required Hobby Lobby to provide coverage for twenty methods of contraception. Hobby Lobby objected to four methods that kill fertilized eggs by preventing their attachment to the uterus. The controlling issue in the case was whether Hobby Lobby, a closely held “for profit” corporation, was a protected “person” under the under Religious Freedom Restoration Act.

Justice Samuel Alito, in a 5-4 opinion, held that Hobby Lobby was a protected “person” under the Act. Justice Alito relied on the Dictionary Act, 1 U.S.C. § 1, that provides: “In determining the meaning of any Act of Congress, unless the context indicates otherwise, the words ‘person’ and ‘whoever’ include corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” [Emphasis added]. Hobby Lobby, as a corporation, was clearly a “person” under the Religious Freedom Restoration Act.

The third strategy is that government may not discriminate against religious speech and activities. The Freedom of Speech Clause of the First Amendment prohibits government from engaging in “viewpoint discrimination” against religious activities. Government must afford religious activities the same opportunities it affords secular activities. Two cases establish this principle.

The first case, Lamb’s Chapel v. Center Moriches Union Free School District (1993), involves a New York school board. State law permitted after-hours use of school property. The board permitted use of school property for social, civic, and recreational purposes, (Rule 10), but prohibited use for religious purposes (Rule 7).

A Christian church made two requests to use school facilities for a film series by Dr. James Dobson on child rearing. The board denied both requests as “church-related.” Lamb’s Chapel considered whether the school board could discriminate against religious speech.

Justice Byron White, in a 9-0 decision, answered that government could not discriminate against religious speech. The facilities were not denied because of the subject, child rearing, but because of the religious viewpoint. Such “viewpoint discrimination” cannot withstand strict scrutiny under the First Amendment.

The second case, Good News Club v. Milford Central School (2001), involved the same New York law. Milford Central School enacted a policy permitting the use of its building by district residents for instruction in education, learning, and the arts. It also permitted use for social, civic, recreational, and entertainment purposes.

The Good News Club, a Christian children’s club, was denied use of the building because school policy prohibited religious worship. Club activities included songs, Bible lessons, scripture memorization, and prayer. Justice Clarence Thomas, in a 6-3 decision, found the school’s denial violated the First Amendment’s Freedom of Speech Clause. Furthermore, the Establishment Clause did not require the school to exclude the club.

Thomas wrote that Milford Central School operated a limited public forum. The state may restrict speech in such a forum, but its power to restrict speech is subject to two limits. First, the restriction must be reasonable in light of the forum’s purpose. Second, under Lamb’s Chapel, the restriction must not involve “viewpoint discrimination.” Speech cannot be excluded because of its religious nature.

The school’s act demonstrated an impermissible state “hostility” to religion. This case was not akin to cases where students felt compelled to act within the classroom setting. The club’s instructors were not teachers, the meetings were after-hours, and parental permission was required for attendance.

Justice Thomas lastly condemned “heckler’s veto” jurisprudence in religious expression cases. “We decline to employ Establishment Clause jurisprudence using a modified heckler’s veto, in which a group’s religious activity can be proscribed on the basis of what the youngest members of the audience might misperceive.”

The fourth strategy is that Americans are free to honor our religious traditions in public. Two recent cases establish this principle. Van Orden v. Perry (2005)  involved a monument honoring the Ten Commandments. Town of Greece, New York v. Galloway (2014) involved public prayer in government meetings.

Van Orden v. Perry (2005) involved a monument containing the Ten Commandments on the Texas capitol grounds. Van Orden, a suspended attorney, sued to force the monument’s removal under the Establishment Clause. Justice Rehnquist, in a 5-4 decision, ruled the monument did not violate the Establishment Clause.

Rehnquist began by holding that Lemon v. Kurtzman (1971), which prohibits “excessive government entanglement with religion,” is inapplicable to a passive monument. Instead, the analysis should be driven by the monument’s nature and the nation’s history. The Ten Commandments are clearly religious, but they also have an undeniable historical meaning. Rehnquist noted numerous depictions of Moses and the Ten Commandments on federal buildings and monuments in Washington. The Texas monument did not violate the Establishment Clause simply because it contained religious content or promoted a message consistent with religious doctrine.

Town of Greece, New York v. Galloway (2014) involved public prayer. The town of Greece opened its monthly board meetings with a prayer by local clergy selected from congregations listed in the local directory. The prayer program was open to all creeds, but since the majority of local congregations were Christian, a majority of the prayer givers was Christian. Plaintiffs claimed the prayer program violated the Establishment Clause by preferring Christians to other prayer givers. Plaintiffs sought an order limiting the town to “inclusive and ecumenical” prayers referring only to a “generic God.”

Justice Anthony Kennedy upheld the town’s prayers in a 5-4 decision. The Establishment Clause must be interpreted “by reference to historical practices and understandings.” The governing issue is whether the prayers fit within the tradition followed by Congress and state legislatures. This tradition was approved in Marsh v. Chambers (1983), which upheld Nebraska’s employment of a legislative chaplain. The Court found that the Town of Greece’s prayers fit within this tradition. The plaintiffs’ requested prayers to a “generic God,” on the other hand, did not.

Plaintiffs also complained that the prayers violated the Establishment Clause because they coerced citizens to engage in religious observance. This coercion offended plaintiffs, making them feel excluded and disrespected. The Court found no legal coercion. The board did not direct the public to participate in the prayers, single out dissidents for opprobrium, or indicate its decisions might be influenced by a person’s acquiescence to the prayer. Justices Thomas and Scalia contrasted the prayers in this case to the coercive state religious establishments that existed at the founding. Those establishments exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine.

The fifth strategy is that Americans are free to choose their ministers and religious teachers without government interference. Churches have the sole authority to select and control those who minister to the faithful. Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012), discussed above, holds that Americans are free to choose their ministers and religious teachers without regard to federal discrimination laws.

Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (2012) Supreme Court decision:  https://supreme.justia.com/cases/federal/us/565/10-553/

John O. Tyler, Jr., JD, PhD is Professor of Law and Jurisprudence at Houston Baptist University.

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