My Take: Huge win for religious liberty at the Supreme Court
The Supreme Court handed down a landmark religious liberty ruling on Wednesday.
January 12th, 2012
09:58 AM ET

My Take: Huge win for religious liberty at the Supreme Court

By Douglas Laycock, Special to CNN

Editor’s note: Douglas Laycock, Professor of Constitutional Law at the University of Virginia, represented Hosanna-Tabor Evangelical Lutheran Church and School in the case the Supreme Court decided Wednesday.

(CNN) - Wednesday’s Supreme Court decision holding that ministers cannot sue their churches for employment discrimination was a huge win for religious liberty. It was unanimous, it was sweeping and it was unqualified.

This decision was about separation of church and state in its most fundamental sense. Churches do not run the government, select government leaders, or set criteria for choosing government leaders.

And government does not run the churches, select religious leaders, or set criteria for choosing religious leaders. The Court unanimously reaffirmed that principle on Wednesday.

Cheryl Perich was a commissioned minister at the Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Michigan. She taught religion every day; she led prayers and devotional exercises every day; she planned and led chapel services.

She also taught the rest of the fourth-grade curriculum. She was required to complete eight college-level theology courses; she was “called” to her office by a vote of the congregation; and she was commissioned as a “Minister of Religion.”

When she got sick, Hosanna-Tabor carried her at full pay and full benefits for seven months. This was a terrible hardship in a church and school with seven teachers, 84 students and deep financial problems.

In its effort to preserve a job for Perich to return to, the school put three grades in one classroom for a whole semester. It went far beyond the requirements of law in its efforts to accommodate her disability.

Finally, at the semester break, the school reluctantly decided it had to replace her. When she provoked a confrontation at the school and threatened to sue the church, the congregation rescinded her call, for insubordination and for violating one of the church doctrines she was supposed to teach and model.

There was a well developed church grievance process that she could have used, run by the denomination, with hearing officers independent of the local church.

And there was longstanding church teaching that disputes over ministry must be resolved in that process, by Lutherans who understood the church and its faith, and not by the civil courts.

The details of this employment dispute were not the issue in the Supreme Court. Rather, the issue was who decides.

If ministers were allowed to sue for employment discrimination, judges and juries would wind up deciding who is a good minister, worthy of retention, and who is not. These cases end with a jury deciding whether the employer had a good enough reason to justify its decision.

In Perich’s case, a jury would have decided whether she was fit for Lutheran ministry even after she defied Lutheran teaching.

The Supreme Court unanimously said that ministers cannot sue their churches for employment discrimination. It defined “ministers” broadly, to include priests and rabbis and imams and persons with mixed religious and secular duties.

And it said that the church need not explain its decision, because the reasons are none of the court’s business. The selection and retention of ministers is entirely the responsibility of the churches.

Some churches will exercise this authority wisely; some may not. Denominations and associations of churches would do well to establish grievance procedures that really work, like the one that Cheryl Perich failed to use.

But whatever the ratio of wise decisions to bad decisions, it is far better for the American tradition of religious liberty for the selection of ministers to be entrusted to the churches those ministers serve.

Wednesday’s decision also protects the right of churches to define the qualifications of their clergy. Some churches have requirements that are forbidden to secular employers.

Catholics, Orthodox Jews, and some Protestant denominations do not ordain women. Catholics require celibacy, violating laws on marital status discrimination in many states. Some denominations refuse to ordain sexually active gays and lesbians, violating sexual orientation laws in many states.

There are no exceptions written into the discrimination laws to protect these longstanding religious practices. They have been protected only by the constitutional rule that the Court reaffirmed Wednesday – that ministers cannot sue their churches for employment discrimination.

Of course, some members of these faiths would like to change these rules. But who is eligible for ordination is a theological issue to be fought out within each religious tradition, not an issue to be decided by courts or legislatures.

It would be absurd for courts to order an end to Catholic celibacy rules, or to entertain a class action alleging that women are underrepresented in the clergy of some denomination that ordains women but has not ordained as many women as men. The legal rule that prevents such lawsuits is the ministerial exception that the Supreme Court reaffirmed Wednesday.

Both the rules for selecting ministers, and the evaluation of ministers in individual cases, are decisions for the nation’s religious organizations – not the government. That is the welcome meaning of Wednesday’s Supreme Court decision.

The opinions expressed in this commentary are solely those of Douglas Laycock.

- CNN Belief Blog

Filed under: Church and state • Courts • Opinion • Religious liberty

soundoff (541 Responses)
  1. Rachel Ronchetti

    I agree that the government needs to bud out of the churches decions. Only the church knows what it takes to be ordained. If the government tried to make those decioins our religious befiefs would surely become just as corrupt as our government. Not to mention that it would go against the seperation of church and state. Leave the religious decions to the pope, and the government decions to congress. Getting ordained or becoming a minister is a sacred thing and letting the government get involved would talk away from the sacrament.

    May 15, 2012 at 12:09 pm |
  2. dreamer96

    It was a business decision, not a religious one....Was there a work contract signed?...Was there a violation of that contract?...Since she was sick, she could not work, and received pay for 7 months, but can any company fire a worker for missing days at work...yes..I have worked at a few companies that fired 100's of workers for missing three straight days of work, sick or not...

    May 12, 2012 at 4:19 pm |
  3. WDinDallas

    A win for religious freedom!

    You liberals/athiests need to read both Danbury Letters; the first one from the Danbury Baptist's and TJ's reponse to have full context on the subject matter. TJ was in favor of the state staying out of the church,"therefore, there is a wall of separation beween the church and state." He said nothing about religious beliefs influencing laws. That is why we have the 10 commandments on the Supreme Court building.

    May 12, 2012 at 2:08 pm |
    • Peteyroo

      And I thought the Ten Commandments were there because you were a bunch of morons.

      May 12, 2012 at 4:52 pm |
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    April 17, 2012 at 5:36 am |
  5. Fred

    What seperation of Church and State originally meant was that the Church could meddle in the affairs of the State but the State could not meddle in the affairs of the Church....now its been turned upside down...John Jay was the very first Cheif Justice and while he was such he was also president of the American Bible Association...can someone show me where the seperation of Church and State is there? America was founded by Christians..not Jews..not muslims..not godless atheists but Christians...of different denominations of course but Christians none the less....

    April 5, 2012 at 10:06 pm |
    • WoWT

      So what ?

      April 10, 2012 at 6:40 am |
    • V.S.

      The US was not founded by Christians, sorry to say. The evidence of this truth is as plain as the nose on your face.
      This country was founded by people, not a religion, and the people who founded it were of several different faiths, and yes, my understanding (which could be wrong) is that the majority of them were "monotheists" or "deists", and very few, if any, were christians.

      April 24, 2012 at 2:26 pm |
    • old golfer

      Actually, a good portion of the founding Father's were in fact, Deist. The two most influential were Deist's, Jefferson and Paine.

      April 29, 2012 at 3:16 pm |
    • danielwalldammit

      Yeah, that's a common narrative; it's also a bit of wishful thinking.

      April 30, 2012 at 5:47 pm |
    • Peteyroo

      Utter nonsense!

      May 12, 2012 at 3:08 am |
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    April 5, 2012 at 5:18 am |
  7. DaPoet

    As long as the "Church its Schools and none of its Students" don't receive any type of Govt. financial aid your point stands, however, once financial aid is accepted by a religious org. it must accept govt. over site.

    March 25, 2012 at 4:48 pm |
    • iminim


      May 17, 2012 at 6:27 am |
  8. CC

    Religion = man's worst idea.

    March 21, 2012 at 10:31 pm |
    • Praveen

      I was baptized into the Catholic cchurh as an infant. I have heard many things over the years that after you are saved the next step is baptism and so forth. I believe there is only 1 factor that assures going to heaven and that is John 3:16 ( you must believe in God and that Jesus died for your sins) and everything else is personal beliefs. I feel that baptism is up to the individual and if they feel it is significant in their life and means something symbolic to them.

      April 1, 2012 at 2:26 am |
    • jim

      @ Praveen have fun with all the murderers, rapist and child molesters in heaven as most of the US prison population meets the entry requirement.

      April 24, 2012 at 8:48 am |
  9. CC

    @ Dora Pull your head out of your..........Or just the bible will be enough for now. Atheist aren't a cult.
    We do not believe in anything(religious). We look to science/logic and facts for information and to expand our knowledge base. You can argue that is in itself a religion. However I disagree but that is my opinion.

    March 21, 2012 at 10:27 pm |
    • christina knight

      It is not a matter of opinion whether or not atheism is a religion. The Greek prefix 'a' means without. Atheism literally means without a belief in god... no more...no less. There is no cosmology or ethical belief system that is logically associated by necessity with atheism. Many atheists like myself accept a scientific world view but it is not a requirement of atheism. In any case I will that Atheism is absolutely not a religion,period. Please do not cede ground you do not need to sloppy thinking theists.

      May 20, 2012 at 4:14 pm |
  10. Easternsailor

    Poor for the Americans have been persecuted by My Name Jesus Christ and for you shall be called the children of God, the Giave Almighty!

    March 17, 2012 at 4:22 pm |
  11. shelou

    I am concerned that for some extreme right, the "good news" has been supplanted with their "persecution religion". They stay in the Old Testament because it gives free range to the of use persecution to punish and prove their faith. It's no wonder that the number of churches is vastly reducing. There cannot be any confusion about what was important to Jesus. In his last days and when he knew he would soon to die, what was his message? Was it gather the disciples and have them arm and rampage throughout the land of sinners and judge, persecute, humiliate, and punish? No, he made it clear to Peter, three times – feed my children, feed my children, feed my children. So, those professing their Christian values while despising the poor and focusing on persecution medicine and persecution religious practices to conquer their favorite Sin De Jour of the day, have no good news to offer and, even more ironically, have no understanding of the exceptionalism of America, where forcing religious beliefs and practices onto everyone else through laws and persecution is not the dream that brought the persecuted here; that America would look more like Salem, 1600. Most importantly, they know nothing of the good news that truly changes people's hearts and minds. We have not been called to persecute; we are not good at it; it takes omniscience.

    March 17, 2012 at 1:43 pm |
  12. DreamWeaver

    What part of 'separation of church and state' is unclear? Im tired of right wing extremist Chrisitians having so much influence in politics today, and even more tired of the "we have to get back to american christian values".I'll pass on that, thanks anyway. Oh, poor Christians getting picked on again. If you actually lived like Christ and truly wanted to be like Christ, give every wordly good you own away to the poor. Guess you 'forgot' that part. I wouldnt go as far as to say all religions are cults. We have freedom to practice religion in this country or not. Extremists of any religion are wrong. EXTREMISM IS WRONG!

    March 10, 2012 at 10:32 am |
  13. Just Say'in

    The church fought for their right to discriminate. What does that say about Christians?

    March 1, 2012 at 3:54 pm |
  14. Kumiko

    I like what I read today. I have wreoednd how many other nones were out there like me. Disillusioned, broken and unsure if there was ever any faith within me. Like you I was raised religiously and, yes, I feel too that I can't not believe in God, and I too have tried not to. But I am now in a place were I find one foot trying to find something better and one foot ready to run as fast as I can away from any commitment in a church. Frankly, I'm not sure I'm church material right now anyway as I've turned into somewhat of a cynic. I gave it 20 years of my life. Many times I felt like I needed to check my brain in at the door and was even counciled that my intelligence would hinder my spirituality. It's interesting that in my quest for enlightenment my atheist, Jewish friend, has taught me more about who this God is that we are supposed to belive in. The Jewish perspective of an unknowable one of the universe that carries over to that same oneness within ourselves makes so much more sense to me than the Christian perspective that God is knowable and we can influence his/her actions. I find the programing of my religion at odds with some kind of attempt to find my way back to God. And sometimes I think I'm just a coward that won't admit to dis-belief just in case he or she really is out there waiting to take my immortal soul to heaven. I'm intrigued enough by what you've written in your blog about what fundamentalism teaches that I may look into your book. But, like you say, I have to find my own way to God but perhaps your book will give a bit of a head start.

    March 1, 2012 at 2:56 pm |
    • Joe

      The beauty of true faith is that it is impossible. Its a misconception that faith requires you to 'throw in the brain' and just repeat what you're taught. Give 1 Cor. 2 a read sometime. There is a personal connection and understanding of God as your Father but its only possible through the Holy Spirit. That faith and love for God does not depend on anything the church has done, any religion has done, what our culture has done, or anything else; it is a personally real and confident understanding of something that made no sense before and unexplainably makes sense by the Holy Spirit. I know the frustration that you speak of because I went down the same road. Raised in church, left it in my late teenage years, spent many years trying to make things work for myself based upon my own desires and plans and in the end, when the time was right, Christ blew me away and the Holy Spirit allowed me eto understand the things that I could never possibly get before

      March 15, 2012 at 4:18 pm |
    • Joe

      don't give in to the cynicism and think that the only thing is ourselves or this world, there's something far more breathtaking our there for you when the time is right

      March 15, 2012 at 4:21 pm |
  15. Dora

    "–it is NOT OK for cults to dictate our direction as a country."

    That would include the secular and atheist groups that are very vocal and prolific and are fronted and supported by the likes of the politcally and financially powerful anti-American, religious bigoted atheist, Soros.

    February 26, 2012 at 11:39 am |
    • MandoZink

      Atheists fit no definition whatsoever as a cult. Atheists are people who are committed to facts and reason, and have not adopted any of the widely diverse mythologies inherent in world cultures. These religious belief systems are at odds with one another, unlike those who practice rational thought (the acceptance of facts). That is in no way a cult. All people, whether religious or not, develop more or less tolerance for the irrational, or perceptively harmful things that others believe or practice. Thus there is a percentage of atheists who get extremely irritated at having religious precepts with no basis in fact being forced upon their lives on a daily basis.

      February 28, 2012 at 9:15 pm |
    • vtxrider

      There is so much wrong with what you say. George Soros is not un-American. You are so narrowminded that anyone that doesn't agree with you must be evil and un-American. Second, he isn't an athiest. He is a Jew. Considering Christianities long history of intolerance and hate towards any other faith, even other Christians, I can see why you would be so confused.

      March 5, 2012 at 7:22 pm |
    • Peteyroo

      Atheists are the only smart people in the room. We are a counterbalance to the brain-dead believers who drool and wet themselves.

      May 13, 2012 at 10:27 am |
  16. Bob

    "Catholics require celibacy"

    But apparently grants waivers if a young boy is involved.

    February 17, 2012 at 5:39 pm |
    • Well Hung Jesus

      Very true. The Catholic Church up to the Poopness protect and promote child ra p e

      February 20, 2012 at 4:43 pm |
  17. Bob

    "Churches do not run the government, select government leaders, or set criteria for choosing government leaders." Too bad the writer starts off with a blatant lie.

    That is PRECISELY what the religous right is trying to pull off now.

    If I want a theocracy, I'll move to Iran.

    Short of that, keep your nose out of politics.

    February 17, 2012 at 5:29 pm |
    • Dora

      It is ignorant and false to eqate the theocracy of Iran and other Islamic countries, to the freedom of speech and vote choice we all have in this country. We have the right of freedom of speech–every single citizen–so the religious right, the atheists, the religious left, the secular left. whatever, have every freedom to express and promote their beliefs. Then, it is up to the voter to choose who they want to be their representative, whether president, senator, local government, etc. No one is breaking your arm, or demanding that you have to vote a certain way–you have the freedom to weigh all that is out there, make an educated opinion, and vote your way.

      February 26, 2012 at 10:47 am |
    • Miss Demeanor

      They want a theocracy with "America's God" as their co-pilot but don't worry about it... the public seems to have wised-up to the scam. They are well aware that two of our worst presidents, Dubbya and Jimmy Carter were proud born-agin' evangelical fundamentalist, "gawwwwwd is my co-pilot" believers in "Uhmurika's Gawwwwwd". It looks like the public learned its lesson from them...

      April 13, 2012 at 2:19 pm |
    • Miss Demeanor

      RE: Dora
      “It is ignorant and false to eqate the theocracy of Iran and other Islamic countries...”
      A Theocracy is a government ruled by or subject to religious authority. Religious zealots in this country trying legal means to keep mosques out of their neighborhood, attempting to limit the growth of islam are certainly equivalent to Theocracies keeping other religions out. If you believe that has not happened in the US. It was a valid analogy that you failed to grasp. Insulting someone you disagree with is low.

      April 13, 2012 at 2:35 pm |
  18. MrDune

    I would like to know why "religious liberty" seems to only apply to christian believing organizations? Why should they have more liberties than say muslims, hindu's, buddists, and aithiests? (forgive my spelling)

    February 8, 2012 at 2:10 pm |
    • Dora

      Did you not read the article? It said: "The Supreme Court unanimously said that ministers cannot sue their churches for employment discrimination. It defined “ministers” broadly, to include priests and rabbis and imams and persons with mixed religious and secular duties." The decision applies to all.


      February 26, 2012 at 10:22 am |
  19. Nii Croffie

    All religions including atheism are cults. SO LONG AS IT LEADS U TO AFFIRM ITS POSITION AGAINST THAT OF OTHERS IT IS A CULT. If u r not sure ask a North Korean about Kim IL Sung

    February 7, 2012 at 11:35 am |
    • burnz

      Atheism is not a cult. There`s no central doctrine or leader(s). I don`t know much about North Korea, but they believe the Kims have magical powers, therefore they aren`t atheist.

      February 7, 2012 at 4:13 pm |
    • Nii Croffie

      Personality cults are rife in the Communist Parties because of the need to compensate for the loss of belief in the supernatural. In my country I've had opportunity to watch docus on the Kims. It has never been about magic but visionary leadership. They are atheist just denominational atheists.

      February 8, 2012 at 3:30 am |
    • Dora

      Atheism is a cult–a cult of hate as is evident by the posters here. It is cult that is pushing their agenda by putting up billboards of hate against religious beliefs during the Christmas season. In a particular state, I believe it was Iowa, atheist convicts went to court to have the right to study atheism, as a religion, and the state court granted that right. So, yes, it is a cult and it is a belief system based on hatred towards those who disagree with their doctrine of disbelief.

      February 26, 2012 at 11:32 am |
    • fintastic

      Dora the dumb-ass..

      February 29, 2012 at 3:05 pm |
    • Aunty Venom

      False... all religions/any religion = theism, no religion = a-theism

      Atheism does not confirm any religious belief it is, by definition, devoid of that confirmation. To borrow an analogy used elsewhere "If atheism is a religion, then 'off' is a t.v. channel".

      Now some atheists will claim, and rightfully so, that all religions are equally invalid until one of them prove themselves correct via evidence, but atheism makes no claims of its own, it has no "tenets" or "articles of faith". Atheists are, obviously, more likely (but not required) to subscribe to current cosmological models (i.e. The Big Bang Theory), abiogenesis, evolution, and the current position of science as science offers evidence that faith, by definition, does not. However, cosmology, abiogenesis, and evolution are NOT a part of atheism. They are not some sort of dogma that one must follow lest one be "excommunicated" from atheism (and where, exactly, do you think one would be if this could happen).

      Logic and reason are not a "cult". Your use of the word is all-inclusive and therefore renders it meaningless. Get a dictionary, and try looking up these words you are attempting to string into sentences before making illogical arguments.

      March 6, 2012 at 1:29 pm |
    • CC

      Dora you're what's wrong with the internets.

      March 21, 2012 at 10:28 pm |
    • Brian

      Is anyone else amused that the coordinated religious response to the growing secular movement is to try and call us a religion? I'm not sure if it's just a fundamental inability to grasp that people don't have to have dogma, or an effort to try and bring us down to their level. I've been an atheist for 15 years. I've not felt the need for a 'personality cult'. You may need to consider that communist countries engage in 'social education' which indoctrinates children into belief in the good of the state and it's leaders, much as young children in other countries are indoctrinated into religions by their families since childhood. Perhaps then, the situation you ascribe to atheism is really a symptom of communism.

      March 25, 2012 at 11:30 am |
    • wholewitt

      You have no clue what your are talking about when it comes to Atheism. Atheism is a non belief, it can't be a cult. Most fundamentalist religions are close to being cults because the congregation often believes in the infallibility of their leader. Any person claiming to believe in a god is actually an atheist in regards to all the other gods of present and history. Do you believe in Krishna or Thor? If no,t you are a non believer. Religions brain wash children into their belief dogma and only about 10% get out of it because they have the logical intelligence to see the light, if you will.

      April 13, 2012 at 11:22 pm |
    • christina knight

      It is not a matter of opinion whether or not atheism is a religion or cult. The Greek prefix 'a' means without. Atheism literally means without a belief in god... no more...no less. There is no cosmology or ethical belief system that is logically associated by necessity with atheism. Many atheists like myself accept a scientific world view but it is not a requirement of atheism. In any case I will say that Atheism is absolutely not a religion or cult,period. Only sloppy thinking theists consider atheism a religion or cult.

      May 20, 2012 at 4:20 pm |
  20. Solex

    I saw a report showing a white, Christian, conservative woman asking Santorum as to how he was going to get "Obama" out of Washington because he is actually a Muslim and therefore "not my president" and she would not call him so.

    Newsflash cultists (And yes – ALL religions are cults – including Christianity) , even if Obama is a Musllim THAT WOULD NOT PRECLUDE HIM FROM BEING PRESIDENT AS THERE IS NO OFFICIAL STATE RELIGION OF THE USA.

    This is why I believe that it may be fine for people to use their beliefs in selecting a leader, it is NOT OK for cults to dictate our direction as a country.

    February 6, 2012 at 4:15 pm |
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The CNN Belief Blog covers the faith angles of the day's biggest stories, from breaking news to politics to entertainment, fostering a global conversation about the role of religion and belief in readers' lives. It's edited by CNN's Daniel Burke with contributions from Eric Marrapodi and CNN's worldwide news gathering team.