Cline on the Constitution: Religious Schools
This is the third segment on religious liberty cases decided last term by the Supreme Court.
Each case was met with the usual gnashing of teeth by those who bemoan any perceived chink in what to them is the sacred “Wall of Separation” between Church and State.
In previous postings I emphasized that the Constitution makes no mention of a “Wall of Separation” between Church and State. The metaphor was a product of Thomas Jefferson’s nimble mind. A metaphor the Supreme Court has from time to time found useful.
The Court of late, however, has moved by stops and starts to correct misinterpretations of metaphor that would turn the Wall into a prison for the faithful. The First Amendment was meant to wall government off from the religious not the other way around. It was not meant to be erected as a kind of prison Wall constraining citizens from full participation in civic life because of their faith.
Contemporary living in California is the perfect example of how government is barely competent to manage its most basic functions. Routinely it errors when it attempts to manage the private affairs of its citizens. And when it has the audacity to venture into the sphere of those who wish to engage in commerce with fellow citizens, ruination is the usual result.
For examples, witness the yearly failures of State government to prepare for and manage forest fires, the ruination of great cities, large and small, by failed programs to rescue the mentally ill and the drug addicted from the streets under the general rubric of programs for the “Homeless.” Or how we hunker down in our homes in fear of the wholesale release of criminals from prisons in the latest grand social experiment to prove murderers, rapists, and thieves are simply misunderstood. Nor do these failures deter government from attempting to manage every aspect of society, from establishing racial and gender quotas for businesses, to inculcating the children in our public schools with non-sensical critical race theory.
But all that failure is no deterrent to a government’s efforts to interfere with how religious institutions manage their own affairs by intervening in the most basic management of religious schools, the hiring and firing of critical personnel.
In Our Lady of Guadalupe School v Morrissey-Berru, two teachers at Catholic religious schools sued. Seemingly they fit into one of the endless classes of aggrieved groups protected by modern labor rules.
One teacher had taught at her school for a number of years. She was marked down on her classroom performance as having difficulty administering a new reading and writing program introduced by a new principle. She was asked to move from a fulltime position to part time. She declined and sued alleging age discrimination. A second teacher at a different school had served as a long-term substitute teacher for first grade and for a year as a full-time fifth grade teacher. She was denied a renewal of her contract. According to the school, her performance was judged poor for a “failure to observe the planned curriculum and keep an orderly classroom.” She sued alleging she was fired for requesting a leave to obtain treatment for breast cancer.
Both teachers signed contracts to teach at religious schools. They agree they had responsibility for teaching religious doctrine, leading their students in prayer and other religious activities sanctioned by the Church. The church argued the State could not intervene in personnel matters. The Ninth Circuit Court of Appeals ruled the State had that power. The United States Supreme Court reversed.
Justice Alito spoke to a core principle about the existence of religious schools. He related, “Most of the oldest educational institutions in this country were originally established by or affiliated with churches.” He went on to observe, “and in recent years, non-denominational Christian schools have proliferated with the aim of inculcating Biblical values in their students. Many such schools expressly set themselves apart from public schools that they believe do not reflect their values.”
Justice Alito wrote, The First Amendment, among other things, “protects the right of churches and other religious institutions to decide matters of faith and doctrine without government intrusion.” He cited a leading case, Hossana-Tabor et.al. vs. EEOC, a 2012 decision, which confirmed the principle applied to church schools and the hiring or firing of teachers at those schools.
“The religious education and formation of students” he wrote, “is the very reason for the existence of most private religious schools and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First amendment does not tolerate.”
The Supreme Court loosely refers to this principle as the “Ministerial exception.”
Because matters of church governance are protected by the Constitution, the autonomy with respect to internal management decisions essential to the institution’s central mission is also protected and that extends to “the selection of the individuals who play certain key roles.” Were a church not to have such independence, “a wayward minster’s preaching, teaching and counseling, could contradict the church’s tenets and lead the congregation away from the faith.”
In the instant case, both teachers signed contracts each year which detailed specific requirements that they teach their students articles of faith and lead them in in prayer, learning church doctrine and other religious exercises.
Justice Alito and the majority found that the mechanical application of formulas for determining who and who did not fit into the “ministerial” classification would lead the court into the thicket of making constant determinations of who was carrying out “ministerial” duties and who was not. In turn that would inevitably lead to a compromise of the church’s independence. It would create an ever-changing legal environment with every management decision being subject to review by federal judges incompetent to make such determinations.
Justice Alito said, “In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religious in question is important.”
The court concluded, “When a school with a religious mission entrusts a teacher with the responsibility of educating and forming students in the faith, judicial intervention into disputes between the school and the teacher threatens the school’s independence in a way that the First Amendment does not allow.”
For more writings by Phil Cline visit philcline.com
OPTIONAL READING:
Addendum on historical context.
For those who find the historical context of a Constitutional ruling interesting I’ve included a condensed version of the historical considerations outlined by the Court. It follows:
The Framers sought to prevent a repetition of the practices that had held sway in England both before and after the Colonies declared independence.
In the 16th century British statues gave the Crown the power to fill high “religious offices.” Acts of Parliament dictated what ministers could preach and imposed penalties for non-compliance.
One Act declared a minister who “preached or spoke any thing” in derogation of any part of the Book of Common Prayer could be sentenced to six months in jail for a first offense and, in a particularly brutal early version of the 3 strikes law, could face life imprisonment for a third offense.
After the Restoration, Ministers and “lecturer’s” were required to pledge “unfeigned assent and consent” to the Crown approved Book of Common Prayer. All ministers, schoolmasters, private tutors and university professors were required to “conforme to the Liturgy of the Church of England” and not “to endeavor any change or alteration” of the Church.
A later Act required that all schoolmasters and tutors be licensed by a bishop. The universities prohibited attendance or teaching by Catholics and Jews, as well as Protestants who did not conform to the State approved religion. Even the great legal lodestar Blackstone wrote, “persons professing the popish religion could not keep or teach any school under pain of perpetual imprisonment.”
British colonies in America also controlled the appointment of clergy. A Maryland law “prohibited any Catholic priest or lay person from keeping school or taking upon himself the education of youth.” New York law required an oath and license for any “vagrant Preacher, Moravian, or disguised Papist” to “Preach or Teach, Either in Public or Private.”
And history also confirms why the Crown and the early authorities in the United States sought to control religious education. If you want to control the person’s loyalty, you control his education. And that especially means religious education which might teach principles and values at odds with State approved orthodoxy.
As the court took pains to point out, Religious education has always been and today is important and vital to almost all major faiths.
In the Catholic tradition, religious education is “intimately bound up with the whole of the Church’s life.”
And, as the Court acknowledged, other religious faiths held similar values.
A core belief of the Puritans was that education was essential to thwart “the chief project of that old deluder, Satan, to keep men form knowledge of the scriptures.” In Judaism, the Torah is understood to require Jewish parents to ensure their children are instructed in the faith. In Islam, the acquisition of knowledge of religion and its duties is mandatory for the Muslim individual. Similar traditions of religious education can be found in the Mormon faith as well as Seventh Day Adventist which dates to the founding of their religions.
History reminds us there are good reasons the “Wall of Separation” protects Religious Schools and religious teaching from the rule making factories of modern government.