US: Hosanna-Tabor Ruling May Impact Future Religious Liberty Cases


By Michelle Bauman

The U.S. Supreme Court’s move defending religious groups’ right to determine their leaders could significantly affect future cases dealing with religious freedom, a legal expert says.

University of Notre Dame law professor Richard Garnett said that the ruling “makes it very clear that the First Amendment would not permit the government to second-guess a religious community’s decision” in appointing church authorities.

Garnett told CNA on Jan. 12 that the decision was important in part because it clarifies that religious freedom properly belongs to religious communities and institutions as well as individuals.

In their unanimous Jan. 11 decision – which was hailed by many as a victory for religious liberty – the U.S. Supreme Court justices upheld the “ministerial exception” that permits religious groups to make employment decisions without government interference.

During the case, speculation had arisen that if the “ministerial exception” was not upheld, the government could force the Catholic Church to ordain women in order to avoid discrimination lawsuits.

Garnett said that although this scenario would never have happened, it was good to have the Supreme Court “explain why that could never happen.”

He also said the ruling could have a significant influence on other religious liberty cases because the justices “unanimously rejected” the Obama administration’s view of what qualifies as religion, sending a clear message that it was “inappropriately narrow.”

Cases involving religious freedom in the U.S. have abounded in recent months. A controversial mandate issued by the U.S. Department of Health and Human Services in August of 2011 requires health insurance providers to cover contraception and has very narrow religious exemptions.

Catholic Charities in Illinois and Boston have recently been forced to discontinue their adoption services in recent years because they were not willing to place children with homosexual couples.

Last fall, the U.S. bishops’ Migration and Refugee Services was denied its application for a federal grant renewal to aid victims of human trafficking – despite excellent reviews – after it refused to offer referrals for abortions, contraception and sterilizations.

Garnett explained that although the Hosanna-Tabor ruling does not set a direct precedent for such cases, it has “thematic connections” to them that could influence future court decisions.

The case dealt with Cheryl Perich, a teacher at Hosanna-Tabor Evangelical Lutheran Church and School of Redford, Mich.

Perich, who had a sleeping disorder, returned from disability leave to find that a substitute had already been hired to replace her for the year. When she threatened to sue to get her job back, she was fired.

Hosanna-Tabor argued that Perich had been fired for religious reasons because she had violated the church’s commitment to internal conflict resolution rather than suing in court.

The decision, which was penned by Chief Justice John G. Roberts Jr., was based largely on the courts’ determination that Perich qualified as a “minister” and that “ministerial exception” therefore applied to her.

The court noted that Perich had been “commissioned as a minister” and was considered a “called teacher,” who had received a calling from God to fill the position. She taught both religion and secular subjects, and she regularly led students in prayer and devotional exercises.

However, in a concurring opinion, Justice Clarence Thomas went further, arguing that the court should not have tried to make its own determination of whether Perich was properly considered a minister.

Thomas contended that “the Religion Clauses require civil courts to apply the ministerial exception and to defer to a religious organization’s good-faith understanding of who qualifies as its minister.”

He noted that the broad span of religious structures and teachings present in the United States means that “the question whether an employee is a minister is itself religious in nature, and the answer will vary widely.”

Justice Samuel A. Alito Jr. wrote a separate concurring opinion. Joined by Justice Elena Kagan, he asserted that the term “minister” is not the central factor in the case.

“What matters,” he said, is that Perich “played an important role as an instrument of her church’s religious message and as a leader of its worship activities.”

He observed that the word “minister” is rarely used “by Catholics, Jews, Muslims, Hindus, or Buddhists.”

Rather than a debate about title or ordination, he suggested that the case was truly about the importance of safeguarding the autonomy of religious organizations to govern their internal affairs in accordance with the First Amendment.


The Catholic News Agency (CNA) has been, since 2004, one of the fastest growing Catholic news providers to the English speaking world. The Catholic News Agency takes much of its mission from its sister agency, ACI Prensa, which was founded in Lima, Peru, in 1980 by Fr. Adalbert Marie Mohm (†1986).

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