Yesterday's Supreme Court 9-0 smack-down of B.O.'s power grab over Churches is being hailed as truly historic. And it is. . .as these things go in the world of jurisprudence and among us Legal Fan Boys.
The case itself is fairly straightforward, nothing bizarre or particularly historic. What is bizarre and truly historic is the argument brought by B.O.'s Justice Department. From the NYT: "The administration had told the justices that their analysis of Ms. Perich’s case should be essentially the same whether she had been employed by a church, a labor union, a social club or any other group with free-association rights under the First Amendment." In other words, this administration hoped to convince the Justices that the Free Association Clause of the 1st Amendment trumps the Establishment and Free Exercise Clause. Given the social engineering ideology and impulses of B.O.'s nanny state mindset, I think we can see where this is going: governmental control of religious institutions. The NYT notes that the administration's argument came under "withering criticism" from the Justices, including B.O.'s two liberal appointees.
The gist of the unanimous opinion: “The Establishment Clause prevents the government from appointing ministers. . .and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”
So, why is this decision considered a landmark?
1). This is the first time the SC has recognized the "ministerial exception" to the federal law prohibiting discrimination based on X, Y, Z, ad.nau. For years, lower courts have dismissed employment discrimination lawsuits brought against religious organizations by their "ministers." These courts concluded that the Establishment and Free Exercise Clauses of the 1st Amendment prohibit the gov't from meddling in the hiring/firing of ministers. Imagine the chaos if priests who have been laicized by the Church could sue under federal law for discrimination. Imagine the kind of ministers that judicial nannies would impose on churches!
2). In the unanimous decision, Chief Justice John Roberts wrote, “We cannot accept the remarkable view that the religion clauses have nothing to say about a religious organization’s freedom to select its own ministers.” Why did the Chief note that this view of employment discrimination is remarkable? Because B.O.'s Equal Employment Opportunity Commission and his Justice Department argued that religious institutions do not have the constitutional right to decide who their ministers will be. You read that correctly. Remarkable, indeed.
3). So remarkable, in fact, is B.O.'s view of the Establishment & Free Exercise Clauses that a stalwart conservative (Alito) and a stalwart liberal and B.O. appointee (Kagan) issued a concurring opinion denouncing B.O.'s view! And there's more. . .this historic concurring opinion goes on to opine that all employees of religious institutions (not just the clergy) should be exempted from gov't meddling.
4). When this case first reached the Court, it was widely noted that a decision against the church involved in the case could force the Catholic Church to defend her all-male priesthood against discrimination lawsuits. Some in the NCR/LCWR crowd were chomping at the bit for the Court to open that can of worms. Deo gratis. . .they didn't. In fact, they pretty much welded the can shut and tossed it into the abyss.
Despite this victory for the 1st Amendment and religious institutions in the U.S., I am confident that the nannies will continue their tireless efforts to monitor and control our relationships with God. And I'm confident that there will be those in the Church who cheer on these control freaks. They just can't help themselves.
The Court's decision can be found here.
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