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Speaking of Religious Freedom

by Kim Colby - Senior Counsel, The Center for Law & Religious Freedom

Senior Counsel Kim Colby2011 promises to be a propitious year for religious liberty. The Supreme Court has announced important decisions limiting the ability of taxpayers to bring Establishment Clause challenges and protecting the expression of highly divisive religious and political viewpoints. The Court recently agreed to address the vital right of religious schools to choose their teachers without governmental interference under the “ministerial exception.”

Supreme Court Decides Key Establishment Clause Standing Case

On April 4, the United States Supreme Court delivered its ruling significantly limiting Establishment Clause taxpayer standing in Arizona Christian School Tuition Organization v. Winn, 131 S. Ct. 1436 (April 4, 2011). The Court held that Arizona taxpayers lacked standing to challenge a state legislative program under which state taxpayers were allowed to claim tax credits (up to $500 for individual filers and $1000 for joint filers) for their contributions to school tuition organizations (STOs).The STOs in turn awarded tuition scholarships to private schools, including religious schools. In litigation that has lasted well over a decade, state taxpayers challenged the tax credits as a violation of the state Establishment Clause, an argument the Arizona Supreme Court rejected, and the federal Establishment Clause, an argument the Ninth Circuit accepted but the Supreme Court rejected.

In Flast v. Cohen, 392 U.S. 83 (1968), the Warren Court created an exception, applicable only to Establishment Clause challenges, to the rock-hard rule that taxpayers lack standing, when acting solely as taxpayers, to object to the constitutionality of government expenditures. The Flast carve-out encouraged taxpayers to mount Establishment Clause challenges to federal and state expenditures that could not otherwise have been tried against other constitutional provisions. Since 1968, the Court chipped away at Flast inValley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464 (1982) (no taxpayer standing for Establishment Clause challenge to agency’s transfer of federal property pursuant to the Property Clause), and Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587 (2007) (plurality opinion) (no taxpayer standing for Establishment Clause challenge to Executive Branch officials’ dis- cretionary expenditures).

Writing for a 5-4 majority in Winn, Justice Kennedy continued chipping away, although he did not abolish the Flast exception, despite urging from concurring Justices Scalia and Thomas. Justice Kennedy explained that tax credits simply are not equivalent to legislative appropriations and, therefore, do not trigger the Flast exception for expenditures made pursuant to the legislative taxing and spending power. He rebuffed the dissent’s “contrary position ... that income should be treated as if it were government property even if it has not come into the tax collector’s hands.” 131 S. Ct. at 1448. Relying on the foundational First Amendment distinction between governmental and private action, choices, and speech, the majority noted that “[p]rivate citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs,” and, therefore, “the tax credit system is implemented by private action and with no state intervention.” Id.

In her first opinion in a religious liberty case, Justice Kagan fired a broadside in dissent, joined by Justices Ginsburg, Breyer, and Sotomayor. The dissenters would find standing because, in their view, both actual appropriations and tax credits give equal support to the religious schools and are constitutionally equivalent for purposes of the Establishment Clause. Id. at 1450 (Kagan, J., dissenting).

The Christian Legal Society filed an amici brief (2010 WL 3535061) in which it addressed the merits of the Establishment Clause challenge and strongly advocated a “private choice” analysis, essen- tially the same as the “private choice” analysis upon which the majority premised its procedural ruling against standing. Written by Professors Tom Berg and Douglas Laycock, the CLS brief was joined by the Union of Orthodox Jewish Congregations of America, the United States Conference of Catholic Bishops, the Council for Christian Colleges and Universities, the Center for Arizona Policy, and the Association for Biblical Higher Education.

Supreme Court Decides Distressing Speech Case

On March 2, the Court held that freedom of speech protected the Westboro Baptist Church’s picketing of a funeral service for a soldier killed in the line of duty. Snyder v. Phelps, 131 S. Ct. 1207 (2011).The church frequently engages in scurrilous speech to express its religious belief that a soldier’s death signifies God’s judgment on America for tolerating various sinful conduct, including homosexual behavior, in the military and the country. A federal jury had awarded the soldier’s father a $10.9 million verdict against the church for intentional infliction of emotional distress, invasion of privacy by intrusion upon seclusion, and civil conspiracy.

In an 8-1 opinion for the Court, Chief Justice Roberts found that the church’s speech addressed a matter of public concern in a public place and, therefore, enjoyed First Amendment protection that “cannot be overcome by a jury finding that the picketing was outrageous.” Id. at 1219. As the Court noted, however, a law that imposed content-neutral restrictions on funeral picketing might pass constitutional muster.

Justice Alito filed a lone dissent. In his view, the “commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case.” Id. at 1222 (Alito, J., dissenting).

Supreme Court to Decide Whether Religious Schools’ Decisions Regarding Teachers are Protected by First Amendment

On March 28, the Supreme Court agreed to hear a case likely to delineate the scope of the First Amendment’s protection of religious schools’ employment decisions regarding teachers who lead their classes. Specifically, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, et al., No. 10-553, the Court will explicitly address for the first time the “ministerial exception.”

For decades, the courts of appeals have recognized that the First Amendment bars most employment-related lawsuits brought against religious

organizations by employees who perform religious functions.The courts agree that churches and synagogues enjoy a broad “ministerial exception” that protects their decisions to hire, promote, or fire their pastors, priests, and rabbis against application of laws banning discrimination on the basis not only of religion, but also of race, sex, age, and other bases.This protection is not based on the idea that discrimination laws are unimportant, but on the belief that the proper bounds between the church and the state require the government to defer to the church’s own decisions regarding which per- sons will transmit its religious beliefs and lead its religious mission.

In Hosanna-Tabor, a church and its school ter- minated a teacher for insubordination and failure to follow alternative dispute resolution processes as outlined by the church. After missing over half the schoolyear due to illness, an elementary school teacher insisted on returning to the classroom despite the school’s determination that her return would be disruptive to the students’ academic progress.

The teacher taught the full fourth grade curriculum, which included daily religion classes, was a commissioned minister, and regularly led classroom prayer and worship. The district court ruled in favor of the school and church. 582 F. Supp.2d 881 (E.D. Mich. 2008). But the Sixth Circuit Court of Appeals reversed based on its belief that the teacher’s “primary duties” were secular rather than religious because the teacher taught “religious material” only 45 minutes a day while teaching “secular material” the remaining 6 hours. 597 F.3d 769 (6th Cir. 2010). For that reason, the court of appeals deprived the church and school of their ability to control who transmitted their religious values to their students.

In so ruling, the Sixth Circuit employed the “primary duties” test, which has been adopted by the Third, Fourth, Sixth, and D.C. Circuits.The test limits the ministerial exception to employees whose primary functions are to teach, spread the faith, govern the church, supervise a religious order, or participate in religious worship or ritual.

Four circuits, however, have rejected the “primary duties” test, deeming it too entangling of government with religious organizations.According to the Second, Fifth, Seventh, and Ninth Circuits, a court should consider the totality of an employee’s job duties, not just those considered by the court to be “primary duties.” In evaluating whether the employee has some substantial duties that are considered religious, a court should defer to the church’s own view of the nature of the employee’s religious duties. Moreover, a court should consider the nature of the underlying employment dispute and avoid those disputes that are likely to entangle the secular courts in religious questions.

In Hosanna-Tabor, the church and school clearly view their teachers as having substantial duties that are religious.The Sixth Circuit failed to give proper deference to the church and school’s standpoint regarding the religious duties of teachers. Likewise, the court failed to exercise the proper deference to the joint decision of church leaders, school administrators, and a religious congregation that a particular teacher should not return to the classroom because they believed that her return violated the church’s process for resolving disputes and would be detrimental to student learning.1

CLS plans to file an amici brief in support of a generous application of the ministerial exception. Two leading religious liberty authorities, Professors Rick Garnett and Tom Berg, have agreed to craft a brief that will urge the Court to safeguard religious schools’ ability to determine who transmits the schools’ religious beliefs to the next generation.


Kim Colby has worked for the Center for Law and Religious Freedom since graduating from Harvard Law School in 1981. She has represented religious groups in numerous appellate cases, including two cases heard by the United States Supreme Court, as well as on dozens of amicus briefs in federal and state courts. She was involved in congressional passage of the Equal Access Act in 1984.

1 While adopting no specific test, the remaining four circuits, the First, Eighth,Tenth, and Eleventh Circuits, have applied the ministerial exception, albeit on an ad hoc basis.