A Supreme Court Ruling Unlocks Government Aid for Religious Groups

Despite bipartisan support from Presidents Clinton, George W. Bush, and Obama, efforts to provide more federal aid to religious charities have faced a difficult time. Among the chief roadblocks have been objections raised by civil libertarians and others about the constitutionality of using government money to pay for programs conducted by people hired on the basis of their religious beliefs.

But last month, the Supreme Court may have cleared away this obstacle. In a dispute involving the firing of a teacher, it ruled—for the first time—that a nearly 50-year-old exemption of religious groups from employment-discrimination laws is, in fact, constitutional.

While government money was not at issue in this case, the decision nonetheless affirmed the principle that religious organizations may have special protections from regulations that other kinds of charities, including those that receive government support, do not.

The case—Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission—was triggered when an instructor, who was on disability leave for narcolepsy, sought to resume teaching. Her school, which is affiliated with the Lutheran Church’s Missouri Synod, felt she was not ready to return. Citing the Americans With Disabilities Act, she threatened to sue for reinstatement. The school then fired her.

What turned this matter from an employment dispute into one involving religious liberties was the teacher’s status as a “minister” at her school. The Missouri Synod’s policies permit teachers, after a period of study, to be given a special “commission,” which enables them to perform religious duties in addition to secular ones.

The teacher in this case had obtained such a commission and while she mostly taught nonreligious subjects, she also led a religion class and student prayers.

To the school’s board, her threat to take legal action was inconsistent with Lutheran principles calling for the peaceful resolution of such disputes and thus a breach of the teacher’s vows as a minister.

That action, it said, was grounds for dismissing her due to religious reasons—not because of her disability. Since the passage of Title VII of the 1964 Civil Rights Act, discrimination in hiring (or firing) based on a person’s religious beliefs has been illegal.

However, that law also includes a “ministerial exception,” which allows religious groups to use religious criteria in choosing or dismissing members of the clergy. The Hosanna-Tabor school board cited this provision in defending its actions.

The Supreme Court, which had never before ruled on the “ministerial exception,” agreed with the board.

Citing precedents going back as far as the Magna Carta in 1215, the court concluded unanimously that “requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision.”

Rather, “by imposing an unwanted minister, the state infringes the free-exercise clause [of the Constitution’s Bill of Rights], which protects a religious group’s right to shape its own faith and mission through its appointments.”

Even so, the key question was whether the fired teacher was really a “minister.”

The Supreme Court held that the legal meaning of this designation is not limited to people who lead religious congregations. It can also apply to other employees of faith-based groups if those workers perform duties for which religious knowledge and training are required.

In the court’s view, the fact that the teacher taught mostly secular classes was less relevant than that she had studied to be—and was regarded by the Synod as—a member of the clergy.

In a concurring opinion, Justices Samuel Alito Jr. and Elena Kagan went even further.

“The Constitution,” they wrote, “leaves it to the collective conscience of each religious group to determine for itself who is qualified to serve as a teacher or messenger of its faith.”

What matters is not a worker’s title or training but rather the person’s duties. If they involve—even to a small degree—expressing the organization’s faith, the “ministerial exception” applies and the employer has the right to use religion as a basis for hiring or firing.

To be sure, the Hosanna-Tabor decision does not directly answer the question of how much freedom religious groups have to make personnel decisions if they want to accept federal aid.

Since the Constitution prohibits government from promoting particular religious views, some would argue that employees of government-supported religious charities should be chosen solely on the basis of their qualifications to provide secular services. Consequently, the “ministerial exception” does not apply.

However, others maintain that faith-based charities, as long as they do not try to require those being helped to accept their religious beliefs, can legally incorporate aspects of their worship practices, such as prayer groups or pastoral counseling, into their activities even if they accept government money.

And if faith-based charities may conduct such activities, permitting them to use religion in hiring could be not just important, but essential.

The Supreme Court’s ruling in the Hosanna-Tabor case gives support to this argument. Although faith-based organizations still have to refrain from using government funds for religious purposes, the decision’s logic suggests they may no longer be forbidden from hiring only their co-religionists with public money.

On this reasoning, a government agency can decide not to offer grants or contracts to a religious charity, but once it has done so, it cannot tell the organization whom to hire any more than it, or anyone else, can accuse the group of discrimination for using religion as a basis for employment if it chooses to do so.

For many charities rooted in religious traditions, of course, the Hosanna-Tabor decision may have little consequence. They long ago stopped using religion in employment decisions (or, for that matter, in their programs).

But for those groups that still regard their beliefs and practices as an important part of the services they provide to the needy, the Supreme Court’s ruling now allows them to put faith back into their faith-based programs.