Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

"Ministerial Employees" and Sphere Sovereignty

Stanley Carlson-Thies


October 7, 2011
by Stanley Carlson-Thies

A version of this article originally appeared in the October 6 edition of the Institutional Religious Freedom Alliance eNewsletter
entitled “Religious Hiring and the US Supreme Court--Twice Over."

The US Supreme Court this week dealt with two employment cases that revolve around the rightful separation of church and state.  That principle is often misunderstood to mean that somehow religious principles can and should be banned from public affairs. Instead, it reflects a fundamental principle for the right ordering of society, which Jesus stated this way: “Give to Caesar what is Caesar’s, and to God what is God’s” (Matt.22:21).    That is, not everything belongs under Caesar’s control.

Or does it?  That was the basic issue in Wednesday’s oral argument in the blockbuster religious freedom case, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.  At one level, this is a case about whether a teacher in a faith-based school who teaches a non-religious subject but who has some religious duties should be considered a "ministerial" employee.  If so, then, according to the “ministerial exception” doctrine that the courts have devised from their reading of the First Amendment, the school is largely immune from the restrictions of employment laws in making its decisions about the teacher.

At a deeper level, the case is about the separation of church and state.  Is there a protected zone of church autonomy where the government must not intrude, notwithstanding its intention to promote justice?  If there is such a protected zone, does it cover faith-based schools—and not only churches?  And does it cover teachers who have religious duties as well as a secular subject to teach—and not only clergy and religion teachers?  Alas, the Obama administration proposed to the Court the extremist position that there is no protected space, no “categorical” exemption for any position in any kind of religious organization.  Yes, the Administration conceded, the church or parachurch organizations in some instances should be able to prevail over a fired employee, but the courts can always second-guess the decisions.

To the Administration, this is simple logic:  how can the government protect employees from unjust discrimination if it permits a zone of autonomy to religious organizations?  And yet, as several justices, both “liberal” and “conservative,” observed, the Administration’s position is “extraordinary” and “amazing.”  It would allow the government always to substitute its judgment for that of the religious organization about which decisions are truly religious, reflecting constitutionally protected religious convictions, and which decisions reflect mere bias and discrimination.  Caesar would have all the autonomy.

In the other case, Spencer v. World Vision, the Supreme Court decided to leave intact rulings from the lower courts in the Ninth Circuit.  Those courts vindicated World Vision’s decision to fire employees who said they no longer agreed with the religious convictions that inspire the organization.  World Vision said that its decision was protected by the “religious exemption” in Title VII of the 1964 Civil Rights Act.  That exemption allows religious organizations to consider religion (but not race, color, sex, or national origin) in hiring and firing.  The fired employees protested that World Vision was not a religious organization but rather a humanitarian one.  In effect, the courts instead have agreed with World Vision that it is a religious-humanitarian (rather than secular-humanitarian) organization.

This decision, too, rests on church-state separation.  Why did Congress write the “religious exemption” into the 1964 Civil Rights Act?  Sen. Sam Ervin (D-NC) put it this way:  the exemption “take[s] the political hands of Caesar off the institutions of God, where they have no place to be.”  The government shouldn’t be able to deny that World Vision is a religious organization, just because it provides material aid and not only evangelism, nor to decide that religion really is irrelevant in evaluating this employee or that.

So both cases are, at root, about the rightful authority of God and Caesar, church and state.  They are cases about “sphere sovereignty”:  how far government’s authority must go—and also, and crucially, where government’s authority must be limited, so that other institutions, other authorities, can use their own best judgments.

—Stanley Carlson-Thies is president and founder of the Institutional Religious Freedom Alliance. He served on the church-state task force of President Obama's Advisory Council on Faith-Based and Neighborhood Partnerships and on the founding staff of President George W. Bush's White House Office of Faith-Based and Community Initiatives.  He also serves as a Fellow of the Center for Public Justice.



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