Very important things happen at One First Street Northeast. That’s the address of the U.S. Supreme Court Building in Washington, D.C. Five people who worked there decided, in Bush v. Gore (2000), who would live at 1600 Pennsylvania Avenue, the White House, for the next four years. Seven people who worked there decided, in Roe v. Wade (1973), that a woman has the right to abort her child. For these reasons and more, the Supreme Court Building is the epicenter of American controversy. But earlier this month, One First Street Northeast was the site of a miracle.
All Nine Justices Supported Religious Liberty
In a unanimous (9-0) decision the high court ruled in favor of a Lutheran congregation that had rescinded the call of one of its parochial schoolteachers. The issue at stake, however, was far greater than the fate of that teacher or that congregation, as important as those considerations are. Aside from the question of whether the teacher deserved to keep her job, or whether the parochial school was appropriate in dismissing her, this case involved legal principles that impact every religious organization in the nation. Does a religious organization have the legal right to determine whom to employ and for how long?
Lower court rulings had limited the authority of religious groups, claiming that anti-discrimination laws grant employees protection against termination. In Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission et al. (2012), the U.S. Supreme Court unanimously disagreed, holding that religious organizations have broad discretion to determine their own employment decisions.
Writing for the Court, Chief Justice John Roberts concluded (slip opinion, p. 22):
When a minister [or as this Lutheran congregation would say, a “called teacher”] who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.
A concurring opinion by Justice Clarence Thomas stated that “the Religion Clauses [of the First Amendment] 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” in the legal sense (slip opinion, Thomas concurring, p. 1). He emphasized that not all religious groups use the word “minister” in the same manner, but that anyone directly involved in promoting the organization’s religious mission qualifies as a “minister” for legal purposes. For such employees, the court granted full discretion to the church in determining employment decisions.
Another concurring opinion, representing an astonishing cooperation between conservative justice Samuel Alito and liberal justice Elena Kagan, gave churches full discretion in defining how their theology and their employment practices should relate (slip opinion, Alito and Kagan concurring, p. 2):
The ‘ministerial’ exception should . . . apply to any ‘employee’ who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith. If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.
It comes as a great surprise that Justices Kagan and Alito, who have such discordant views on so many issues, would come to agreement in this case to extend broad constitutional protections to religious organizations. It comes as an even greater surprise that all nine justices would unite for a unanimous ruling. Miraculous?
How to Recognize a Miracle
A friend recently lent me his copy of Henry T. Blackaby and Claude V. King’s Experiencing God: How to Live the Full Adventure of Knowing and Doing the Will of God (1998). The authors caution against the prevalent practice among Christians of making plans and then praying for God to bless those plans. Instead, they recommend observing where God is at work, and then prayerfully joining God in that work. Of course, to follow their advice one must be able to distinguish between things that God is really doing and things that a person may mistakenly think God is doing in the world. In other words, a person must be able to recognize a miracle.
How can you know a miracle when you see one? Blackaby and King, I think correctly, state that one can recognize a miracle when observing something that only God can accomplish. For example, if a person approaches you and says, “I know you’re a Christian. I’ve heard that Jesus loves and forgives people. I’d like to know more about that. Will you help me?,” then you know this is God at work. The Scriptures teach that only God can draw a person toward Himself; people cannot do this of their own will, since they are spiritually dead until God makes them alive. God brought the inquiring person to you, so stop everything and do God’s work in professing Christ.
A Miracle in the Courtroom
A strong case can be made that Hosanna-Tabor v. EEOC was a miraculous decision. The past century witnessed a steady departure in the Supreme Court from the natural law foundation upon which this nation was established. The Court has instead embraced “sociological jurisprudence” (ruling according to the justices’ perceptions of what society needs rather than according to the U.S. Constitution and the laws enacted in accordance with it).
The Court has progressively confined religion to an ever-shrinking private sphere, while upholding personal preference as the highest legal standard. The result has been not only the legalization of abortion (Roe v. Wade, 1973), but also the invalidation of a man’s right to protect his wife, his daughter, and the children whom they may carry in their wombs (Planned Parenthood v. Casey, 1992). That latter case directly fed the frenzy that declared sodomy legal nationwide when the Court injected Casey’s “mystery dictum” into Lawrence v. Texas (2003) to strike down the state’s prohibition of homosexual conduct: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
It used to be lex rex, the law is king. Now personal choice is king and anyone saying differently is a laughable court jester. Unfortunately, the Rehnquist court of the Reagan-Bush-Clinton era was too divided to reverse the trend toward enshrining human vice under the guise of personal liberty. In the present century, the Roberts court barely managed, in a 5-4 decision, to regain a little lost territory in Gonzales v. Carhart (2007), which upheld a congressional ban on partial-birth abortion.
The prospect for restoring the nation’s judicial system to the natural law foundation of our founding fathers appears tenuous at best—and the future might be far worse. In Christian Legal Society v. Martinez (2010), a divided court ruled that the Christian Legal Society could not continue as a recognized campus organization at a public university unless it permitted persons who rejected its religious creed to nonetheless be eligible as voting members and officers. You don’t believe me? Read it for yourself here.
When Elena Kagan joined the high court later that year, religious conservatives understandably became nervous. As dean at Harvard Law School, she had blocked military recruiters from campus because, although the military permitted homosexuals to serve in the armed forces, it did not permit them to identify their sexual lifestyle openly. The spirit of the times is not difficult to discern. So called “hate-speech” legislation has been under consideration in several state legislatures, threatening to silence preachers of biblical morality. The Obama administration has all but obliterated the conscience protections for pro-life healthcare providers that George W. Bush had defended—protections mandated by Congress even if disregarded by the current President and his cabinet. The same-sex “marriage” movement has led to civil fines imposed against florists and photographers who refuse to serve the new marketplace of sodomitical unions.
From a human vantage, examining Hosanna-Tabor v. EEOC in light of history and sociology, one would expect several justices, perhaps even a majority of them, to favor a former employee who filed an anti-discrimination lawsuit against a conservative church. This is, mind you, a church that objected to the employee’s lawsuit on the basis that 1 Corinthians 6:1-8 forbids one Christian from suing another. Amazingly, not one of the nine justices supported the employee and all of them favored the church’s rights to establish, interpret, and apply its own policies for hiring a staff to fulfill its religious mission.
God’s Blessings Are New Every Morning
God providentially guides history. Even the tragedy of Babylonian captivity ultimately played out for a blessing to the Jews and, through the Messiah born among them, to all nations. God’s providential blessing also is upon the Supreme Court, either permitting unfavorable decisions for reasons that we may not yet understand, or favorable decisions for which we readily rejoice. Joining God where He is at work, I applaud the Court for its recent ruling in Hosanna-Tabor v. EEOC. This ruling means that churches nationwide can continue to choose their pastors and support staff according to their religious convictions, without concern about whether any personnel happen to fit a “protected class” under anti-discrimination laws—such as sex, sexual orientation, or marital status.
This does not mean I lack compassion for the former teacher who sued for the right to have her job back or for any other person who, like that employee, suffers a medical disability. It simply is not my place to judge whether she or her congregation was in the moral right, since I am not privy to all the facts presented at trial.
In celebrating the Supreme Court’s ruling, I only wish to call attention to the fact that had the Court decided the other way, it would have had a devastating impact on religious liberty in America. Remarkably, the court chose instead to reverse the trend it had established in Christian Legal Society and re-assert the age-old right of religious organizations to pursue their religious purposes without encroachments from the state. For this to happen in twenty-first century America is a miracle for which I thank God.
Dr. Ryan C. MacPherson is the founding president of The Hausvater Project. He lives with his wife Marie and their homeschool children in Casper, Wyoming, where he serves as Academic Dean and Professor of History and Philosophy at Luther Classical College. He previously taught American history, history of science, and bioethics at Bethany Lutheran College, 2003–2023. For more information, visit www.ryancmacpherson.com.