A Supreme Court Ruling Unlocks Government Aid for Religious Groups
DESPITE bipartisan sup- port 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 employ-ment-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 Employ-
ment Opportunity Commis-
sion—was triggered when an
instructor, who was on disabil-
ity leave for narcolepsy, sought
to resume teaching. Her school,
which is affiliated with the Lu-
theran Church’s Missouri Syn-
od, felt she was not ready to re-
turn. Citing the Americans With
Disabilities Act, she threatened
to sue for reinstatement. The
school then fired her.
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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 Car-
ta in 1215, the court concluded
unanimously that “requiring a
church to accept or retain an
unwanted minister, or punish-
ing a church for failing to do so,
intrudes upon more than a mere
employment decision.”
Rather, “by imposing an un-
wanted minister, the state in-
fringes the free-exercise clause
[of the Constitution’s Bill of
Rights], which protects a reli-
gious 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 desig-
nation is not limited to people
who lead religious congrega-
tions. 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 collec-
tive 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 work-
er’s title or training but rather
the person’s duties. If they in-
volve—even to a small degree—
expressing the organization’s
faith, the “ministerial excep-
tion” 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 direct-
The ruling allows
groups that accept
federal aid to put
faith back into faith-based programs.
ly 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.
Leslie Lenkowsky is a professor at Indiana University and a
regular contributor to these pages. His e-mail address is llen-kows@iupui.edu. He and Suzanne Garment, a visiting fellow
at Indiana University, are writing a book on philanthropy and
public policy.
‘Touchy Topics’ Like the Role of Parents Can’t Find
Champions Among Education-Minded Donors
activities, and to advocate for a
child in our byzantine education
bureaucracies. Yes, the schools
deserve ample blame for these
kids’ weak educational outcomes. But the adults in their
home lives aren’t getting the
education job done, either.
Interest groups opposed to
radical changes in the schools
are pleased to finger parents as
the root of America’s academic
mediocrity. This lets the education system off the hook. At the
same time, reformers boast of
“miracles” in schools that serve
disadvantaged children in part
because they are loath to deal
with parents’ destructive choices. The result is a tug-of-war
with no referee, no “honest broker” conducting research and
devising policies and programs
to strengthen families as well
Continued from Page 39
as schools—and thereby boost
kids’ educational outcomes and
life prospects.
Touchy topics like these are
where private philanthropy
is most needed, precisely because politicians and government officials don’t dare touch
them. What philanthropy can
do uniquely and best is to focus where government fears to
tread.
But that’s not what founda-
tions do today. Far from boldly
dedicating their scarce resourc-
es to innovative thinking on
problems that are off-limits to
government, too many of them
are opting to top up the bud-
gets of government programs
now framed as “public-private
partnerships.” They fell all over
each other to provide matching
dollars for Secretary Duncan’s
innovation program, for exam-
ple, and adore the work of the
White House Office of Social
Innovation and Civic Participa-
tion—and not only in the edu-
cation realm. They may or may
not be wasting their money on
such activities, but private mon-
ey spent at government’s behest
is money unavailable to support
needed work on issues that gov-
ernment cannot tackle.
Chester E. Finn Jr. is president of the Thomas B. Fordham
Institute, where Christopher A.
Tessone is director of finance
and operations.
