Additional Titles








Mandatory Vaccination is an Assault on Individual Liberty








Grants Pass





By Attorney Jonathan Emord
Author of "The Rise of Tyranny" and
"Global Censorship of Health Information"
January 30, 2012

On January 11, the Supreme Court ruled unanimously that the government may not second guess the decision of a church to hire and fire ministers, even if the church’s decision would otherwise be actionable under federal law (including under the Americans with Disabilities Act). Hosanna-Tabor Evangelical Lutheran Church v. EEOC is a magnificent (and essential) victory for the First Amendment Religion Clauses.

The establishment and free exercise clauses of the First Amendment were intended to prevent the state from supplanting religious decision-making with state orthodoxies. In Hosanna-Tabor Evangelical Lutheran Church, the Lutheran Church called Cheryl Perich to the position of commissioned minister. After serving the Church in a teaching capacity that involved secular and religious instruction, Perich developed narcolepsy and went on disability leave. Following that leave, she contacted the church and requested to return to her teaching duties. She was informed that the Lutheran school already contracted with a lay teacher to fill her position for the remainder of the school year. The congregation offered to pay a portion of Perich’s health insurance premiums on the condition that she resign as a called teacher. Perich refused to resign, arrived at the school to occupy her teaching post but was rebuffed in that attempt, and received word from the school that she would likely be fired. The congregation then voted to rescind Perich’s call and sent her a letter of termination. Perich filed suit with the EEOC under the Americans with Disabilities Act. The Obama Administration’s EEOC decided to break new ground and second guess the judgment of the Lutheran Church, hoping to force the church to abide by the discrimination laws.

In the district court, the EEOC case was dismissed. The court barred the suit on First Amendment grounds, reciting the “ministerial exception” to the discrimination laws, including the Americans with Disabilities Act. She appealed, and the Sixth Circuit reversed, holding the “ministerial exception” inapplicable. The Sixth Circuit variously ruled that there was no relevance to the fact that Perich was a commissioned minister. The Court found her religious duties to be the same as lay ministers hired by the church and found much of her work to be secular in nature.

If the United States Supreme Court upheld the Sixth Circuit decision, all manner of federal intrusion into the affairs of churches would follow, as the Obama Administration would have exploited new authority to undermine practices by churches to which it harbored objections. The federal government could then parse the duties performed by a church, segregating those deemed wholly religious from those deemed largely secular, permitting regulation of the latter. The discrimination laws could be enforced against churches, forcing the priesthood to be open to women, classes separated by gender, age, and marital status to be integrated, and marriage ceremonies to be open to all regardless of their sexual orientation.

The decision of who to hire and who to fire in a religious group and the reasons for selection of those who hold offices and positions within a church or on behalf of a church are ones inextricably intertwined with the free exercise of religion. Whatever theological or other justification may exist for choosing a minister, that justification is beyond the reach of the state if the American people are to retain freedom of choice in religious matters. As soon as federal officials may apply secular criteria to matters of decision within a church, then the freedom of religion is replaced with state orthodoxies and those orthodoxies in fact establish a state religion.

In a 9-0 decision, the Supreme Court reversed the Sixth Circuit and championed the original intent underlying the First Amendment establishment and free exercise clauses. In a well reasoned decision by Chief Justice John Roberts, the Court held that the establishment and free exercise clauses of the First Amendment “bar the government from interfering with the decision of a religious group to fire one of its ministers.”

“Familiar with life under the established Church of England,” Chief Justice Roberts wrote in a ringing endorsement of the original understanding, “the founding generation sought to foreclose the possibility of a national church. . . . .By forbidding the ‘establishment of religion’ and guaranteeing the ‘free exercise thereof,’ the Religion Clauses ensured that the new Federal Government—unlike the English Crown—would have no role in filling ecclesiastical offices. The Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.”

Matters of faith frequently involve choices that conflict with ever changing social mores and ethics. Some subscribe to views that the majority find repugnant. Others subscribe to views acceptable to the majority but opposed by a vocal minority. A government instituted among men to protect the rights of the governed must respect freedom of conscience in matters of religion equally and must leave organization and practices of religion beyond the reach of the state. In this instance, a church chose to terminate a minister. It did so for reasons objectionable to the minister and possibly also objectionable to many others who may think that the woman’s disability, narcolepsy, the reason for the termination and an appropriate basis for action to countermand the decision of the congregation. That, however, would impose a state veto over the decision of the congregation, constricting the congregation’s choices on church organization which, however repugnant to the Obama Administration, represent the views of those who subscribe to the religion and involve a practice of religion essential to the organization preferred by the church.


We are thus left with a choice that the First Amendment has already made for us, a choice which will arise in even more extreme circumstances in future. Can we consistent with the First Amendment and the freedom of religious practice it guarantees permit the state to deny an exclusively Korean church the right to exclude non-Koreans; a Jewish Synagogue the right to exclude Muslims; a racist church the right to exclude all blacks; a racist church the right to exclude all whites; a bigoted church the right to exclude all women? Expressed in less egregious forms, can we consistent with the First Amendment and the freedom of religious practice it guarantees permit the state to deny Catholics the right to limit the priesthood to male priests; deny Christians the right to excommunicate those who are homosexuals; deny Christians the right to refuse the sacrament of marriage to homosexuals or to those who are deemed unfit for marriage; deny Mormons the right to refuse confirmation to those who smoke cigarettes and drink alcohol? If the First Amendment is to stand as the barrier against government it was designed to provide, we cannot permit the state to deny any of those practices. We must deny the state power to intrude into each of these decisions, for while these acts of exclusion undoubtedly give offense to a majority, in some instances, and a minority in others, each act of exclusion occurs within the confines of an organization of those who practice religion in accordance with their own consciences, whose members necessarily commence their quest for salvation on a principle of discrimination. Indeed, no association based on religious or political allegiance avoids at least some act of discrimination, because each defines membership based on acceptance of a doctrine which governs perspective and ways of life and forbids deviation from that doctrine and those ways of life.

Every church requires that its members adhere to certain commandments, to avoidance of sin, and to repentance for sin. Those who do not follow those commandments are necessarily ineligible for church membership, in the discretion of the church hierarchy. So long as those who practice a religion do so without taking actions that deprive the equal rights of others to life, liberty, and property, there is no constitutional foundation for the state to interfere with religious decision-making and practices. In other words, there is no rightful power in the state to compel, for example, Catholics to ordain female priests; Protestants to permit Muslim instruction in religious classes; or Mormons to confirm those who smoke, drink, or have sexual relations out of wedlock. But that is not to say that the state is powerless to intervene when a person deprives life saving treatment to a child on the basis of a religious conviction; condones homicide as in furtherance of a religious teaching; or justifies acts that result in other crimes on the basis that the crimes are necessary in the furtherance of religion. That is because each of those acts offends the equal rights of others, depriving them of their rights to life, liberty, and property.

Certainly when it comes to selecting church offices and positions, religious liberty will be at an end the day the Court condones state action to second guess or replace that selection with one favored by government. As Justice Roberts explains in Hosanna-Tabor Evangelical Lutheran Church, “by imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.”

Subscribe to the NewsWithViews Daily News Alerts!

Enter Your E-Mail Address:

The Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church is a monument to liberty. It restores a formidable barrier against federal government encroachment into the organization, management, and operation of churches nationwide, regardless of denomination. From on high, James Madison is no doubt very pleased by the Court’s decision.

� 2012 Jonathan W. Emord - All Rights Reserved

Share This Article

Click Here For Mass E-mailing

Jonathan W. Emord is an attorney who practices constitutional and administrative law before the federal courts and agencies. Congressman Ron Paul calls Jonathan “a hero of the health freedom revolution” and says “all freedom-loving Americans are in [his] debt . . . for his courtroom [victories] on behalf of health freedom.” He has defeated the FDA in federal court a remarkable eight times, six on First Amendment grounds, and is the author of Amazon bestsellers The Rise of Tyranny, and Global Censorship of Health Information. He is also the American Justice columnist for U.S.A. Today Magazine. For more info visit











The Supreme Court’s decision in Hosanna-Tabor Evangelical Lutheran Church is a monument to liberty. It restores a formidable barrier against federal government encroachment into the organization, management, and operation of churches nationwide, regardless of denomination.