U.S. Supreme Court Upholds Ministerial Exception to Employment Laws

On January 11, 2012 the Court ruled unanimously in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that the anti-retaliation provision of the Americans with Disabilities Act (ADA) did not apply to a religious school that fired a teacher for threatening to file an ADA claim when she was not given her job back after returning from medical leave. The religious employer had argued that it was against its religious beliefs for ministers, which included teachers, to sue the church and that such disputes should be handled within the church structure.

Although Cheryl Perich was the perfect "poster child" to challenge the exception because of the highly sympathetic facts involved, the Court declined to throw out the ministerial exception and issue a ruling which would have allowed the state to have entry into the internal employment practices of the church. The Court protected the right of a religious organization to select its clergy without government interference and avoided placing religious practices under the scrutiny of government. The Court essentially ruled that most non-criminal matters within religious organizations are appealable only to a Higher Authority.

Redefinition of "Religious Liberty" in 2012 Election Cycle

Following the passage of Obamacare, religious groups, led in many ways by the United States Conference of Catholic Bishops, argued that the contraception mandate violated religious freedom. They argued against the "Godless secularism" that arises in contrast to the "common good." Their line of argument is that religious freedom is only valid if it recognizes this liberty as a "gift of God." Proponents thus define freedom of religion primarily in the context that the right to speak from a faith-formed conscience is protected.

While these proponents of a new definition of "religious liberty" are partway correct in that the government should have no business interfering in the internal life of the soul, conscience, or church, America's founders stood in strong contrast to the European where the throne and altar had been unified for centuries and where the Church had heavy influence over government policies, and the government in turn used its power to limit competing churches and beliefs. In Europe, all legitimate beliefs needed consistent with "natural" or "universal" law. Natural law theory holds that morality is a function of human nature and that reason can discover valid moral principles by looking at the nature of humanity in society.

According to early church fathers such as Thomas Aquinas, natural laws promoted five important principles: to live, to learn, to reproduce, to worship God, and to live in an ordered society.

The movement toward a view of religious liberty limited by "natural law" is a predictor of a time when churches could press for general laws for the "common good" based on limited definitions of what is natural. Those at variance the "natural order of things" could be marginalized.  On the other hand, churches and people of faith have a legitimate interest in preserving their beliefs and institutions against the incursions of secularism.

This continual shift between natural law and secularism will form the battlefields of the culture wars in 2013 and beyond.  We will continue to carefully monitor the narrow instance and work preserve the wall of separation of church and state which may be the best bulwark against unjust incursions from either side.

Voters Approve Same-Sex Marriage in Four States

In the November 6 election, voters in Maine, Maryland, and Washington approved measures legalizing same-sex marriage, voters in Minnesota rejected a proposed constitutional ban on same-sex marriage. Only North Carolina voted to define marriage as solely existing between one man and one woman.

Soon after the election, the United States Supreme Court agreed to hear an appeal of the 9th Circuit Court of Appeals' verdict overturning California's Proposition 8 which amended the state constitution to ban same-sex marriage, and the Court also agreed to hear a challenge to the constitutionality of the federal Defense of Marriage Act.

The Court is likely to hear arguments in March and issue a decision in June 2013.  This may be the biggest story of the year.

Release of Iranian Pastor Youcef Nadarkhani

In September 2012, after spending 1,062 days in prison amid international outcry, Iranian Pastor Youcef Nadarkhani was acquitted of the crime of apostasy, which carried the death penalty and was found  guilty only of evangelism and given credit for time served. At the Christian Solidarity Worldwide national conference in London in November, Nadarkhani, now 35, expressed his gratitude to his supporters saying that he is alive today because of "what your prayers did for me." After the conference and several speaking appointments in England, Nadarkhani returned to his home city in Iran.

Nadarkhani's story has increased awareness of persecution of Christians throughout the Middle East.

Supreme Court Upholds Constitutionality of Obamacare

On June 28, 2012 the U.S. Supreme Court upheld the constitutionality of most of the Patient Protection and Affordable Care Act (PPACA, aka "Obamacare"). Although the PPACA closely tracked a Heritage Foundation proposal from the 1980s in that it required the purchase of health insurance to avoid situations where the taxpayers foot the bill for the uninsured, conservatives and religious groups opposed the mandate which required coverage of abortion-inducing drugs, contraception, and sterilization. The Obama administration crafted a narrow exemption to the law which would exempt houses of worship, but other employers, including religious social service providers, schools, and business owners, could be required to pay for these services despite their religious or moral objections.

Litigation continues on several fronts, including a lawsuit brought by Hobby Lobby, a large private employer owned by a Christian family that opposes portions of the health care bill which they oppose on religious grounds.

Federal Court Rules Oklahoma Amendment Barring Islamic Law was Unnecessary and Discriminatory

In 2010, Oklahoma voters by a margin of 70-30 approved a state constitutional amendment that would bar "Islamic law" in the state despite the lack of any movement to impose sharia law in Oklahoma. In its January 2012 decision, the 10th Circuit Court of Appeals applied the Larson v. Valente, 456 U.S. 228, 255 (1982) test which  states that if a law discriminates between religions, it can survive only if it is "closely fitted to the furtherance of any compelling interest asserted."

In the absence of any clear threat that Sharia law would be imposed, the 10th Circuit ruled that the amendment was unconstitutional. The 10th Circuit decision stated that the harm that the amendment would remedy was "speculative at best and cannot support a compelling interest." Further, although states can use ballot initiatives to legislate in certain areas of the law, "these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution."

California Legislature Bans Gay Conversion Therapy

California Governor Jerry Brown signed SB 1172 into law which bans minors from receiving counseling to change their sexual orientation. Pacific Justice Institute filed for an injunction on behalf of three plaintiffs, and in December 2012 federal Judge William Shubb granted the injunction stating that "SB 1172 is subject to strict scrutiny and is unlikely to satisfied this standard."
The next day, Judge Kimberly Mueller refused to block the law in a separate case in another regional jurisdiction involving plaintiffs represented by Liberty Counsel ruled that the legislature had grounds to enact the law because multiple health groups had discredited the therapy.

To summarize, Judge Shubb viewed it as a free speech issue while Judge Mueller viewed the therapy as conduct. The matter is being appealed to the 9th Circuit Court of Appeals.  The law is scheduled to go into effect on January 1, and while it allows an exception for religious counselors in churches it does not apply if they hold themselves out as licensed counselors.

The impact of legislation of this type could be wide-reaching in that it could provide government an opportunity to limit speech within religion-based institutions or broadly limit non-coercive religious conduct that it deems incorrect.

Pastors Imprisoned for Violating Court Order Involving Trademark Dispute

Tennessee pastor Walter McGill and his associate Lucan Chartier were imprisoned in July for violating a court order that they stop using the name "Creation 7th Day Adventist." McGill believes that God gave him a dream to use the name, but the Seventh-day Adventist Church sued claiming that McGill's use violated their trademark.

While McGill and Chartier may hold some unorthodox views as far as Adventists are concerned, their pursuit of liberty of conscience is not unfamiliar to Adventists. The Adventist church has a longstanding history of legal advocacy on behalf of church members who face adverse employment actions for refusing to work between sunset on Friday and sunset on Saturday. Accommodating these Adventist workers is not easy, and it often requires that others work undesirable weekend hours, or that management go through significant inconvenience.

McGill, who had been out of the country during the initial trial and probably lost the case as a result of his absence, remained on a hunger strike throughout his incarceration and has no plans to disobey what he believes is God's command and change his church's name.It is hoped that in this case, the Adventist church can reach an agreement that accommodates McGill's rights of conscience and makes it clear that his organization is not affiliated with the church.

Short of further incarceration, it is unclear what additional steps may be taken to get McGill to stop using the name Adventist.

It is a very rare case where a person refuses to change a trademark to comply with a court ruling, but in matters of faith, history shows that people will follow what they believe to be God's orders that conflict with human laws.

So far, this is perhaps the only modern case where a defendant in a trademark violation case has been imprisoned for refusing to comply with a court order for religious reasons. We will continue to follow this important story and hope for its prompt and reasonable resolution.

California Legislature Passes Workplace Religious Freedom Act

California Governor Jerry Brown signed workplace religious accommodation legislation this weekend. AB 1964 amends Section 12940 of the Government Code, which prevents employers from discrimination based on a person's religious belief or observance. The existing code read, "Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath of other religious holy days or days, and reasonable time necessary for travel prior and subsequent to a religious observance." AB 1964 adds: "and the practice of wearing religious clothing or a religious hairstyle." Additionally AB 1964 amends the code to include the wearing of certain apparel or jewelry, carrying an object of faith, such as a Sikh kirban, and styling of hair and beards.


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