Public policy update: 5 SCOTUS cases you should know about
August 2020
The Courts & the Church: What Happened?
As the summer begins to wind down and we start to turn our attention to the new beginnings that each fall brings to our congregations and schools, we would be remiss if we failed to take note of the very significant decisions that were recently handed down by the U.S. Supreme Court. Five of them are especially impactful to Christians in general and the Church in particular.
Of these, I’d like to highlight one in particular. But first, allow me to briefly summarize the other four.
1. Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania
Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania was a continuation of a long, seven-year legal battle over whether or not the government, either federal or state, can force religious people and institutions to violate their conscience when there is no compelling state interest involved.
More specifically, the justices were asked to decide whether the State of Pennsylvania could force an order of Catholic nuns to be complicit in providing abortion-causing drugs to their employees. To this, the Court answered, “No, government, you may not!” This is a clear win for religious freedom.
2. June Medical Services, LLC v. Russo
June Medical Services, LLC v. Russo resulted in the Court declaring a Louisiana law unconstitutional which would have required surgical abortion providers to have the same hospital admitting privileges as every other out-patient surgical center in the state.
Unfortunately, this is a decision which continues to reveal that the abortion industry has been accorded a special status by the Courts which renders it impervious to the normal oversight of government and the Constitution.
3. Espinoza v. Montana Department of Revenue
Espinoza v. Montana Department of Revenue dealt with this question: “Can the government, through state constitutional provisions called Blaine Amendments, continue to treat the educational choices of religious parents less favorably than the educational choices of secular parents by denying funding to those religious educational choices?”
In a landmark decision, the justices again said, “No, government, you may not! What you do for parents making secular educational decisions you must also do for parents making religious educational decisions.”
This ruling gives much greater clarity to the meaning of “government neutrality” in matters of religion. In it. the Court is saying that when the government denies funding to the educational choices of religious parents, it is not showing neutrality toward religion as has been claimed, but rather a hostility that is expressly forbidden by the U.S. Constitution. This was a very favorable and much anticipated ruling which will enhance our religious liberty rights and open up many more school choice options for parents.
Now, because justice is not self-enforcing, the hard political work must continue to make this judicial promise a legislative reality.
4. Our Lady of Guadalupe School v. Morrissey-Berru
Our Lady of Guadalupe School v. Morrissey-Berru answers this question: “To what extent is the Church protected from the intrusion of the government when it comes to the content of its mission and who it will employ to carry out that mission?”
The answer the Court gave is that it is well protected by the First Amendment of the Constitution, and therefore, the government may not interfere in the internal workings of the Church both with regard to what it teaches and who does the teaching. Again, this is a very good ruling which strengthens our religious liberty rights.
5. Bostock v. Clayton County
The final Court decision I’ll call your attention to is the Bostock v. Clayton County case. I believe it deserves a more extensive description and analysis because of its potential to threaten our religious freedom, in particular, the content of our teaching and preaching. Many commentators believe its impact will be as far reaching as Roe v. Wade.
UNDERSTANDING WHAT HAPPENED
In spite of our deepest human beliefs, intuitions, and experiences:
The Court, in essence, denied the reality of and meaningfulness of the sexes—male and female.
The Court also denied the integrity of the human person as a union of body and soul / mind by giving its endorsement to an ancient heresy, which holds that the body is inferior to the mind / spirit, that the body is only a shell in which the “real you,” the mind / spirit, resides.
The Court set in motion a process that will ultimately bring the full force of law to bear on anyone speaking, acting, and perhaps even thinking in ways that contradict these new “official religious pronouncements” … these falsehoods … concerning human nature and the human person.
In the short term, the Court made it unlawful for any non-church business to make adverse (from the point of view of the employee) employment decisions based on a biblical understanding of 1) and / or 2) above.
The Courts will, however, allow churches and church-related entities to make employment decisions based on religion and sex (including sexual orientation and gender identity) as long as that decision is grounded in the church’s belief about sexuality rather than on a moral judgment about a particular employee’s sexuality.
In a related positive development, the Court, in Guadalupe, also articulated an expansion of those positions which are protected by the “ministerial exception” doctrine.
PRACTICAL STEPS IN RESPONSE
If a ministry desires to hire only employees whose belief and lifestyle comply with its Statement of Faith, then that ministry must be consistent and rigorous in applying those faith standards and in obtaining a signature from each employee acknowledging and accepting the ministry’s Statement of Faith as a condition of employment.
Regarding the “external face” of the church / school / early childhood center: Check to be sure the congregation’s / Synod’s Faith Statement is accurately reflected on your website, in handouts, the Employee Handbook, the Facilities Use Policy, and any other publicly available documents.
Regarding the internal working of the church / school / early childhood center: Be sure your Core Documents (Articles of Incorporation, Bylaws, Employee Handbook and Contracts, and Volunteer Agreements) are consistent with your Faith Statement.
Consider instituting a separate personal conduct policy as part of the Employee Handbook with supporting scriptural references.
Prepare job descriptions for all paid and volunteer positions, taking care to indicate how each position helps to carry out the religious mission of the church / school / early childhood center; this is especially true for leadership positions, teaching positions, or any position which will be seen as publicly representing the ministry.
Be sure hiring practices and procedures call on employees to actively confirm their agreement with, their support of, and their willingness to live by the Statement of Faith. Consider annual renewal signatures.
FURTHER READING / RESOURCES
“How the Church or Ministry Can Hire Only Employees Who Share the Tenets of Its Faith: Religious Employment Practices in Light of Bostock v. Clayton County, Georgia” by Schmitt Schnek Casey Even & Williams, P.C., Robert Erven Brown Esq., and Church & Ministry Law Group. White Paper. 6/23/20.
“The Metaphysics of Bostock” by David S. Crawford. First Things. 7/2/20.
“Supreme Court Affirms Religious Institutions Are Allowed to Be Religious” by John Stonestreet. BreakPoint Colson Center. 7/9/20.
“Defending the Freedom of the Church” by Michael P. Moreland. First Things. 7/14/20.
“Bostock” by R.R. Reno. First Things. August 2020.
Summary
The past Supreme Court term was a very important one which will impact the interaction of the Church and the State for many years to come.
On balance, it was a good year for religious liberty of the Church itself but leaves the religious liberty of individual Christians in continuing jeopardy.
With respect to the life issues, it not only failed to address the underlying injustice of Roe v. Wade but also failed to defend “common sense protections” for women undergoing abortions.
It also left significant unresolved issues dealing with the nature of the human person, issues which will continue to make the Church’s public witness to the Gospel of Jesus Christ more challenging going forward.
All of this calls on us to be more steadfast in prayer and more committed to our study of Scripture and its application to our evolving cultural circumstance for the benefit of the neighbor.
If you have questions about any of the cases summarized above, please feel free to contact me via email at fred.hinz@mnsdistrict.org or via phone at 507-317-9634.
God’s blessings to you as you interact with your friends and neighbors concerning public matters on behalf of the Gospel.
In Christ,
Rev. Hinz
Rev. Fredric Hinz
fred.hinz@mnsdistrict.org
LCMS Public Policy Advocate
Minnesota South and North Districts
The Lutheran Church—Missouri Synod