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Executive Power on Steroids?
William Suter comments in the Hoover Institution's Defining Ideas:
Much has been made recently about the Obama administration’s aggressive and excessive use of executive power. Examples include making recess appointments when the Senate was not in recess and repeatedly changing significant parts of the Patient Protection and Affordable Care Act (Obamacare) without express legislative authority. Similar excessive executive authority has been used in executing laws pertaining to entitlements and immigration.
he administration also exerts its strong-arm on a more local level, as evidenced by several recent U. S. Supreme Court cases. In those cases, which have received very little attention, the Obama administration took a crabbed view of an individual’s fundamental rights. It is one thing to be a liberal or a progressive administration; it is quite another to be hostile to fundamental individual rights. The cases described in this essay reflect an administration that is antagonistic to fundamental rights guaranteed in the Constitution.
Hosanna-Tabor Evangelical Lutheran Church v. Equal Employment Opportunity Commission (2012)
Cheryl Perich was a teacher at the Hosanna-Tabor Evangelical Lutheran Church, a small religious school in Michigan. She had undergone religious training and was certified to teach religious courses and lead religious services at the school. She also taught secular subjects. Her religious work took up only about forty-five minutes of her day.
In 2004, Perich became ill with narcolepsy and could not start the school year, but the school continued paying her for seven months. She subsequently attempted to return to work, but the church had already hired a replacement and, because of Perich’s behavior, the school principal did not think she was ready to resume teaching. She was disruptive and threatened a lawsuit, which violated written Lutheran Church doctrine. The congregation conducted a thorough due process hearing, rescinded Perich’s “call,” and terminated her employment. The termination decision was based on doctrine; it had nothing to do with disability.
Thereafter, Perich filed an Equal Employment Opportunity Commission (EEOC) complaint, claiming discrimination under the Americans with Disabilities Act. The EEOC ultimately filed suit against the church. The U.S. District Court ruled for the church based on the “ministerial exception” doctrine. The Sixth Circuit Court of Appeals reversed, holding that Perich did not qualify as a minister under the ministerial exception.
The question presented when the Supreme Court considered the case was whether the ministerial exception doctrine applies to a teacher who teaches secular subjects and also teaches religious courses, leads students in prayer, and is a commissioned minister. The ministerial exception is a long-standing legal principle providing that ministers cannot sue a church over employment issues. For example, it would violate the religion clauses of the First Amendment for courts to compel the ordination of women by the Catholic Church.
The Solicitor General, representing the EEOC, claimed there is no such thing as a ministerial exception. This was a startling position to take, inasmuch as all federal circuit courts that had considered the matter recognized the ministerial exception as a legitimate doctrine.
In a unanimous decision, the Supreme Court held that Perich was a minister under the ministerial exception. It further held that the Establishment Clause and the Free Exercise Clause of the First Amendment (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”) barred suits brought on behalf of ministers against their churches claiming termination in violation of employment discrimination laws.
Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such a decision interferes with the internal governance of the church. By imposing an unwanted minister, the state infringes the Free Exercise Clause. Furthermore, giving the state the power to determine who will minister to the congregation also violates the Establishment Clause, which prohibits government involvement in such religious decisions.
The Supreme Court sent a strong message to the Obama administration that the Constitution prevents the government from interfering with a church’s ability to select its own ministers. . . .
Source: http://www.fedsocblog.com/blog/executive_power_on_steroids/
