Posted on 10/13/2011 8:00:13 AM PDT by SeekAndFind
Last week, President Obama's Justice Department asked the Supreme Court to hear oral arguments in a case that pits religious protections against the courts' ordinary ability to intervene in a labor dispute to prevent discrimination.
In the early 2000s, Cheryl Perich was a "called teacher" or "commissioned minister" at Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich. As such, she taught religious classes, led students in prayer and incorporated religious teachings into secular subjects like math, science, social studies and art.
But in 2004, she was diagnosed with narcolepsy and became unable to teach the fall semester that year. When she failed to return to school in January 2005, the school hired a replacement teacher. The school wanted to “peacefully release” Perich from her “call,” but Perich demanded she be reinstated — and threatened to sue the school if she wasn’t. It was that threat of a lawsuit — not Perich’s narcolepsy — that led the congregation to “rescind her call” (i.e. fire her). Apparently, it’s against church teaching to take an internal dispute of that sort to the secular courts.
But, now, the Obama DOJ wants the courts to force the Lutheran church and school to reinstate Perich, saying that the school fired Perich in violation of the Americans with Disabilities Act.
Acting Deputy Solicitor General Leondra Kruger told the court, during oral arguments, that the federal government should be able to trump the church on these decisions.
“Their submission is that the hiring and firing decisions with respect to parochial school teachers and with respect to priests is categorically off limits,” said Kruger. “And we think that that is a rule that is insufficiently attentive to the relative public and private interests at stake, interests that this court has repeatedly recognized are important in determining freedom of association claims.”
In other words, in the interest of protecting parochial school teachers from discrimination for disabilities, the courts ought to be able to tell churches they have to retain someone as a minister. Again, the school didn’t fire Perich because she had a “disability”; they rescinded her call because she violated church teaching by threatening to sue. But even supposing Perich’s narcolepsy was the reason she was fired, the school’s decision ought to be protected under the “ministerial exception”:
But the ADA contains the same “ministerial exception” as other civil rights laws, a 40-year-old doctrine that precludes courts from interfering in matters “involving the employment relationship between a religious institution and its ministerial employees.” The idea is that you can’t use civil rights laws to force Catholic churches to hire female priests, or orthodox synagogues to ordain Catholics, without running afoul of the First Amendment.
It’s easy to see, though, why this isn’t so clear-cut:
The courts of appeals have for years struggled with questions about this ministerial exception, ranging from “What is a minister?” to “How the hell should we know what a minister is?” We can agree that the cafeteria lady isn’t a minister. But what about a secular teacher who performs some religious duties?
That’s what makes this a case to watch: The Supreme Court will presumably at last clarify the issue. As Terry Jeffrey of CNSNews.com writes, “What is at stake is the First Amendment and the religious freedom of all Americans.”
Judicial supremacy, rather the lack of it, is what needs to be made clear, especially to the author.
Unfortunately, it is not a joke.
What offices of what goverment hand picked and aproved theses Federal Employees now standing in judgement of the extent of their own power?
The Federal employees in black robes may choose to be magnanimous, but to expect such out of them on a regular basis is in itself madness. The Church should ignore the edict of the Federal Government and do whatever it is they thought they aunt to do according to the dictates of their own believes.
The Federal Government NEVER had the authority to tell anyone who they must and must not employee. That power is simply not listed in the Federal constitution, much less a Church. For them to aggressively usurp this power is yet anther insult to the people and States of theses once “united” States.
Let them give their opinion as private citizen and be ignored. Should they attempt to uses force, let them be treated as the common criminals & traitors they are.
While I believe the SCOTUS will find on behalf of the church, the big argument will be whether they reach a narrow or broad decision.
Religions are essentially exclusionary, almost by definition. If they were not, they would have no distinct purpose in being.
However, the SCOTUS could also hit a home run by declaring that *secular* and *semi-secular* activities owned and operated by a religion or church may also be exclusionary.
For example, Catholic hospitals could not be required to issue birth control or perform abortions under Obamacare—which in turn would be a stern indicator of the intent of the court when it hears the Obamacare case.
States and the federal government could not force parochial schools to do much of anything, unless it was done voluntarily in exchange for government money, and teachers were otherwise certified.
However, there is also a big problem with school curricula, if it teaches things that are not legal. On one hand Muslim schools could be prevented from calling for murder and the violent overthrow of the American government. But on the opposite tack, government might decide it is illegal to teach that homosexuality is wrong.
So this is going to be a very interesting court case from a lot of angles.
I have a HUGE problem with your analyzes. Nether the Federal Government nor its SCOTUS employees have any business telling Any religious institution to do, or not to do anything nor any school for that matter.
Yes under the same ground Muslims could teach hate and overthrow of the Government. That is intrinsically a right which the Federal goverment is not authorized, indeed is specifically PROHIBITED from usurping.
The States on the other hand are an open book subject only to the limits of their own Constitutions in this matter, as with most every other matter.
The “Americans With Disabilities Act” has been stretched further than my old Playtex girdle!!!!
I am expecting those who are found with hard core Porn on their computers to claim a disability!!
Unless the medication Pro-vigil has changed narcolepsy. I know my Uncle who had it, even with meds, would just zonk out sometimes in the middle of playing with his kids.
If they’d wake him he’d get almost violent.
That said, some of my former Teachers induced narcolepsy in their students with their sing song, boring teaching methods.
Constitutionally you are correct. My argument, however, was not what should be, but what will likely happen, its reasons and ramifications.
This session of the SCOTUS is expected to be groundbreaking, with several critical cases, but groundbreaking is one thing, and Earth shattering is another. The Supremes have made it clear that they are not going to try and force the US back to constitutionalism on their own, until congress and the president at least try to do so.
Basically according to the Federal Employees we have to elect to stick to the limits of the Constitution, and keep electing to stick to its limits. Which of course is anther way of saying the Constitution is but a piece of paper in the Hands of the Federal Government and bares no relevance one so ever as its all up to the Federal Government to decide when and where to “restrain itself” IE opt not to usurp rights.
the founding fathers realized that no government body could be expected, on its own, to restrain itself. So they came up with several different schemes by which groups would have conflicting interests and balance each other. The most well known of these schemes in the three branches of government.
However, there is also a balance between the federal government, the state governments, and the people. But this balance was terribly skewed with the 17th Amendment, the direct election of senators, which both stripped the power to control the federal government from the states, while at the same time removing the protective shield of the states from the people, so the federal government could directly involve itself in their lives.
Unfortunately, senators love the 17th Amendment, as they no longer need to care about their home state, so would never vote to repeal it, which leaves our government horribly out of balance.
So I’ve proposed the creation of a new body, that would both recreate this balance, but go further, to establish a continual “pruning” mechanism for the federal government, to in an orderly manner reduce its power to constitutional limits.
This new body would be like the US senate in composition, with two members specifically *appointed* by each state legislature to terms parallel to those of their two senators.
These would be 100 state judges appointed to a Second Court of the United States. Not a federal court, to determine constitutionality, which is what federal courts do, but a “jurisdictional court”, with the added responsibility of original jurisdiction to hear all lawsuits between the federal government and the states.
The 2nd Court would be inferior to the SCOTUS, but superior to the federal district courts.
Each year, some 3,600 federal judges essentially “federalize” local and state laws, to examine their constitutionality. But once federalized, they tend to stay in the federal domain, a huge power grab from the states. So after their constitutional questions have been resolved, the 2nd Court would decide if the case indeed does have a constitutional issue, or if it should just be returned to the states.
For example, unless there was a serious constitutional problem with a state death sentence, the states themselves, through this court, could take the decision away from whimsical federal judges, and say, “Not your issue, go ahead and carry out the sentence.”
Importantly, the “pruning” mechanism is by states suing the federal government, claiming say that the Department of Education has no constitutional basis, so should be abolished. If the other States agree then the court decides Education should be cut off.
“These would be 100 state judges appointed to a Second Court of the United States. Not a federal court, to determine constitutionality, which is what federal courts do, but a “jurisdictional court”, with the added responsibility of original jurisdiction to hear all lawsuits between the federal government and the states.”
Like the idea in principle but this kills it:
“The 2nd Court would be inferior to the SCOTUS, but superior to the federal district courts.”
The Cort must be superior to the Federal court being directly authorized by the states, and the Federal court cannot be in a position of judging the extent of its own power.
* Let the Federal courts be restricted to trying issues which are indisputably in the Federal jurisdiction.
* Let the new “Constitutional court” be restricted to deciding jurisdiction not cases.
* Let it be explicitly stated that The Federal governments own hand picked court only have jurisdiction over matters specifically UNDER the Federal Constitution not OVER the Federal Constitution itself.
That this “Constitutional court” appointed by the States has jurisdiction on implicitly enforcing the Constitution in terms of jurisdictional disputes only. That is to say they are NOT empowered to try any case themselves only to decide under which government’s court the case must be decided with preference toward the most local.
Perhaps it might even be wise to insure that the judges of this court themselves have some skin in the game by utilizing the State’s chief Justices, to compose this “Constitutional court”?
PS: Ultimately if you want to insure the consent of the governed you must restore the right of unilateral secession/revolution. Only in a voluntary union, must the General goverment serve its members for the mutual benefit of all rather than game & exploit them.
“The 2nd Court would be inferior to the SCOTUS, but superior to the federal district courts.”
I gave you the short version, but there is a method to the madness.
Each year, the district courts forward around 8,000 appeals to the SCOTUS, which can only consider a few dozen. This huge bottleneck means that if rejected, cases revert to the decision of the district courts, for better or worse. This results in a huge amount of bad law, in effect, legislated from the bench.
The next point is how would the 2nd Court reach its decisions? At first, the 8,000 cases would be heard as they are typically heard at first by the district courts, by 3 judge panels. So just 3 state judges out of a hundred would decide its jurisdiction, based on the lower federal courts decisions about its constitutionality.
This might settle many of the cases, but if appealed, the case would be heard by the 100 judges of the 2nd Court, with an interesting twist. If a simple majority (51) of the state judges affirmed or overturned the 3 judge panel decision, the 2nd Courts decision could still be appealed to the SCOTUS, but,
the SCOTUS would be required to assert actual constitutional language to overturn this decision, in its decision, *not* extrapolations, interpolations, or judicial precedent or interpretations of the constitution.
And then, if 2/3rds of the 2nd Court decided one way, the decision could not be appealed to the SCOTUS at all.
(As an aside, there is a movement in congress right now for another constitutional amendment, that if just 2/3rds of the states resolve against a federal law or regulation, it would be overturned. In effect, a constitutional convention without the risk of calling one. But the flaw in this is that even if 2/3rds of the states resolved, it would overturn just a single onerous federal law. A huge effort for a tiny return.)
In effect, with the 2/3rds finality from the 2nd Court, plus its original jurisdiction over lawsuits between the federal government and the states, the 2nd Court would effectively be a standing constitutional convention, but not to create new laws, but as a permanent pruning mechanism against the growth of government.
And as a standing body, the 2nd Court could take on the decisions of whimsical federal judges, overreaching bureaucrats, unfunded mandates on the states, presidential fiat, and every other variety of excessive federal growth.
Unfunded mandates should be simply regarded as unconstitutional and ignored by the States on the ground that the Federal goverment has no right to tell us how to govern our own States.
This should be particularity clear cut when it comes to spending. If a State like a man, has not control over his own wallet it has no fair chance of keeping a balanced budget. The Feds should be prohibited from giving money to the State on any conditional grounds, to carry out their responsibility of helping to maintain the militia They should buy the weapons and equipment themselves and then give the product to the States.
Much like you would give food directly to a beggar to keep them from using it on drugs or something.
problem solved.
I don’t beleive residing the direct Constitutional representatives of the States to 2nd tier status after the Federal Employees can at all be justice. After all it was our States that originally ratified and empowered the Federal Constitution and thus “in theory” created the monster that has sense overthrown the same Constitution.
By all rights our States know better what powers they agreed to cede then the out of control monster of their creation.
Frankenstein’s monster may have gotten out of control but that’s no reason civilized people should relegate Frankenstein to 2nd place behind the out of control monster.
The idea is to bring that monster back under control not to accept that it is out of control and negotiate a Constitutional monarchy with it...
You may be right that by assuming the 2nd their status this convention could wield power over the 8000 cases the Federal employees decide to ignore.
But there are 2 problems with that hypothesis:
1: The Federal Employees only choose to ignore a case if its insignificant to them. They will therefore NOT choose to ignore cases that are significant, specifically cases that decide how much power they have.
2: To decide 8000 case requires a great many courts. If SCOTUS only does about 12 of them a year then we can assume we would need about 665 more courts to pick up the remaining case load.
That is a big problem, particularly sense our State legislators have historically proven to be even slower as selecting nominates then the Congress. But lets say they all selected 2 judges assuming groups of 9 they would have to basically do the same work as ~60 federal judges and that’s just right now.
As our combined population grows invariably there will be more and more cases requiring more and more courts most all of which will be appealing to higher and higher courts of which their will still be fewer and fewer.
The case load of the SCOTUS AND this 2nd tier “Constitutional court” will only go up. We already are limited in how many judges we can appoint structurally because our legislators(including congress) only have so much time.
I realize my proposal doesn’t make the problem much easier, but it does mitigate it by resolving only major jurisdictional disputes not cases.
So instead of spending time & resources trying to figure out whether Johnny Killed Susan, they simply decide whether Texas, Arkansas, or Federal court would resolve the matter if and only if their was a dispute, by the Governments involved.
In either case the Supreme courts of Texas, Arkansas, and the United States would have the final appeals for the case according to their respective laws.
Its a rather simple case load limited by 51 potential parties(as apposed to 310 million), therefore a constitutional court could take its time.
Then just the state courts would expand and adjust with population, not everyone’s courts.
Right now, many federal cases are impressively petty as well as being redundant.
My own personal bugaboos are the utterly inane “public school cases” that are brought before hundreds of federal benches every year. Off the top of my head these involve just a handful of issues: school dress codes, what student newspapers publish, student clubs, prayer, and school discipline. For some perverse reason these titillate federal judges so much that they insist there are federal issues involved, and “It is a good way to teach children.”
No. Spending $100k of taxpayer money to argue “the constitutional issues” of how many inches student dresses can be above the knee is not a “good way to teach children” for anything but unconscionable waste of money.
With its extremely restricted docket, the SCOTUS has *twice* agreed to hear arguments in the infamous and ridiculous “Bong Hits For Jesus” case, though I believe the high school student involved in the incident is now in his 30’s.
And conversely, America has denied justice to vicious murderers who a jury of their peers had sentenced to death on the “whimsy” of federal judges who openly say they “don’t like” the death penalty, so they are not going to let it be enforced. Their endless pursuit of minutiae they can use as an excuse is just pathetic.
Federal judges now regularly *order* state legislatures to appropriate moneys they do not want to, and if they refuse, these judges appoint “special masters”, that effective rule that part of the state until it meets the judges satisfaction that they are obedient to his will.
In our current system of government, there are no effective constraints on the federal judiciary. Congress could decide to prohibit them from hearing certain cases, but the list of prohibitions would run into the thousands.
Yet another good reason to restore some authority to the states in a body that will restrain a runaway federal government.
I couldn’t agree more, the 3rd branch of the Federal government has descended into tyranny. The only way to effectively check this branch is to do as Jackson did. Ignore them.
This will of course require nullifying their modern tools to enforce their will. Our States will have to find both a will and a way to ignore or if necessary arrest theses “special masters” they appoint. We must be first to pronounce that the courts edicts are nearly lawless and unjustified under any plainly written Constitution of Civil Government we the people ever agreed to.
That in presidence to our oath to uphold the Constitution we are required to ignore & interpose against their usurpation less the court be allowed to overthrow the constitution of theses united States.
We must establish a president by which this is done, by oath taking public officials, rationalize and defend it. Like any lawless bully the Federal court must be stood up to, they are NOT the dictators of the Constitution, if they were there would be no constitution only their discretion.
Furthermore ignoring jury trials is strictly and specifically FORBIDDEN in the Federal Constitution by the 7th amendment and yet somehow the Federal court has found many ways to in practice “retry” their verdicts. A reversal of our Constitutional protections has somehow been effected over the last 200 years..
The matter of how to restore is indeed a daunting one, particularly as we must do so while dodging the tyrannical dictates of this unyielding monster. A cultural reeducation of the whole population is obliviously in order as it will be necessary to arm the whole of the population in resistant to this unchained monster.
To slay a beast with a greater control of the field then yourself you must always exploit that beasts weaknesses and nature as to effectively trick it into being where it is most vulnerable.
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