The Federalist Blog

Hosanna-Tabor Evangelical Lutheran Church and School (“Hosanna-Tabor”) is a religious school in Redford, Michigan who terminated employment of a teacher and commissioned minister named Cheryl Perich after a disability-related leave of absence for narcolepsy. Perich taught a full secular curriculum along with religion and lead students in prayer. Perich filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), alleging discrimination and retaliation in violation of the Americans with Disabilities Act (“ADA”).

Hosanna-Tabor argues the case involves a dispute over religious authority, and the First Amendment doctrine that recognizes a “ministerial exception” removes the school from such litigation because judges would be interfering in the pastoral and religious mission of the school. The Obama Administration argues the “ministerial exception” should not apply when churches or religious schools fire someone in retaliation for asserting their rights under disabilities law.

This case is being paraded as a high stakes First Amendment test over separation of church and state but in reality, it has nothing to do with any enumerated powers invested in the central government over anything touching religion or labor.

For starters, there is no hidden “ministerial exception” under the federal First Amendment because the amendment is solely directed against Congress to make law, and therefore, extends no protections to individuals or groups within State jurisdictions.

Both the Establishment Clause and Free Exercise Clause declares Congress shall not nationalize any religious denomination into a national church to then compel by law for people to support and worship such an establishment, which in return would effectively deny people the free exercise of worshiping another form of religion through dictates of their own conscience. Madison described the First Amendment as a “proof” no power was delegated in Congress to do the things it prohibits rather than security people could claim for themselves.

Since Cheryl Perich (or anyone else) is not a victim of any congressional act to established a national religion and compel by law that it is the only religion people may worship, makes it a rather improper clauses to appeal to in 99% of all religious matters.

Of course, this did not stop justices from ignoring the “black on white in the text of the Constitution” that says, “Congress shall make no law” during last Wednesday’s oral arguments.

Chief Justice Roberts asked if “there anything special about the fact that the people involved in this case are part of a religious organization?” The government’s response was that it made no difference whether it was a religious organization or a labor organization, or any other form of association of people.

Justice Scalia thought the government’s response to the Chief Justice was “extraordinary” because “we are talking here about the Free Exercise Clause and about the Establishment Clause.” Scalia added, “but there, black on white in the text of the Constitution are special protections for religion.”

Justice Kagan also announced she had never personally read the actual words of the First Amendment when she said, “I too find that amazing, that you think that the Free – neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.”

The first question any honest justice of the court should ask is why a religious employment dispute originating within a State is a federal matter to begin with. The EEOC might respond by asserting it is a federal matter due to Congress exercising “its power to regulate commerce among the several States and with foreign nations,” through an act approved June 10, 1963.

Since the government is asserting authority over discrimination and employment matters within States through the authority to regulate commerce “among the several States and with foreign nations,” would be fair to ask why the government does not enforce anti-employment discrimination laws in other nations. After all, Chief Justice Marshall in Gibbons v. Ogden said the regulation of commerce is regulated in the same manner among the States as with foreign nations, and just as with foreign nations, commerce among the States “must, of necessity, be commerce with the States.”

The commerce clause of course, does not say anything about regulating commerce “within” States or foreign nations, or regulating the internal commerce on behalf of States and nations. Such activities as buying and selling and labor were never a substance of commercial intercourse “between” different powers. Only the items of importation themselves were the subject of rules and regulations in any commercial intercourse “between” different powers.

If current federal jurisprudence were not based upon erroneous assumptions, or corrupt constructions, the case would simply be dismissed for want of authority over labor matters. Scalia remarked during oral arguments that “[t]here is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization.”

There is nothing in the Constitution that explicitly prohibits the “government from mucking around in a labor organization” in France, either. If the day comes when Congress becomes arrogant enough to try, will the court hold it is a valid regulation of foreign commerce?

There was no need for the Constitution to explicitly prohibit anything since the federal Constitution is merely a limited instrument of defined powers. In other words, a power not expressly given is a power expressly denied. Moreover, history of regulating commerce shows labor or discrimination was never anything States and nations ever regulated between themselves because it was impossible for such things to be attached to the commercial intercourse between them. It would have made a mockery of federalism if the central government could claim powers it defined for itself over the States.

In short, both the court and government on Wednesday flunked basic Constitution 101.

Related: Jefferson’s Wall of Separation Metaphor