NEWS FROM THE CENTER DIGEST November 20, 2020
LCMS Files Amicus Brief to Protect Church Autonomy and Integrity November 20, 2020
In mid-October, The Lutheran Church—Missouri Synod (LCMS) and the Wisconsin Evangelical Lutheran Synod (WELS), represented by First Liberty Institute, filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit case Demkovich v. St. Andrew the Apostle Parish. The brief supports an important constitutional principle protecting the independence of churches and other religious organizations. Because churches work through their ministers to fulfill their religious missions, the Constitution forbids secular courts from intruding in the employment relationship between churches and their ministers to protect religious autonomy.
This case revolves around St. Andrew’s the Apostle Parish, a Catholic church that employed Sandor Demkovich as a music director who selected music to accompany church liturgy and led parishioners in worship. When Demkovich entered into a same-sex marriage, violating Catholic doctrine, St. Andrew’s ended his employment. Demkovich sued, claiming he was discriminated against and subjected to a hostile work environment. The parties agree that Demkovich served in a ministerial role at the church and, thus, the church had a constitutional right to terminate his employment. The parties disagree about whether former ministers may nevertheless bring an employment discrimination lawsuit stemming from their employment relationship. The case raises the question of how deeply courts can inquire into and evaluate the way that churches and other religious organizations communicate internally about their religious beliefs and supervise their ministerial employees.
The LCMS has a particular interest in this question because of the landmark 2012 Supreme Court decision involving an LCMS school. In that case—Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC—the Supreme Court concluded that the First Amendment protects religious organizations’ employment decisions regarding “ministerial employees” (those involved in teaching the faith and ministering to the faithful). This “ministerial exception” to employment discrimination laws recognizes that judicial investigation into the way religious organizations select and control ministerial employees would threaten the free exercise of religion as well as the religious autonomy of such organizations.
Just this past summer, the Supreme Court reiterated this principle in Our Lady of Guadalupe School v. Morrissey-Berru, saying, “Under [the ministerial exception], courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions…. [A] church’s independence on matters ‘of faith and doctrine’ requires the authority to select, supervise, and if necessary, remove [key employees] without interference by secular authorities.”
In late August of 2020, a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit decided the case against St. Andrew’s. In response, St. Andrew’s petitioned the entire court to rehear the case. Nine amicus briefs, including the LCMS/WELS brief, were filed in support of rehearing.
The Seventh Circuit panel wrote that courts can review the way church leaders “chose to express Church doctrine on same-sex marriage” and the way they “exercise[d] [their] supervisory powers” to determine whether these created “a hostile environment.” Of course, the LCMS believes that discussions of church doctrine should be respectful. But for courts to monitor how ministers “express church doctrine” and whether such expressions create a hostile work environment poses the same threat to free exercise and the same risk of entanglement in ecclesiastical matters as do legal challenges to a church’s hiring and firing decisions. For example, an amicus brief filed by constitutional law professors explained, “[T]he question of how to train ministers to behave and interact with each other inevitably involves religious norms and methods of conflict resolution that lie beyond the ken of secular courts.” To allow employees such as Demkovich to gerrymander their claims—taking discriminatory firing claims and reframing them as hostile work environment claims—would eviscerate the protections won in previous cases. Church autonomy and integrity require that religious institutions be allowed to control their own internal affairs and follow their own convictions in handling ministerial employees and their complaints.
The Seventh Circuit is still considering whether to rehear this case. If it denies the petition for rehearing, St. Andrew’s could petition the Supreme Court to hear the case, a request that would be bolstered by the fact that the circuit courts of appeals are split on this question. Whatever the outcome, the LCMS will continue to follow this development in the law and to advocate for the preservation of religious freedom.
Rebecca Dummermuth is Counsel for First Liberty Institute. Stephanie Taub is Senior Counsel for First Liberty Institute.
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Are you up to date on a Supreme Court case on the refusal of Catholic Social Services of Philadelphia to allow same-sex couples to be foster parents? Learn more from Nick Reaves of the Becket Fund for Religious Liberty.
"We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.” — Abraham Lincoln’s first inaugural address
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