The Fourth Circuit has recently released an opinion affirming the right of churches (and other religious organizations) to abide by their religious convictions in making decisions about employees.  Federal law prohibits religious discrimination—a good thing when secular employers discriminate against people of faith—but churches could not achieve their spiritual mission if they could not “discriminate” by selecting employees who fully support that mission.

The case is Kennedy v. St. Joseph’s Ministries, Inc.  Lori Kennedy was employed as a geriatric nursing assistant at the Catholic nursing care facility operated by a religious order.  Residents and their families complained about Kennedy’s long skirts and head coverings—clothing she wore as a matter of religious principle.  Kennedy was told that her clothing was “inappropriate for a Catholic facility,” and she was discharged when she refused to change it.  In ruling for the church employer, the Fourth Circuit followed U.S. Supreme Court precedent affirming the right of a religious organization to “discriminate” on the basis of religion in its hiring decisions.

A case with similar issues will be heard in the U.S. Supreme Court on October 5, 2011.  Hosanna Tabor-Lutheran v. Perich.  (I wrote a brief for that case on behalf of Justice and Freedom Fund.)  Perich, a commissioned minister according to Lutheran tradition, taught at a church-owned school.  She sued after the church refused to immediately reinstate her during a time she was on disability leave.

Hosanna concerns the court-created “ministerial exception” that respects the right of a religious organization to select the persons who will carry out its religious mission.  The principle is particularly applicable to pastors, but it extends much further and is based on the First Amendment Free Exercise Clause.  Kennedy is about an exemption created by federal statute, and it covers all employees—not just “ministerial” employees.  Both cases are about protecting the right and ability of religious organizations to handle their internal business free of state interference.  The Religion Clauses of the First Amendment were designed to guard that right.

By deborahlawyer

Senior legal counsel for JUSTICE AND FREEDOM FUND ( who writes briefs about religious liberty and free speech; author; speaker; graduate of Westminster Seminary; ventriloquist-songwriter with fun, creative ministry to young kids (

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