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News flash: Magna Carta and religious liberty


The WSJ: WASHINGTON—The U.S. Supreme Court ruled Wednesday that employment-discrimination laws don't protect ministers, finding that churches have a constitutional right to decide who preaches their faith without government review.

"The church must be free to choose those who will guide it on its way," Chief Justice John Roberts wrote for a unanimous court, citing principles of ecclesiastical independence dating back to the Magna Carta and embodied in the First Amendment of the U.S. Constitution."

A remarkable unanimous Supreme Court decision with a reference to Magna Carta's affirmation of liberty.

On the banks of the River Thames, in June 1215, John agreed to set his seal to Magna Carta, which begins, In the first place we have granted to God, and by this our present charter confirmed for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate. . .

What then of Britain, where this freedom originated, but whose Archbishop of Canterbury is appointed by the government?


Some of you wanted to see the actual text of the U.S. Supreme Court decision, which refers to Magna Carta. Here is the whole text, and a highlighted section:

Controversy between church and state over religious offices is hardly new. In 1215, the issue was addressed in the very first clause of Magna Carta. There, King John agreed that "the English church shall be free, and shall have its rights undiminished and its liberties unimpaired." The King in particular accepted the "freedom of elections," a right "thought to be of the greatest necessity and importance to the English church." J. Holt, Magna Carta App. IV, p. 317, cl. 1 (1965).

That freedom in many cases may have been more theoretical than real. See, e.g., W. Warren, Henry II 312 (1973) (recounting the writ sent by Henry II to the electors of a bishopric in Winchester, stating: "I order you to hold a free election, but forbid you to elect anyone but Richard my clerk"). In any event, it did not survive the reign of Henry VIII, even in theory. The Act of Supremacy of 1534, 26 Hen. 8, ch. 1, made the English monarch the supreme head of the Church, and the Act in Restraint of Annates, 25 Hen. 8, ch. 20, passed that same year, gave him the authority to appoint the Church's high officials. See G. Elton, The Tudor Constitution: Documents and Commentary 331-332 (1960). Various Acts of Uniformity, enacted subsequently, tightened further the government's grip on the exercise of religion. See, e.g., Act of Uniformity, 1559, 1 Eliz., ch. 2; Act of Uniformity, 1549, 2 & 3 Edw. 6, ch. 1. The Uniformity Act of 1662, for instance, limited service as a minister to those who formally assented to prescribed tenets and pledged to follow the mode of worship set forth in the Book of Common Prayer. Any minister who refused to make that pledge was "deprived of all his Spiritual Promotions." Act of Uniformity, 1662, 14 Car. 2, ch. 4.

Seeking to escape the control of the national church, the Puritans fled to New England, where they hoped to elect their own ministers and establish their own modes of worship. See T. Curry, The First Freedoms: Church and State in America to the Passage of the First Amendment 3 (1986); McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1422 (1990). William Penn, the Quaker proprietor of what would eventually become Pennsylvania and Delaware, also sought independence from the Church of England. The charter creating the province of Pennsylvania contained no clause establishing a religion. See S. Cobb, The Rise of Religious Liberty in America 440-441 (1970). . . HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL, PETITIONER, v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

One can't help wondering again why, given Magna Carta, the English Church could not emerge free of government appointments. But these are not the only constitutional questions which compellingly confront us. Think of Magna Carta and the European Union, think of the Bill of Rights 1688/89 with its absolute prohibition of foreign rule and the European Union. . .must we simply shrug our shoulders? -David

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