The Obama Administration, Religious Freedom, and the Supreme Court

At The Daily Caller, Cato Institute Senior Fellow Walter Olson examines the Obama administration's involvement in yesterday's Supreme Court arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, a case which deals with the "ministerial exception" to federal anti-discrimination law:

A Michigan teacher who taught a mix of secular and religious topics at a (now-closed) religious grade school filed suit against the school over alleged retaliation under the Americans with Disabilities Act. The church had designated her particular teaching position (unlike some others) as reserved for persons with a "calling," and it deemed her not to have such a calling, given her willingness to resort to court action rather than internal church dispute mechanisms. But perhaps the school had erred by reserving the position for persons with a calling. If so, who should decide where to draw the line? The federal Equal Employment Opportunity Commission? A federal court that might be unfamiliar with, or unsympathetic to, church doctrine?

Had the Obama administration sought to sidestep culture-war politics and buff up its pluralist credentials, it might have urged the high court to read the ministerial exception broadly to include jobs including religious instruction, or at least urge it to decide the case at hand narrowly. Instead, it astonished some onlookers by urging the Court to reconsider the ministerial exception entirely.

Read the whole story here.

Comments

[Tman]

I'm interested to see how man knots the left and right ties themselves in to with this case.

Libertarians can safely sit back and say "this isn't the governments business, and if you believe in separating Church and State then this is even more of a no-brainer".

[Tman]

I'm interested to see how man knots the left and right ties themselves in to with this case.

Libertarians can safely sit back and say "this isn't the governments business, and if you believe in separating Church and State then this is even more of a no-brainer".

[Greer]

with a comment so nice, you had to say it twice.

[Libertymike]

Let's make it thrice.

[Greer]

isn't this a seldom used freedom of association issue?

If I run a hippie school, and Chip from My Three Sons shows up to apply, he's not getting the job. Fuck it, I can hire who I want.

[John]

Exactly. Where does this end? If I run a Redskins fan club, do I have to let Eagles fans in? Basically, if there are no exceptions to these laws, we no longer have the right to free association. Association by necessity means dissociating from those people not in the group.

[Apatheist]

Or maybe these laws shouldn't exist in the first place.

[sarcasmic]

Where does this end?

It ends when it becomes a crime to say "No".

[Nancy Reagan]

NOOOOOO!!!

[Denis Reynolds]

I was wearing a Rex Grossman jersey way back when Lovie Smith was making him the fall guy for his own fuck ups. Got the 'skins jersey on order even though I hate the team for obvious reasons.

[o2]

didnt knowz that my 3 sons & the redskinz were religions.

[Tonio]

Then you've never met any Washington Redskins fans...

[Karl Hungus]

I lived outside DC as a teenager, and I remember at the time, the Redskins was the only NFL team that had its own hymn. That coupled with the maniacal fanbase, makes the 'skins a religious entity unto themselves.

[##]

I suspect that's because you don't "knowz" how to read. He's talking about freedom of association. That includes all forms of association and not just religious. Besides, you're perfectly free to start a religion worshiping Fred MacMurray if you wish.

[Libertymike]

My deceased grandmother already did waaaaaaaaaaaaaaay back in the day.

Come to think of it, he was a rather handsome chap in the movies.

[Seamus]

Tman: So you're perfectly OK with the government telling the Archdiocese of Washington that its policy of assigning a priest to be the director of the Spanish Catholic Center is unlawful because it has a disproportionately adverse impact on women? Or, for that matter, that it's unlawful for it to assign only men to be administrators of its parishes (i.e., pastors)?

[Seamus]

Or was your view on separation of Church and State exactly the opposite, that the government needs to back the fuck off all these issues?

[Tman]

The second one, Seamus.

[DesigNate]

Not to speak for him, but I'm pretty sure he was saying they should back the fuck off all of these issues.

[DesigNate]

I don't know what the hell happened there cause I hit submit like 5 minutes ago.

[sarcasmic]

Squirrels. Well hung squirrels like this one.
http://www.dailymail.co.uk/new.....ewers.html

[R C Dean]

Just to play Devil's (ahem) Advocate here:

How is giving religious organizations exemptions from generally applicable laws consistent with the prohibition on the establishment of religion?

Why doesn't the BoR prohibit both imposing burdens on religious organizations because they are religious organizations, and giving privileges to religious organizations because they are religious organizations.

[John]

Because free exercise means just that. If the law inhibits people's free exercise, it is not constitutional.

[R C Advocatus Diaboli]

If the law inhibits people's free exercise, it is not constitutional.

The 1A says: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

How is giving special privileges to a religion not "an establishment of religion"?

Would you enforce the laws against murder against a religion that required human sacrifice? If so, how is this not "prohibiting the free exercise of religion"? If not, how is this not a special privilege given to a religion, and thus "an establishment of religion"?

[Rich]

Would you enforce the laws against murder against a religion that required human sacrifice?

Come on, R C. As every good Christian knows, any "religion" that required human sacrifice would be totally unacceptable.

[John]

prohibiting the free exercise thereof;

there is your answer. If you make a law saying that the Catholic Church has to now let women be priests, you are prohibiting people from being Catholics. Sure it is a special privilege. But it is one written in the Constitution. If you don't like it, get another constitution.

[Denis Reynolds]

RC is right that you can only disentangle this through freedom of association and not the establishment clause because there is a grant of advantage by exclusion from the law. If we excise the progressive's mal-interpertation of association (to sum up -- the exchange of monies changes the applicability of the Constitutional clause) this mental jerking off by the courts and the administration would be irrelevant.

[John]

No he is not right. Sure there is a grant of advantage. But that doesn't matter. The entire establishment clause is a grant of advantage. religion gets special protection from government interference that other associations don't get.

[R C Advocatus Diaboli]

A clause prohibiting the establishment of religion is a grant of privilege to religion? Sure you want to go with that?

How do we distinguish between those laws that will apply to religion, and those that won't?

[Fire Tiger]

Actually the word used is "an" not "the". "an establishment of religion" implies the estanblishment of a single religion. "the establishment of religion", as you are usng it, would be religion as a whole.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;"

I.E.
Congress can not establish a state religion nor can it prohibit people practicing the religion of their choice.

[R C Dean]

To my eye "an establishment of religion" encompasses at least as much as "the establishment of religion.

That said, I think you're right that the original intent was to bar the establishment of an official state religion.

I'm still not terribly comfortable with the notion that any and all religiously ordained practices are immune from the law under the free exercise clause.

The question of how we pick and choose which law apply to religious practices and which don't is still on the table.

[Denis Reynolds]

No he is not right. Sure there is a grant of advantage. But that doesn't matter. The entire establishment clause is a grant of advantage. religion gets special protection from government interference that other associations don't get.

That is fundamentally flawed. Your interpretation can not only be used in the favor of religious organizations as a grant of privilege but be used against them by means of this segregated status to exclude religious affiliated groups from receiving contracts that are available to similar but more secular focused entities. The Founders meant neither of these abuses of the language of the Constitution to occur when they wrote it.

[Zeb]

John, the question is whether religions should be allowed to break certain laws because they are religions. The human sacrifice example seems a bit extreme, but is a better example for this group because it involves something that actually should be against the law rather than things that most here would agree should not be against the law like employment discrimination or drug use. If exceptions to some laws are OK for some religions, where do you draw the line which delineates which laws a religion can break and which it cannot? And where do you draw the line determining what is a religion and what is not. I have long thought that if the religion part of the first amendment means anything, it means that I can make up a religion right now and it should be treated no differently by the government than any other religion. Otherwise, the government is making a determination of what counts as a religion which in my book is a law regarding establishment of religion.

[Fire Tiger]

The human sacrifice example seems a bit extreme
Assisted suicide should be legal.

[R C Dean]

Truly, there is nothing that libertarians will agree on.

[##]

I agree.....no, wait.....

[Eduard van Haalen]

I would suggest that the proper principle was stated by the Virginia Statute for Establishing Religious Freedom (1786):

"it is time enough for the rightful purposes of civil government, for its officers to interfere when [religious] principles break out into overt acts against peace and good order"

http://religiousfreedom.lib.vi.....vaact.html

Does it offend "peace and good order" for a church to require its employees to settle disputes within the church itself, not in the courts? I can see how peace and good order might require that, say, human-sacrifice cases be dealt with in secular courts. But a dispute over accomodating your narcolepsy?

Maybe these Lutherans are thinking about 1 Cor 6:

"Dare any of you, having a matter against another, go to law before the unjust, and not before the saints?...

"If then you have judgments of things pertaining to this life, set them to judge who are least esteemed in the church....

"But brother goeth to law with brother, and that before unbelievers.

"Now therefore there is utterly a fault among you, because ye go to law one with another. Why do ye not rather take wrong? Why do ye not rather suffer yourselves to be defrauded?"

[Auric Demonocles]

Well then you could just ban things that only come up in one religion, and have the ban apply to everyone...

[R C Advocatus Diaboli]

You mean, like the laws against polygamy?

Perhaps Warren Jeffs should not have been tried for statutory rape, because his religion called for girls to be married off and begin bearing children as soon as they hit puberty? Was his trial not a denial of his right to freely exercise his religion?

[sarcasmic]

He was exercising a lot more than his religion.

[Libertymike]

what about the associational rights of the pubescent girls?

[R C Advocatus Diaboli]

Sounds like they got associated consistent with their religious beliefs. Good and hard.

[Fire Tiger]

Polygamy should be legal, consenting adults should be able to "marry" as many people as they want. However the state should be able to limit how third party contractual obligations are applied.

[cynical]

Except that these cases are decided by judges, and most judges would recognize that the law was aimed specifically at one religion and was not narrowly tailored to meet a purpose. I'm pretty sure even RC's 1st amendment would require strict scrutiny.

[Tman]

How is giving religious organizations exemptions from generally applicable laws consistent with the prohibition on the establishment of religion?

Example: Priest?penitent privilege is different on a state-to-state basis. Some allow the privilege, some don't. Federalism for the win!

Why doesn't the BoR prohibit both imposing burdens on religious organizations because they are religious organizations, and giving privileges to religious organizations because they are religious organizations.

On a federal level, the BOR prohibits because of the establishment clause, whereas the privileges you are referring to are for the most part non-profit tax status exemptions, which again vary from state to state.

It's true that this is an imperfect system, and I agree it should be one way or the other, not this mish mash of both, but we're trying for a "more" perfect union, not a perfect one.

[Zeb]

That is a very good question. I think that the only way around the establishment clause question is if the government treats every religion exactly the same. And that includes the religion that I just made up whose only tenets are no fat chicks, no cripples and you get to smoke as much pot as you want to. I would go so far as to argue that government even defining what is and is not a religion is a violation of the establishment clause.

[TrickyVic]

What the hell does the Disability Act have to do with it?

[Scruffy Nerfherder]

Faithfully impaired?

[Rich]

Not having a "calling" is a disability. It's like not having legs.

[Tim]

The claimant was suspended when she was diagnosed with narcolepsy. Her treatment regimen in place, she applied for reinstatement; and the school/church declined to hire her back in a classroom, citing safety concerns.

She threatened an ADA action; in contrary with church doctrine which required all disputes to be internally settled. This action, by the way, was what proved that she didn't have a 'calling'; and was thus disqualified from teaching.

[Apatheist]

I think people should be able to hire or fire whoever they want for whatever reason but that is some dirty shit right there. How very christian of them.

[Abdul]

In employment law, I've come across more than one narcoletic teacher case (oddly, never a narcoleptic in any other profession).

The reasonable accodatiosn they've requested always seemed to stretch the bounds of reasonable.

That said, the school here really does seem to try to use their religious status as a way to dodge liability in an otherwise run-of-the-mill ADA case.

[Benjamin]

If any church takes money from public funds, say by way of "Faith Based Initiative," than it has given up its right to oppose government oversight. If said church gets no public or taxpayer monies than the government needs to get lost.

[cynical]

Do people on welfare lose their rights too?

[P Brooks]

Fuck it, I can hire who I want.

Of course you can.

[Scruffy Nerfherder]

Was that comment accompanied by a nice pat on the head and a reassuring smile?

[Rich]

Fuck it, I can hire who I want.

No, you can *marry* who you want.

[feminist]

A distinction without a difference!

[Greg]

Excellent! I want to marry Amber Heard.

[MJ]

"Instead, it astonished some onlookers by urging the Court to reconsider the ministerial exception entirely."

What, Root, you think the Left really thinks their principle of "separation of church and state" has to work BOTH ways?

[Leftist]

Separation of church and state means the church has no say in matters of the state, and the state (with me sitting there in court) can tell the church what to do.

Tolerance means I don't have to tolerate anyone who disagrees with me.

Inclusiveness means I don't have to include anyone who disagrees with me.

Equality means I am superior to those inferior people who disagrees with me.

In short, I'm a hypocrite and proud of it.

[ChrisO]

In the cases I've seen, courts seem to use the ministerial exception as a device to reject the employment cases they don't really want. The doctrine is all over the map and very fact-bound, from what I've seen. This is particularly true when it comes to teachers at religious schools, since they are pretty unique in having both secular and religious functions on an equal basis.

The case law is more clear-cut when it comes to church administrative employees or 100% religious employees like preachers. Purely administrative employees who bring sex or race discrimination suits almost always get past the ministerial exception. Preachers almost never get past the exception, even for such seemingly non-religious claims as breach of contract.

[ChrisO]

Americans with Disabilities Act

I think we've isolated the real problem, right here.

[The Emperor Diocletian]

The Christians should be forced to sacrifice to the pagan gods just like everyone else. Why should these Christians get a special exemption from laws everyone else has to obey? You might as well repeal the mandatory-sacrifice law altogether, and that's just crazy talk!

[Nike Dunk Shoes]

thanks