Religion

More Evidence That What Counts as 'Religious Freedom' Is Always In Dispute

SCOTUS unanimously upheld the ministerial exception five years ago. It's already being challenged again.

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In a new feature for America magazine, I explore how worried people of faith should actually be that their religious freedom is under assault. Some believers' claims can seem outlandish, as when one woman incorrectly told CNN before the election that pastors can be taken to jail if they refuse to solemnize a same-sex wedding. Surely the state knows better than to, say, try to dictate a church's operations. Doesn't it?

But as a recent court hearing in New York makes clear, the line between something the government would obviously never do because it would clearly be a violation of the First Amendment, on the one hand, and something the government obviously has the right to do and how dare you suggest your fairy tales should let you get out of following the law, you bigot, on the other hand, is moving all the time.

In its 2012 decision in Hosanna-Tabor v. EEOC, the Supreme Court held that anti-discrimination laws could not be used to interfere with a religious institution's right to select its own faith leaders. The ruling rested on a principle known as the "ministerial exception." In the U.S., a company isn't allowed to refuse to hire someone to a leadership position (or most other positions) because of the applicant's gender or religion. But if that rule were enforced against religious organizations, a Catholic church could be prosecuted for not ordaining women (or, even more absurdly, Protestants, Buddhists, and atheists) as priests. If that prospect doesn't disturb you, try substituting "Islamic mosque" for "Catholic church" and "imam" for "priest."

It's an important precedent. In fact, people sometimes point to Hosanna-Tabor as evidence that conservative Christians who are worried the government is coming for them should cool their jets. In my America piece, I quote the University of Virginia law professor Douglas Laycock noting that "The ministerial exception decision was unanimous. It's not going anywhere."

But even a ruling from all nine justices doesn't foreclose the possibility of expensive lawsuits, as one Christian school is discovering. Earlier this week, St. Anthony School and the Roman Catholic Archdiocese of New York were forced to appear in a Manhattan courtroom to argue that the state can't interfere in their hiring and firing decisions. The suit was brought by a former principal, Joanne Fratello, who says her employment termination violated civil rights law.

The key dispute is over what counts as a minister. A pastor clearly is, while a landscaper clearly isn't. But what about a school administrator?

In this case, as in Hosanna-Tabor before it, there is copious evidence the role in question did involve at least some religious ministry. A summary judgment siding with the school last year noted that Fratello's responsibilities included leading students in daily prayers and meditations, overseeing the religious education curriculum, and generally acting as a spiritual shepherd to pupils and faculty. Before she was hired, she was required to submit a letter confirming she's a practicing Catholic. She also signed a contract certifying she "recognizes the religious nature of the Catholic school and agrees that the employer retains the right to dismiss [the] principal" for any one of a series of reasons, including rejection of tenets of the faith.

But Fratello's attorney argues the ministerial exception should apply only to clergy and—importantly—only within the four walls of an actual house of worship. He wrote in a brief that "a Church itself" but "not Church-affiliated entities operating in the secular world" are protected from interference, later adding, "organized religion must not be allowed to trump American democracy's need for an [sic] non-indoctrinated and educated citizenry."

If the lawyer gets his way, it would constitute the rolling back of a precedent set unanimously by the Supreme Court just five years ago. (Hosanna-Tabor similarly featured a conflict between an educator and a religiously affiliated school.) It would also be the latest in a rhetorical trend seeking to establish that a person forfeits her First Amendment rights the moment she ventures out into the public square. That's a poor simulacrum of the robust liberty the Founders seemed to have in mind when they chose the clear and categorical language that "Congress shall make no law…prohibiting the free exercise" of religion. But it seems, more and more, to be catching on.

In the second half of the 19th century, the Supreme Court repeatedly upheld laws banning the practice of polygamy, despite outcry from members of the Mormon faith. (Subscribers can take a look at my long read in this month's issue of Reason titled "Christians Started the Wedding Wars" for a deeper dive on that.) Yet in 2013, the Supreme Court struck down a Utah law outlawing "bigamous cohabitation" that was part of the very same anti-polygamy legislation the high court had sustained 100 years earlier. And in 2015, as we all know, the justices located a fundamental right to nontraditional marriage in the Constitution.

As I put it in my piece for America, "If something that was constitutional yesterday can be unconstitutional today, it is impossible to predict what might happen tomorrow." Likewise, if something that counted as free exercise yesterday can be fair game for government regulation today, our constitutional protections mean very little in the end.

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  1. “If something that was constitutional yesterday can be unconstitutional today, it is impossible to predict what might happen tomorrow.”

    and if that’s true, then we do not have rights but, rather, privileges that Big Nanny can give and take on a whim. Sort of related, a teacher friend of mine during the DeVos hearings was in full support of ALL options being available to children. This naturally produced some pearl-clutching among those who can’t stand the thought of a religious school. One lawyer smugly lectured me about “Constitutionally-appropriate education” so I asked where in the document the subject of ‘education’ is mentioned. The cricket symphony was entertaining.

    1. Welcome to the party, pal.

    2. The same place vouchers are mentioned.

      1. In other words, the federal government should get out of education entirely. I’m glad we’re in agreement on that.

        1. Because education only for those who can afford it should definitely make for the best possible form of society.

          At least you believe this horseshit out of “principle.” I think Republicans believe it because they want the population stupid enough to vote for them.

          1. Education is a good that requires capital and labor. Thinking that it could possibly be a “right” is the same thing as saying that you have a “right” to others’ labor and capital.

            So your positive “right” means you have a “right” to steal from and enslave others.

            Did I miss something?

          2. I think Republicans believe it because they want the population stupid enough to vote for them.
            that explains all those campus Pubs rioting over ideas they don’t like, seeking safe spaces, doing all the “appropriation” bullshit, etc. Oh, wait; those aren’t Pubs, are they.

            Education is the constitution of damn near every state; it is largely a local concern. Federal involvement has done nothing but fuck it up. Look at the inverse relationship between results and the existence of the federal Dept of Ed.

          3. Education could be whatever people needed it to be if we could get out of the mindset of a government-created one-size-fits-all Central Plan.

            In any case, there’s no way to have the government only part-way in. Either they’re running it or they’re not. And if they are, they’re running it for their benefit not yours or mine. And that’s regardless of party; you don’t seem to get that Republicans could end up running it if you insist on it being run by the government.

            1. they’re running it for their benefit not yours or mine

              This needs to highlighted in every discussion of “government-run __________”.

          4. What the fuck does the federal DOE have to do with any of that?

          5. The states are still perfectly free to provide education as they see fit.

      2. Since vouchers are not mentioned, that means they’re allowed. Try again.

  2. I read your piece in America the other day, Stephanie. It was excellent.

    It seems that sum would rather subvert the American idea of ‘religious liberty’ for the European bastardized ‘freedom of worship’. Disturbing times

    1. Thanks, I really appreciate that.

  3. Ministerial exception = stone-age institutions get to keep their stone-age rules because otherwise they wouldn’t be pointless and ridiculous enough to qualify as what they are.

    1. Yes, because allowing the government to dictate your conscience for you is ‘enlightened’. Progressives are the most reactionary people in the West

      1. What if my conscience says I should murder children? Should government get to interfere with it then?

        1. I don’t know, do you still defend abortion?

          1. z i n g

        2. Dude. How many times do I have to teach you how religious exemptions work in this country?

          For the millionth time, RFRA (which is codified law of the preexisting ‘Sherbert Test’) states that the government must accommodate a person’s deeply held belief if the government lacks a ‘compelling interest’ for a statute.

          The government has a compelling interest in outlawing murder.

          Have reactionaries like you ever wondered why the US has one of the most religiously diverse populations in the world that peacefully coexist? This is unusual in comparison to the rest of the world. Could the reason be that the US recognizes and accommodates the religious beliefs of religious minorities? Thereby, eliminated the threat of a majority religion imposing its will on a minority religion?

          You are such a reactionary. Typical prog

          1. The proper answer wakawaka is that Your right can’t trump another persons right. You can not compel someone to do something if it infringes one of their rights.

            You can’t murder someone because it infringes all their natural rights.

            Just like you can’t force someone to make a cake because it infringes their natural rights.

            Just like you can not steal someones property because it infringes someones natural rights.

            You can not compel someone to do something if it affects one of their rights.

            1. That’s the ideal, anyway. Not the state of the law in the US, unfortunately. If it really worked that way, we wouldn’t need special rules for religious stuff.

              1. Special interests has created this. My friend wants me to watch this but i made it 5 mins in before i said this guy is an idiot. He claims rights are wrong because people make up fake rights….holy shit….how retarded can you be.

                https://www.youtube.com/watch?v=vQYRM6jAvnI

                1. yea…made it 5 mins in and turned it off. The logical fallacies is nuts.

            2. But what about when a religious employer infringes on my right to equal access to insurance?

              1. Another reason to decouple health insurance from employment. See, wasn’t that easy?

                1. OK, who’s socking Tony? We have two of them here.

                2. health insurance was never coupled to employment. You could always buy your own private insurance. Tony’s post isn’t even relevant…dont feed the trolls.

              2. But what about when a religious employer infringes on my right to equal access to insurance?

                You have no right to a good or service from another person. You have no right to their capital or labor. To insist you do is theft and slavery.

                Are they sending men with guns after you to prevent you from purchasing insurance from others? No? Then they aren’t infringing on your right.

              3. You don’t have an equal right to anything that has to be provided by another person. The only possible equal rights are those that require you to do nothing … literally. Simply do not infringe on another’s right.

        3. Almost every great religion of the world – with one glaring exception – has prohibitions against murdering anyone. Yet you liberals go out of your way to defend and justify that religion. How come?

          1. Well, there is that line about not suffering a witch to live … and a few others.

    2. It also applies to Bronze age and Iron age institutions.

    3. So a private entity must keep an employee who refuses to do their job properly, or is that just for reasons you like?

  4. The economy is not the only thing that can’t be centrally planned by Top. Men.

  5. “If something that was constitutional yesterday can be unconstitutional today, it is impossible to predict what might happen tomorrow.” Likewise, if something that counted as free exercise yesterday can be fair game for government regulation today, our constitutional protections mean very little in the end.

    I mean, technically speaking, the Dred Scott decision is still “settled law”. So is Korematsu v. United States. So it’s either “settled law” that imprisonment without trial and slavery is theoretically possible, or that the “constitution” can change it’s meaning tomorrow.

    So either way you look at it, this statement is right.

    1. In the case of Dred Scott, the constitution did actually change in content (13th and 14th amendments), so that’s a poor example. The meaning didn’t change, the text changed.

      1. But, the logic didn’t, and it’s still “settled law”. Either find a way around those amendments or repeal them, and Dred Scott should still apply, that is, if the government actually cared about logical consistency.

        But, as we all know, “settled law” only applies when it protects governmental power, never when it protects individual liberty.

        1. Seems a bit odd to call something “settled law” when it is contrary to what the actual law says.

          1. Pretty much every case of “settled law” is contrary to the Constitution. Once again, Korematsu, Wickard v. Filburn, Plessy v. Ferguson, United Sates v. Miller…

        2. When the Constitution itself is amended, any precedents based on how it was previously are gone.

  6. Fratello’s attorney should be horse whipped for even making that frankly totalitarian argument that “democracy’s need” can prevent a private school from teaching its students a philosophy the state does not approve of.

  7. A religion is just a set of beliefs. So why is something not OK to do, but hey it’s ok if I say it’s for religion. If you can do it in the name of your religion, I can do it because I want to, period.

    1. Yes, that is how it should be. You can’t have real religious freedom unless you have general freedom. If it’s wrong to stop a member of a particular religion from doing something, then it’s wrong to stop anyone from doing that thing.

      I don’t really oppose special exemptions for religious practice, but I don’t think it’s a very good thing either. The principle should be that if a law violates anyone’s rights, it should not apply to anyone. If a law violates first amendment religious protections, then the law should be invalidated, not have special exemptions carved out for the religious. Sincere believe shouldn’t come into it at all.

      1. Yep

        – Evangelical Christian

    2. The “ministerial exception” allows a religious organization not to hire or to fire a non-member. That seems reasonable at first look. But I don’t think that the American Humanist Association qualifies as a religion, so they don’t have the same freedom. This is wrong. Nonbelievers are not equal to others before the law. esteve7 is right.

    3. Yes. Yes Yes yes yes.

      This kind of debate pisses me off beyond words. “All animals are equal. But some animals are more equal than others.”

      As Zeb says, if a law violates first amendment protections, then it should be invalidated. Full Fucking Stop.

      If someone’s Christian/Muslim/Jewish beliefs allow some exception to a law, then my completely non-religious beliefs should also allow the same exception. Equal Protection Under Law and all that crazy shit.

  8. I’m superstitious. Therefore, I deserve an exemption from the thug-state extortion and protection racket.

  9. The chief threat to religious freedom in the US is that the dominant religion (Progressivism) is not legally defined as a religion, and thus is immune to separation of church and state claims and has no investment in protecting freedom of religion for other faiths.

  10. “If something that was constitutional yesterday can be unconstitutional today, it is impossible to predict what might happen tomorrow.”

    Well, “yesterday” Congress had the constitutional authority to forbid corporations to make political campaign contributions. “Today”–post Citizens United–it does not. If the Supreme Court were populated by Damon Root clones, all sorts of things that are constitutional today would become unconstitutional tomorrow. The Constitution says what the Supreme Court says it says. That will be true, yesterday, today, and tomorrow.

  11. On the other hand, what is the justification for a ministerial exception, allowing the Catholic Church to discriminate against women, but not allowing a Catholic businessman to discriminate against women?

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