Can Churches Discriminate on the Basis of Religion?
Oddly enough, that's the issue in a case headed to SCOTUS next Wednesday, Hosanna-Tabor Evangelical Lutheran Church v. EEOC. The case involves a small Lutheran Church near Detroit that got sued by the EEOC for firing one of its religion teachers . . . for violating church teachings.
The legal issue is the scope of the so-called “ministerial exception,” which is a long-standing doctrine that exempts religious organizations from employment-discrimination laws, at least with respect to "ministerial employees." There was some thought that the administration would argue that the exception should not apply in this case because the teacher wasn't "ministerial" (she also taught secular subjects). But no, the Obama DOJ is arguing that the "ministerial exception" shouldn’t exist at all.
The potential consequences of the Obama/Holder position are staggering: will the EEOC sue to force the Catholic Church to ordain women? Will Obama's old friend Rev. Wright be forced to accept Jewish altarboys? You get the idea. There's a great op-ed by Hannah C. Smith of the Becket Fund for Religious Liberty, who represents the church in the Hosanna-Tabor case, spelling out the issues in greater detail. (HT: Ed Whelan, over at NRO Bench Memos).
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Apr '11
Re: Can Churches Discriminate on the Basis of Religion?
At the risk of nearing a slippery slope argument, there seem implications to this case that seem worrisome to me.
Re: Can Churches Discriminate on the Basis of Religion?
Worrisome indeed. Without the ministerial exception, I can't see any basis for churches to resist anti-discrimination suits. Since the SCOTUS decision in Employment Div. v. Smith (sadly, a Scalia decision), there is no general religious exception for "neutral laws of general application."
More broadly, free exercise of religion is one of our most endangered rights. The Obama Adminstration has dismantled "freedom of conscience" regulations (that protect healthcare workers who, eg, don't want to participate in abortions).
Jun '10
Re: Can Churches Discriminate on the Basis of Religion?
Adam,
Can you cite the cases that suggest that "freedom of conscience" has been dismantled?
Thanks,
SG
Re: Can Churches Discriminate on the Basis of Religion?
This is another indication of the tyrannical inclinations of the Obama administration.
Jun '10
Re: Can Churches Discriminate on the Basis of Religion?
After reading that op-ed I thought, "oh no, the church is at risk here because it appears their reasoning (while Biblical) will be seen as very weak by the secular culture and picked from Biblical minutia rather than a solid, foundational religious belief." But, does it matter? For many denominations, beliefs are defined by the leaders of the particular church, for other denominations, their beliefs are surprisingly fluid.
I expect to see many more infringements on religious liberties in the years to come. Well, for Christians I see more infringements, not for anyone else. All non-Christians fall into protected classes of some sort.
Edited on Sep 30, 2011 at 3:19pmFeb '11
Re: Can Churches Discriminate on the Basis of Religion?
The Obama/Holder Justice Department is a travesty. If the Republicans manage to gain control in 2012, there should be a full blown investigation.
Re: Can Churches Discriminate on the Basis of Religion?
Samwise: in cenzon-decarlo v. Mt Sinai the 2nd circuit recently held that the Church amendment (designed to protect healthcare workers who refused to participate in abortions) did not create a private right of action. So it's a dead letter. In that case a nurse was coerced to assist in a late 2nd term abortion, but the court held she had no recourse. Also, toward the end of the Bush administration, HHS enacted conscience regulations to try to fill the gap in the law. The Obamites rescinded those regs within weeks of taking office.
Mar '11
Re: Can Churches Discriminate on the Basis of Religion?
Unfortunately this is not surprising, the Obama administration is simply taking Europe as their template:
Christian Preacher arrested for saying homosexuality is a sin
There have been many such stories in the past few years, it may not be persecuting the church but various leftist authorities in Europe are approaching that.
Edited on Sep 30, 2011 at 8:20pmMay '10
Re: Can Churches Discriminate on the Basis of Religion?
I consider the Supreme Court's Free Exercise and Establishment Clause jurisprudence to be the dimmest bulb in the their chandelier. Your best shot at protecting your religious liberty is to appeal to your free speech rights, not to the First Amendment's adjacent and explicit guarantees of religious freedom. The Court has rarely - if ever - distinguished itself in this area during the last 50 years.
Mar '11
Re: Can Churches Discriminate on the Basis of Religion?
This is simply a way to destroy churches without banning them outright.