Thoughts on the Hosanna-Tabor decision

January 18, 2012

Last week the Supreme Court unanimously decided that a “ministerial exemption rooted in the First Amendment” protected a church school against a claim of discrimination by an employee classified as a “called teacher” and “commissioned Minister of Religion.” Commentary on the decision has been generally favorable; liberals have been happy to point to it as evidence that there is no “war against religion” going on as alleged by a number of religious and political conservatives.

The teacher in question claimed to have been fired in retaliation for threatening to invoke the Americans with Disabilities Act rather than relying on the internal procedures her church requires. Her duties had involved teaching religion as well as secular subjects, and leading her students in daily prayer; she argued however that the school also hired lay teachers to perform the same functions (though only when a called teacher like herself was unavailable). This had been enough to persuade a lower court to allow her suit;  the Supreme Court overruled that decision.

All authorities seem agreed that there is a ministerial exemption; the question was how broadly it extends. A church obviously has to be free to choose and dismiss its own priests, pastors etc in accordance with its own principles, or freedom of religion is seriously impaired. On the other hand an electrician or house-painter employed (or seeking employment) by a church probably should have the same rights as one employed (or seeking employment) by anyone else. The present case clearly fell somewhere between. Given the religious nature of at least some of plaintiff’s duties, the Court’s decision makes sense; so does the Court’s reluctance to draw a clear line for future cases. (In concurring opinions, Justice Thomas suggested that churches should be able to decide for themselves who is a “minister” under the exemption – raising the specter of “called janitors;” while Justices Alito and Kagan more sensibly prefer looking at the functions served by an employee regardless of whether the word “minister” or any special “ordination” procedure is used. – But then the Courts would have to decide just what functions specifically count as “religious.”)

I remember once reading a discussion (on some site or listserve) among Missouri Synod Lutherans – the very denomination to which Hosanna-Tabor belongs – regarding the propriety of the modern tendency to label all sorts of church functions “ministries.” Some felt that this was in derogation of the importance of the pastoral office. On the other hand legal considerations were part of the mix also, a desire to immunize the church as much as possible against government intrusion.

Anyway, as I’ve said, given the facts of the case I am inclined to agree with the Court’s decision.

At the same time, it is a long-standing thought-experiment of mine – nothing more, I recognize the historical and cultural reasons why it would never be tried in reality – to try to imagine how we could get all the results we really want from the 1st Amendment without using the word “religion” at all. It has always seemed to me that the abuses we look to the religion clauses to prevent could be dealt with just as well under freedom of speech, press, association, equal protection, and the right to privacy. And what exactly makes an “establishment regarding religion” any worse than an official establishment regarding some secular political party or ideology, such as we have seen in the last century in the Communist countries for instance? My intent is not to restrict “freedom of religion” but to extend exactly the same freedom to activities and motivations we consider “secular.”

So how does this notion of mine apply to the Hosanna-Tabor case? Easily enough, I think. Instead of a “ministerial exemption,” why not just say that whenever people form an organization to promote any cause, they have to be allowed sufficient discretion to make sure their leaders and spokespeople are committed to sincerely representing it? PETA should be free in its employment practices, at least regarding leadership positions, to discriminate against carnivores and fur-wearers! How, I wonder, is this different from a church having the right to demand that its ministers be true exemplars of their faith?

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