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Hosanna Hearing Wednesday - A Non-Lawyer's POV E-mail
Written by Don Byrd   
Tuesday, 04 October 2011

Tomorrow, the U.S. Supreme Court will hold hearings in what could be a very important church-state case regarding religious organizations and employment laws. For those of you just tuning in to the discussion, and concerned about this topic, I thought a brief non-lawyer perspective on the case and how I understand the BJC's position might be helpful.

As a Baptist, I am of course committed to the cause of church-state separation, the best way to achieve true religious liberty and soul freedom for all. But I am also no fan of discrimination! I support strongly the non-discrimination provisions of the Civil Rights Act, which prohibit employers from hiring and firing based upon race, religion and sex. (It's 2011 - who's against that, right?) On the other hand, I also understand the reasons behind the "ministerial exception," which protects religious institutions from those provisions when it comes to employment decisions related to positions of religious function. The government's employment rules should not interfere with a church's right to select its own ministers, whatever the basis. That insulation is key to preserving the all-important umbrella principle of church-state separation.

So, what about the case tomorrow, Hosanna-Tabor? Here, the issue is not employment of the head of the church (that would be an easy one: government, stay out of it). This dispute revolves around a religious school's employment of a teacher who instructs students mostly (but not solely) in secular subjects.  Does the "ministerial exception" protect the school in this case as well? Should it? One of the important outcomes of this case will likely be a definition of the boundaries of this exception, as indicated by the question accepted by the Supreme Court in taking the case:

Whether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship.

The Baptist Joint Committee has filed an important brief in this case (cited in yesterday's USAToday coverage of the case) arguing that the ministerial exception should and does protect the religious school from charges of discrimination by the teacher. Her role at the school was not that of head minister, or primary religious instructor, but we still don't want the government telling the religious school how to fill or vacate her position. The reason why boils down to this principle: it's not the court's place to make such decisions. 

Even if a court *believes* it is judging an employment decision solely on a secular basis, it may easily be mistaken. The BJC brief says: 

Indeed, questions that might seem facially nonreligious take on a religious coloration in a dispute between a religious organization and one of its ministers.
This case exemplifies how theological or religious issues are almost impossible to avoid in cases involving employees with spiritual duties... 

Ultimately, the church congregation terminated Perich‘s commission because, given her behavior surrounding the request to return, it had lost confidence in her ability to represent the school‘s purposes to children... [I]t is up to the Church, not a jury or judge, to decide whether she could be effective.

It's not enough to say that courts should not interfere in important positions of religious leadership; this case poses a more fundamental question: shouldn't courts also stay out of the business of deciding which positions constitute those important roles of religious leadership in the first place? The same reasons that support an obvious answer of yes to the first question, also support an answer of yes to the second. "What is religious?" can be a religious question itself.

As the BJC brief helpfully argues:

The exception should be defined broadly, with presumptive deference to the organization‘s understanding of an employee as a religious leader or teacher.

Religions don't just have different beliefs. They think differently about those beliefs, organize them differently into institutions, and understand the roles of those institutions differently. And that's just a start. Unraveling that maze of distinctions isn't just impossible for a court to manage, it's inappropriate for a court to undertake in a country committed to the separation of church and state.

I do want to throw in a couple of side-notes/caveats to this discussion that seem important to me:

First, the question raised by this case should not be confused with another religious discrimination situation we talk a lot about here: when employment positions are supported by taxpayer funds! Government's faith-based funding initiatives should not be used to advance religion, nor used to discriminate based upon religion in hiring. The BJC has always been resolutely opposed to the use of taxpayer money to fund positions subject to religious discrimination, and has continued to call on the Obama Administration to clarify and update its constitutional safeguards to guarantee that religious discrimination is never federally funded.

Second, the exception - like all accommodations designed to preserve religious freedom - is a trust that should not be abused. The freedom to make certain employment decisions without government interference leaves intact the moral obligation to act honorably, to treat employees honestly, and to make religious decisions based upon true religious beliefs. Support for a broad definition of the ministerial exception should not imply support for a broad license to discriminate with impunity. It merely stands for the proposition that sound judgment in such cases can only fall under the responsibility of the religious institution itself, as it is not proper for our courts.

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