The recent Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C. once again has me wondering if the Court is anything more than a tool of the Christian Right. The unanimous ruling essentially gives religious organizations and churches the unrestrained right to indiscriminately fire and discriminate against anyone in their employment without any legal recourse for the victims.
According to the Tabor ruling, religious groups get a pass on the law when it comes to employees who are considered “ministerial.” The right to the free exercise of religion says the court, entails a right to hire and fire those who lead a religious group without government interference. Because the court refuses to define just who may count as “ministerial”—and the case in fact involves a schoolteacher who taught mostly secular subjects—the decision effectively grants religious groups a degree of power over their employees that no other group can claim. By failing to specify to whom and in what circumstances the “ministerial exception” applies, the decision seems to open the door to its misuse.
I have no problem with a church being unencumbered by the government in decisions concerning ministers, but in matters of personnel outside of that, churches should have to abide by the same employment rules any secular organization. If a church’s employees are subject to the same taxes as secular workers then they should also benefit from the same protections.
Under our Constitution, religion is something special, something that is and ought to be treated differently from every other kind of activity. I bring this up because some of the recent jurisprudence on church/state issues is based on the very opposite view: that religion is just like everything else.
In the 2001 Good News Club v. Milford Central School decision, for example, the Court decided that once a public school has opened up its facilities for use by pretty much any outside group, it cannot exclude services of worship merely because they are religious in nature. In his majority opinion, Justice Clarence Thomas argued that “it is quixotic to attempt a distinction between religious viewpoints and religious subject matter.” And since everything has a “viewpoint,” he inferred, religion is the same as everything else. Indeed, he could see “no logical difference in kind” between a religious group—such as The Good News Club, an after-school program of religious instruction for children that spends much of its time praying, singing hymns, and learning the evangelical gospel—and a soccer team.
The same logic was applied in a set of rulings that, at least for a time, required that New York City schools opened to the community after-hours should make themselves available as rent-free houses of worship. If you treat religious worship as something different than, say, student theater workshops and local running clubs, the reasoning went, then you are discriminating against religion.
The same line of thought informs the world of government-funded, faith-based social services. There is no difference between a secular nonprofit drug rehabilitation service and a faith-based one, right? Except that, as per the Hosanna-Tabor ruling, the religious one now has the right to discriminate against its own employees.
The Court is always more than accommodating on points of religious freedom but is consistently negligent on preserving the right of citizens to freedom from religion.
The First Amendment of the Constitution reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Clearly, the framers primary objective in recognizing the need for religious freedoms was freedom from religion, thus the inferior position of free exercise to that of non-establishment. The framers were products of the “Enlightenment” and strong proponents of secularism. They understood that rulers use religion as a means of control (Divine Right of Kings) and were determined to remove that element from this government.
As a side note, I have to wonder if the school in this case would have been a madrasas, if the SCOTUS would have ruled in the church’s favor.
Portions of this diary were reprinted from an editorial by Katherine Stewart in RD Magazine