Faith in History
Is the "War on Religion" a Myth?
I would disagree, however, with Sessions and others who point to Hosanna-Tabor and say that it proves all is well with religious liberty here. Concerns about religious liberty in America are not hysterical. To demonstrate this, all you have to do is look at the radical position taken by the Obama Department of Justice in Hosanna-Tabor. Normally, lawyers before the Supreme Court lean heavily on precedent, but the DOJ in Hosanna-Tabor argued for a sharp departure from precedent. The DOJ recommended that the court abandon the notion of a "ministerial exception" entirely, or that they restrict it to employees whose duties are "exclusively religious." Under that rule, Cheryl Perich would not have counted as a ministerial employee, even though she was called to her position by the congregation, she prayed daily with students, and she taught religion, among other subjects. Indeed, the DOJ was setting a standard almost no religious employee would meet—even pastors and rabbis have to take care of mundane tasks like paying the bills!
DOJ lawyers may have hoped that Hosanna-Tabor would become a wedge case, establishing a new precedent that would allow the government eventually to require faith congregations to comply with contemporary norms of fairness with regard to issues such as gender and sexual behavior. That's why such a stunning array of religions, from evangelicals to Hare Krishnas, filed amicus briefs for the church.
Deep concern about this case was not hysteria. Had the court embraced the DOJ's position, it would have represented a major attack on religious groups' freedom from government interference. Nine justices stood in the way of this happening, and thankfully, the system worked. Even President Obama's appointed judges (much to their credit) saw the wildly overextended nature of the DOJ's position. They realized that a decision against the Hosanna-Tabor church could have helped turn "free exercise of religion" into "free exercise of religion, pending government approval."
Thomas S. Kidd teaches history and is a Senior Fellow at Baylor University's Institute for Studies of Religion. He is the author of Patrick Henry: First Among Patriots and God of Liberty: A Religious History of the American Revolution. Follow his writings via Facebook and Twitter.