New York Times needed more liberal clergy

clerical attireLegislators must go crazy, whenever they enter the arena of church-state law, trying to write laws that protect the innocent without creating legal sanctuaries in which the demons of fraud and corruption have even more room to dance.

After all, the First Amendment makes it clear that the government is supposed to give religious expression and practice every benefit of almost every doubt.

What do I mean? Let’s say that you have, as Exhibit A, Father Frank of the Roman Catholic Church and your goal is to protect his rights as a clergyman. Don’t focus on issues of taxes and property at the moment. Let’s just say, to consider an issue that has played a major role in church-state law, that you want to protect his right to hear the confessions of undocumented workers without having to worry about government officials bugging him about what he’s hearing.

Now, try to write a law that protects all the rights of Father Frank, yet somehow allows government officials to crack down on the shady activities of our Exhibit B. This is Father Not-So-Frank, who, via a mail-order-bishop, has become a priest in a tiny splinter church that insists it is just as valid as the Vatican. Let’s call it the Eastern Old Catholic Liberal Orthodox Communion of the Utrecht Empire or something like that.

Trust me, these churches are out there.

Our Father Not-So-Frank is a full-time mail man and, next month, he’ll compete his advanced online training and become a bishop. Then he’ll start cashing checks and ordaining priests of his own, at his split-level cathedral and parsonage in suburban Oklahoma City.

Now, how does the U.S. Congress pass a law against what this man is doing without hurting the “real” — sorry for the scare quotes — priest? By the way, while I am at it, do counselors in the Church of Scientology have the same rights? What if they refuse to discuss the dollars and cents of their work?

You probably know where I am going with this. I’m working my way around to Part II of reporter Diana B. Henriques‘ massive In God’s Name investigative series in the New York Times. This is the installment titled “Where Faith Abides, Employees Have Few Rights.”

Here is the big news in this story, the good news and the bad news. The good news is that religious groups are free to pick their own leaders and they have the legal right to ordain, hire and fire people based on whether they believe the doctrines of the particular religious group doing the ordaining, hiring and firing. What’s the bad news? It’s pretty much the same as the good news, because this opens the door for Father Not-So-Frank as well as allowing Father Frank and his superiors to do their thing with as little government interference as possible.

The bottom line: There is no way to force religious groups to be democracies.

The pope does not have to be an equal opportunity employer. Neither do all those independent Baptist churches that dot the street corners in Everytown, Texas. Neither does the InterVarsity Christian Fellowship at Harvard University. It is OK if your local Orthodox synagogue refuses to hire a Assemblies of God pastor or, for that matter, a Reform rabbi. The same thing goes for the people who teach in these religious bodies’ schools, answer their telephones and do all kinds of other tasks in these voluntary religious associations.

I am pretty sure that Henriques knows this. It is not as clear that she realizes that it is hard to protect this constitutional right for the angels without making life easier for the people that some of us consider demons. She does know about the laws that are on the books:

The most sweeping of these judicial protections … is called the ministerial exception. Judges have been applying this exception, sometimes called the church autonomy doctrine, to religious employment disputes for more than 100 years. As a rule, state and federal judges will handle any lawsuit that is filed in the right place in an appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith. Citing the protections of the First Amendment, they have ruled with great consistency that congregations cannot fully express their faith and exercise their religious freedom unless they are free to select their own spiritual leaders without any interference from government agencies or second-guessing by the courts.

To do otherwise would be an intolerable government intrusion into employment relationships that courts have called “the lifeblood” of religious life and the bedrock of religious liberty, explained Edward R. McNicholas, co-chairman of the national religious institutions practice in the Washington, D.C., office of Sidley Austin, a law firm with some of the country’s largest religious organizations among its clients.

Yes, judges and legislators are not supposed to get entangled in doctrine, which makes it pretty easy for some religious leaders to wave the doctrine flag and do all kinds of mean and even sinful things.

color rainbow12So what can the state do? Long ago, when I was doing my graduate work in church-state studies, I remember something one of my professors said. When push comes to shove and it comes time for the government to try to decide what is good religion and what is fake religion, just about the only things the cops can probe are profit, fraud and threat to life and safety. Other than that, religious groups are pretty much free to do their things.

I could go on and on, but let me make two final points.

Here is another crucial statement in this part of the Times package:

Religious employers have long been shielded from all complaints of religious discrimination by an exemption that was built into the Civil Rights Act of 1964 and expanded in 1972. That historic exemption allows them to give preference in hiring to candidates who share their faith. In recent years, some judges have also refused to interfere when religious groups have dismissed lesbians, unwed mothers and adulterous couples, even if they profess the same faith, because they have violated their employers’ religious codes.

Right. But Henriques really needed to add a few more words to that last sentence. It really should end by saying, “because they have violated the doctrinal and moral covenants that they signed of their own free will on the day they took their jobs.”

In other words, a Wiccan mega-coven — should one ever exist — has a right to dismiss its lesbian priestess if she decides to get married and become a Southern Baptist. A mosque can dismiss the leader of its preschool if he converts to Judaism and starts telling all the children about the glories of Israel. Focus on the Family can dismiss someone who has an affair. Or they can choose not to do so, if the leaders of the ministry believe the man or woman has repented.

That’s called “freedom of association.” It’s a pretty important concept. Someone at the Times needs to look that up.

However, it is clear that Henriques is aware that the same laws that protect conservative groups protect liberal religious groups. She even knows that some of our most important recent laws protecting religious liberty were passed with the help of the Clinton White House and super-broad coalitions of religious leaders that ranged from the Eagle Forum to the ACLU, from the National Council of Churches to the National Association of Evangelicals, from the Southern Baptists to the Episcopalians. On these issues, Pat Robertson was dancing with Bill Clinton (although it isn’t nice to dwell on that image).

So let me end there. What do I think Henriques should have done to improve and balance this story? She needed to talk to more clergy and experts on the religious left.

And almost all the church-state lawyers said: Amen.

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About tmatt

Terry Mattingly directs the Washington Journalism Center at the Council for Christian Colleges and Universities. He writes a weekly column for the Universal Syndicate.

  • http://www.ecben.net Will

    I am well acquainted with the Liberal Catholic congregation referred to in the linked polemic piece, and I can assure you there is nothing the least shady about them– and that when Bishop Wedgewood designed the liturgy, he know what he was doing far better than “mainline” liturgical revisionists, who leave me muttering “They don’t understand the basics of … MAGIC!” I nearly landed in the LCC, but did not want to belong to a church whose standards were so low that they would let me in.

    Also, characterizing the LCC, which if I remember is more than a hundred years old, as a “splinter” group leaves the impression that it is Just Another of those new-fangled groups going into schism so they can ordain women and ignore any moral judgements on “pelvic” issues. It is, pretty much, an ecclesiastical offshoot of Theosophy, which hived off from a half-baked British Old Catholic group, not from “Rome”. (Does that make the Anthroposophists in the Christian Community “splinter splinter Catholics”?)

  • http://www.tmatt.net tmatt

    WILL:

    There are thousands of groups that, in one small way or another, fit into this “splinter” world. I did not intend to single that one out, other than to show an example of a controversial group.

    There are sites that list URLS for dozens or hundreds of these Catholic and Orthodox splinters. I couldn’t find one in my searches tonight.

    Anyone happen to know those list URLs?

  • Michael

    The heart of the ministerial exception is the term “ministerial.” is a social worker a minister? How about an organist? Or a secretary or a janitor? What if the dispute between the employee and employer isn’t religious at all, but the employer is merely using the exception as a wall to hide behind.

    These are where the disputes over the ministerial are. No one questions whether a church should hire whatever minister they want, the question is whether they should be able to fire the secretary or social worker who has no ministerial responsibilities.

    BTW, people challenge loyalty oaths, noncompete agreements and employment contracts all the time. Usually, an employer who violates federal law breaches the employment contract and employees can’t waive their right to protection under federal or state law.

  • http://www.tmatt.net tmatt

    Michael:

    As I am sure you know, defining who is and who is not recognized as a “minister” is a doctrinal issue that courts have hesitated to answer.

    Also, the employees sign or choose not to sign covenants for the whole community. Same for students at religious schools in almost all faiths.

    This is not a loyalty oath issue. You need to read up on the church-state laws. They protect left and right.

  • Michael

    I write quite a bit about the ministerial exception in employment, so I don’t need to read up on church-state law. As the NYT pointed out, courts have been reluctant–as they should be–in applying employment laws to clearly ministerial employees. Even tangentially ministerial employees like second grade teachers and organists are considered ministers.

    The question is whether an employee at the church amusement park, the social worker at a government-funded counseling program, or the janitor and secretary should be included.

    Yes, employees can require everyone from the minister to the janitor to sign an agreement saying they will abide by the often-vague “faith statement” of the employer. The question in the courts is whether those are enforceable or whetehr the employer breached the agreement.

    I agree they protect left and right. All ministerial exception cases do. The vagueries and uncertainties, however, generally come from cases involving conservative religious groups since it has historically been conservative religious employers who have pushed the envelope on the exception.

    The law is changing and it’s quite possible that a ministerial exception employment case could make it to the Supreme Court this term or next.

  • http://www.geocities.com/hohjohn John L. Hoh, Jr.

    First, LOVE that Unitarian stole in the picture!

    I think the NYT article just wanted to slam main-stream, conservative faith. Methinks liberal groups aren’t hung up on theology and morality as they are in making social statements. How else can one explain their depicting Jesus as social savior rather than spiritual savior?

    As for the government not intruding on “minister-parishioner privacy,” there actually are limits. If a parishioner states any desire to harm self or others, by law (at least in Wisconsin, but I suspect in much if not all the nation) the pastor is bound to notify the authorities under penalty of law. Being seminary-trained but not ordained, I’m not sure where I would actually stand as far as liability on this issue.

    As for who would be considered a “minister” under the law, maybe if the specific wording of said statute or whatever were shared on this forum, we might get an idea of what the law sees as a “minister” or how broad a lattitude the church has in hiring/firing issues.

  • http://www.oldsolar.com/currentblog.php Rick Ritchie

    I can’t believe you’re willing to dignify the Eastern Old Catholic Liberal Orthodox Communion of the Utrecht Empire like that after they broke away from us, the Eastern Old Catholic Broad Orthodox Communion of the Utrecht Empire. Splitters!

  • Larry Rasczak

    “Now, how does the U.S. Congress pass a law against what this man is doing without hurting the “real” — sorry for the scare quotes — priest? ”

    Lets consider a more important question…

    WHY does the U.S. Congress NEED TO pass a law against what this man is doing without hurting the “real” — sorry for the scare quotes — priest?

    In their endless hunt for enough copy to fill the space between bra ads the media has inflated everything from the fat content of Fettuchini Alfredo to the drunken rantings of Conservative movie stars into national crises of near nuclear proportion; things in need of IMMEDIATE Federal acton!!

    Lets take a deep breath and step back from the high speed stupidity that passes for a news cycle here.

    What y’all have lost sight of is that we, as Humans with God given rights. As Americans are PRESUMED to have the right to do what we want, as long as it does not directly impact the rights or well being of another. The whole idea of the AMERICAN version of the Social Contract is that we start out free and WE give the State permission to limit our freedom IF the State can show us it has a good reason to do so. Europeans (and the NYT) seem to think that we start out as slaves or serf and are granted what rights we enjoy through the kindness of the great nanny State.

    So Father Not-So-Frank may be scamming the IRS. I’m sure that the monetary loss to the treasury is almost enough to keep the Republic going for all of a millisecond, maybe even two. I don’t think the Union is going to come apart at the seems if we let him get away with it. Why I’d say he is doing far LESS damage to our Republic than someone who scammed their draft board so as to avoid going to Vietnam. (Not that anyone at the NYT would know anything about that….)

    IT seems to me that keeping the First Amendment in tact is far more important than “cracking down” on the occasional Father Not-So-Frank.

    The NYT is advocating that we cut off our face to spite their nose.

  • Larry Rasczak

    tmatt says “You need to read up on the church-state laws. They protect left and right.”

    Ah! but you are assuming that the Left goes to Church. The data from the polls I’ve seen indicates otherwise.

    Sure you find the odd Democratic Episcopalian or Maryknoll nun out there, but the “Christian Left” is not just a minority of Christians, it is a minority of the Left as well.

    So if the majority of people on the political right DO go to Church and DON’T read the NYT, and a majority of people of the political left DON’T go to Church and DO read the NYT…well increased Federal Regulation of Churches is obviously the only solution! Four legs good, two legs bad! Four legs good! Two Legs Bad!

  • MattK

    My mother used to direct a church-sponsored school. One day a woman applied for a job as a teacher and on the application said she was not a Christian. When my mom explained that the school only hired Christians the woman said she was going to sue the school. And she did. All the lawyer did was file a motion to have the case dismissed, which it was. Now, that was a teacher possition, so it, obviously, is a ministerial position. But I’ve often wondered if the suit would have been dismissed so easily if the woman had applied to be a cook or a janitor.

  • http://www.tmatt.net tmatt

    LARRY:

    The Religious Left is still there and is very large, it is part of the anti-Evangelical Voter coalition with the rising number of American secularists.

    Please check out this excellent article by Waldman and Green in The Atlantic:

    http://www.theatlantic.com/doc/prem/200601/tribal-relations

  • Harris

    What tmatt elides over is the page one picture, and the lead off story. It’s not about a minister, but the dismissing of a nun because she has cancer. her vocation is ended because the order cannot afford the cost. In secular law this dismissal would most certainly be an item for a law suit.

    So the question is to what degree a religious organization, a constitutionally privileged one, if you will, may also be free from the demands of justice? How free from employment law (and other regulatory activities) are religious entities?

    Now here’s my hunch, what we have is a confluence of a more religiously-favorable administration and the practice of the same administeration to appoint business-favorable judges (See the earlier coverage in the NYT of the Ohio Supreme Court). Judges skeptical about labor rights, positive about religous ffreedom — well, that could result in some interesting outcomes.

    Fwiw, of the articles, this was the most interesting and I think, most newsworthy.

  • Emily

    “what we have is a confluence of a more religiously-favorable administration and the practice of the same administeration to appoint business-favorable judges (See the earlier coverage in the NYT of the Ohio Supreme Court)”

    The Ohio Supreme Court is elected. That’s not to say that the justices don’t have their problems — I’m an Ohioan, and I know they do — but they are not appointed to judicial by anyone in any governmental administration. The voters of the state of Ohio choose them.

  • Emily

    err, appointed to judicial office.

    Left out a word.

  • http://www.arlinghaus.typepad.com bearing

    Now, how does the U.S. Congress pass a law against what this man is doing …

    I’m confused. What are the “shady activities” that this Father Not-so-frank is doing that need to have a law passed against them? You didn’t mention any specifics about him, unlike your specific example about Father Frank (he wants to hear the confessions of illegal immigrants without the feds bugging him).

    It’d be a lot easier to imagine writing the law if we knew what it was you’re trying to outlaw…

  • http://www.tmatt.net tmatt

    HARRIS:

    Tragic case, no doubt about it. I stressed that it is almost impossible to protect the majority without creating laws that have room for abuse and tragedy.

    But how would you legislate to control that case?

    And a nun is, of course, under vows and an employee in a doctrinally defined religious community.

  • Maureen

    Becoming seriously ill, losing a limb, etc. during any novitiate is generally considered a sign that God has not called you to that order. This is an important point in many biographies of sickly saints.

  • Larry Rasczak

    Sorry, but the article is only available to people who are Atlantic Monthly subscribers. Perhaps I will go visit the library this weekend.

    You would know far more than I about this Tmatt, but I was thinking of the numbers that split out DEM/REP voting by how often people actually go to church.

    Now I’ll admit to some definitional snobbery here. Personally I don’t consider anyone who only goes to church “occasionally” or “once or twice a year” to actually BE Christian. Real Christianity requires a real commitment, and without the commitment you just aren’t there.

    In my book that is sort of like someone who goes jogging “occasionally” or “once or twice a year” or “on special occasions” claiming to be an athlete. They may watch a lot of sports, they may talk about sports, they may have strong opinons about sports, they may even have an expensive gym mebership, but if they spend more time in the recliner than the gym they aren’t an athlete. As Linda Greenhouse would say “that’s simply a fact”.

    So when it comes to the “Christian Left” you and I may have a different definiton of “Christian” here. I’ve know a number of good, genuine, and sincere Christians who are devoted to their Church and who feed the homeless and give of their time, tallent, and treasure and who are Democrats; but I’ve also seen a large number of leftists who’s Christianity extends to dressing up their pre-exisitng leftist cause in Christian clothing. I would include the first group in the “Christian Left”, but not the second.

  • http://www.ecben.net Will

    Larry, as Buckley remarked “governmental expansion is a form of eating for politicians”.

    We are immersed in a mindset which holds that TheGovernment has a responsibility to Do Something about any problem, real or imagined. (Like putting soldiers with assault weapons on routine duty in commuter rail stations, or doing “random” bag searches on the subway.) To politicians, Doing Something means “pass a law”. They simply can not imagine that NOT passaing a law could ever be the right thing to do (and they can not send out constituent mail bragging about all the stupid laws they did NOT sponsor.)

  • Dennis Colby

    Terry,

    If you’re still looking for URLs to portals leading to all kinds of Catholic splinter groups, here’s a couple. The second is a little more comprehensive.

    http://www.neiu.edu/~history/web.htm

    http://www.ind-movement.org/

  • Harris

    Emily is right about the judges of Ohio being elected, what the article highlighted was the remarkable linkage between donations to these judges and the judicial outcomes. Here in MI it is somewhat more muted but the same pro-business stance nonetheless prevails.

    TMATT — what law would I recommend? I’m not sure it is a law so much as it is a judicial decision that comes in response to some egregious wrong. Some wiser heads in the faith community might spell out some general standards as to employee rights. Such standards would at least give prospective boundary when/if ministry and labor law collide.

    And as to the noviate — looking from the Protestant outside, she seems to bear all financial risk of her decision. This asymmetry of the matter suggests that some set of standards or expectations be articulated, at the very least.

  • http://www.arlinghaus.typepad.com bearing

    If I read it correctly, the dismissed “nun” was actually a novice. Hadn’t taken vows yet. The commitment wasn’t finalized. So the community didn’t owe her allegiance yet, so to speak, as she didn’t owe any to them.

    It’s like someone who’s engaged deciding not to go through with the wedding — not the same as a divorce.

  • Larry Rasczak

    Will,

    You are SO right. Especially in regards to the impositions of “solutions’ that are poorly thought out, of dubious effectiveness, but highly visible and very photogenic. The idea of “first do no harm” seems to have escaped our legislatures.

    Back to the point, I don’t think there is ANY law here that would not do far far more harm than good.

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