A Lack of Persecution

The current meme among conservative Christians – both Catholic and protestant – is that their religious liberty is being threatened by the Obama administration. Russel Shaw, a Catholic columnist here at Patheos, recently posted a column with the title The Persecution of Religion Has Begun. Shaw writes:

Currently, too, the Supreme Court, having heard oral arguments, is mulling a case involving a teacher in a Missouri Synod Lutheran school who claims her rights were violated because she lost her job after getting sick. At the heart of the dispute is whether the government or the church gets to decide who is and isn’t a “minister” of religion.

From another perspective the heart of the dispute is whether or not the Americans with Disabilities Act applies to churches as it does all other organizations, or whether there is a “ministerial exception.” There’s also the question of whether or not the teacher, whose duties were primarily secular, was nevertheless beyond the reach of secular law because the school considered her position religious in nature.

But this is beside the main point. According to Shaw:

During oral argument, the attorney representing the Obama administration said in effect that government could compel the Catholic Church to ordain women priests if it reached the point of wanting to do that in the name of enforcing anti-discrimination laws. Never mind the First Amendment.

That claim has gone around. Shaw has also written for organizations like the Catholic News Agency, saying much the same thing. What’s odd is that Winnifred Fallers Sullivan at The Immanent Frame tells the exact opposite story,

One of the striking aspects of the argument last week was the extent to which, although there was much discussion of the difficulty and unavoidability for the courts of defining who is a minister, both the lawyers and the justices accepted as the limiting case the Catholic Church and its restriction of priestly ordination to men. It seemed for many present that whatever rule was arrived at had at the very least to preserve the Catholic Church from being forced to accept women into the priesthood. Even the lawyer for the government, the deputy solicitor general, kept backing off from a strong assertion that churches must be subject to law respecting retaliation to the same extent as other private associations as soon as she was pressed to consider the Catholic case.

Sullivan backs this up by citing a number of exchanges between the Justices and the government lawyers directly from the transcript (PDF). Here’s one example:

JUSTICE BREYER: So the fact if they want to choose to the priest, you could go to the Catholic Church and say they have to be women. I mean, you couldn’t say that. That’s obvious. So how are you distinguishing this?

MS. KRUGER: Right. We think that both the private and public interests are very different in the two scenarios. The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.

This is Leondra R. Kruger, Assistant to the Solicitor General, in Shaw’s words the “attorney representing the Obama administration.” As Sullivan points out, she is arguing against the idea that the Government could step in and tell the Catholic Church who to hire and fire. Sullivan goes on to argue that there are some important arguments that the Church has at its disposal that would prevent such a thing from happening. So the handwringing here seems to be both misguided and misinformed.

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