Like so much from this Justice Department, Holder’s radical legal positions are at odds with long American traditions. This latest species of Holder’s radicalism is a frontal attack on faith communities.
In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. The U.S. Equal Employment Opportunity Commission, Holder’s DOJ argued that a church cannot fire an employee for acting contrary to church teaching, and contrary to an employment contract that incorporates that teaching. A teacher filed a complaint to the government about how the school handled her narcolepsy, which presumably would involve sleeping at work. The church school then fired the teacher because the church forbids lawsuits among believers based on 1 Corinthians 6:1-8. (“But instead, one brother takes another to court—and this in front of unbelievers!”)
This particular Lutheran church had well established dispute resolution mechanisms within the church, and based on church teaching. Instead, the teacher went to the government, contrary to church teaching.
Holder’s Justice Department believes that religious schools should not be able to enjoy a longstanding exemption to various employment laws which conflict with church teaching, or, the “ministerial exception.”
Assistant to the Solicitor General Leondra R. Kruger argued that the religious school could not fire the teacher for filing a complaint to the government even if church teaching forbids it. At oral argument, Kruger advocated positions so extreme that even Justice Elena Kagan appeared to reject them.
It’s not hard to see where this slippery slope slides. What if a teacher in a Catholic school does something directly contrary to Catholic teaching? Or, consider this possibility offered by American Catholic:
“Then, too, what also about Catholic women using this principle to sue the Catholic Church in the United States because they are excluded from the priesthood? There’s absolutely no doubt that when it comes to ordination, the Catholic Church discriminates in favor of males. Should SCOTUS be able to tell the Catholic Church in the United States that it must redress the imbalance?
Yes…if, as an organization, the Catholic Church is bound by federal employment discrimination statutes.
No…if, as an organization, the U.S. Catholic Church is exempt from federal employment discrimination statutes.”
Far fetched? Not to Kruger.
At oral argument, she wouldn’t categorically preclude the possibility. Instead, she told the Court that the government interest isn’t currently sufficient to justify an assault on the male priesthood. Kruger said “the government does have a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct.” In other words, even if church doctrine prohibits you from settling disputes with the church through the government, the Obama administration cares not. Holder wants informants, or as the DOJ prefers to call them, complainants.
via Rule of Law » Holder’s Quiet Court Attack on Religious Freedom.
Here are some of the blow-by-blow arguments:
Hosanna-Tabor was represented by religious-law Professor Douglas Laycock. He began by saying that EEOC violated a bedrock constitutional principle that churches do not select government leaders and government does not select church leaders.
But he had problems during oral argument. One came from Justice Anthony Kennedy (who is likely the swing vote in this case), concerned that someone suffering retaliation from a church employer couldn’t present his or her claims in court.
Laycock rebutted that substantial church interests should bar civil trials, and Kennedy objected that you can’t know if substantial interests are at stake unless someone presents them in court.
Justice Antonin Scalia came to Laycock’s rescue, saying, “I think your point is that it’s none of the business of the government to decide what the substantial interest of a church is.”
The justices then rejected the argument of Leondra Kruger, Obama’s lawyer for the EEOC, who argued that there’s no ministerial exception in the Constitution, only the same rights that secular organizations possess to choose their own affiliations.
At this, Scalia exploded. “That’s extraordinary! There, black on white in the text of the Constitution, are special protections for religion. And you say it makes no difference?”
Kagan agreed with Scalia’s rejection of the argument that the First Amendment doesn’t protect churches from government ordering who they should hire as pastor or priest.
Justice Samuel Alito (a Catholic) made a critical point, asking if a Catholic priest married and the church removed him from ministry for violating Catholic doctrine, could the EEOC order him reinstated.
When Kruger answered no, Alito replied that EEOC was making a judgment that certain teachings — such as the Catholic belief that priests must be celibate — are more important than the Lutheran doctrine that ministers cannot sue the church.
Chief Justice John Roberts (also Catholic) agreed, saying, “You’re making a judgment about how important a particular religious belief is to a church.” Government cannot make such theological judgments.
I’ve had questions about this case, but the key element is that the teacher refused to go through the church dispute resolution process and went straight to a lawsuit, despite 1 Corinthians 6:1-8 and despite what her contract said. I can see the religious liberty issues at stake, and they are important indeed.
UPDATE: The Supreme Court ruled unanimously in favor of the Lutheran school! The ruling was also broadly written so as to protect churches from other usurpations on the part of the government. Read this analysis, which hails the ruling as a landmark decision in the protection of religious liberty.
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