Monday, January 16, 2012

Affirmation with attendant questions.

It’s unsurprising that the religious right leaders gathered in Brenham Texas voted to endorse Rick Santorum.  Unlike Newt, whose religiosity comes off as opportunistic, and the other Rick who has shown himself unpredictable, Santorum is clearly and consistently one of them.  That said, what they perceive as his strength — an unabashed religious fervor — is precisely what makes the former senator so problematic to those of us concerned about any erosion in the Jefferson’s Wall of Separation.  Indeed Tony Perkins, President of the Family Research Council, and the gathering’s spokesman epitomizes those theocrats that would have us tear much of it down and submit to their ideas and ways.

As Republican candidates actively seek support of those who by word and action challenge it, last week the Supreme Court issued a significant, albeit narrow, ruling affirming the Establishment Clause.   At issue in Hosanna-Tabor Church v. Equal Employment Opportunity Commission was whether a religious institution, in this case a Lutheran church school, is covered by a ministerial exception in dealing with one of its employees. Hosanna-Tabor had fired Cheryl Perish a called (ordained as minister) teacher who suffered from narcolepsy rather than let her return to work.  She brought suit under The Americans with Disabilities Act.   Speaking for a unanimous Court, Chief Justice Roberts wrote: When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck a balance for us.  The church must be free to choose who will guide it on its way.

When our highest court upholds church-state separation, especially in the current political climate, we all have good reason to celebrate.  At the same time, the ministerial exception invoked and confirmed in this case seems to fly in the face of the protections embodied in the ADA, protections most of us value.  Had Ms. Perish worked for anyone else, her suit would have been judged solely on its merits — was she fired because she was ill — and nothing else.  To me, this case presents a troubling conundrum.  On the one hand, we absolutely don’t want the government dictating who religious institutions chose to lead them, on the other we want all employees, regardless of who they are and where they work, to be protected.  So the Court was faced with a really tough choice.  It came down on the separation side deciding that while the interest of society in the enforcement of employment discrimination statutes is important, that is trumped by the interest of religious groups in choosing who will teach their beliefs. Trumped but limited to this case or assumably ones exactly like it.  Clearly their decision reflects that they too understood the conundrum. As Chief Roberts put it: ...We express no view on whether the [ministerial] exception bars other types of suits, including actions by employees alleging breach of contract or tortious conduct by their religious employers.  There will be time enough to address the applicability of the exception to other circumstances if and when they arise.

Whenever we set up protections for one class of people not accorded to others we walk a fine line.  The Establishment Clause was aimed at protecting against a government that would subvert religious freedom and independence.  Roberts methodically recounts that background in his decision referencing, among others, The Act of Supremacy of 1534 [that] made the English monarch the supreme head of the Church.  He reminds us that, seeking to escape the control of the national church, the Puritans fled to New England.  They were not alone in seeking religious freedom.  But who exactly should have that protection?  Should it be limited to those groups who believe in a god, or who profess following divine teaching and direction or should it also protect, say a group that challenges a god’s existence or more pointedly speaks against such a deity?  The organized Secular Humanists have skirted that important issue by presenting themselves as a church — in effect a godless-religion. 

In 2005 a Federal Appeals Court, faced with the plea of a prison inmate, ruled that that atheism is equivalent to a religion for the purposes of the First Amendment.  It follows then that courts are likely to protect the rights of an individual atheist, though perhaps more on the grounds of the Frist Amendment’s free speech guarantee than necessarily its establishment clause.  If so, that’s too bad because in my view her lack of belief in God should be treated identically as would be the case for a theist follower an organized religion, and for the same legal reason.  But would an organized group of atheists who refuse to follow the secular humanist route in calling themselves either a church or a religion be accorded the same ministerial exception that the Court gave Hosanna-Tabor?  I’m talking here about an organization made up of people coming from what Pew and others characterize as the fastest growing group on the religious landscape.  What criteria might the Court use to make that judgment?  Would it be sufficient for the group to designate leaders or would they need to have established a formal set of beliefs and/or rules of governance?  Would they have to have incorporated?  Given where we’re actually headed in this assumed religious country, this is not a far-fetched question.   Associations of atheists already exist likey to both promulgate and then effectively transmit their beliefs to the next generation.  Others may be formed in the future even if only to get the seat they deserve at the table of public discourse.  How would the Court treat these non-churches — how would they as institutions be protected by the Establishment Clause?

Given the militant reaction of the religious right to the so-called value issues currently focused on what they call traditional marriage, it’s fair to wonder how they would feel if an atheist entity were accorded, or even to claim, a ministerial exception?  Think about it.   The very idea that atheism could be placed on the same legal plane as theism would be no less troubling than allowing abortions or same-sex unions.  That God isn’t ultimately more important to evangelicals and other orthodox religious than terminating a pregnancy or allowing gay and lesbians — mere mortals — to marry would be mystifying.  In fact, I would think that in their worldview according atheists equal establishment clause status would be nothing short of blasphemy.  It would be seen as the ultimate slippery slope.

Courts generally don’t answer unasked questions and, to inoculate themselves, are loath to publically speculate on issues and cases that might be.  Who knows whether in the privacy of their conference or individual chambers these questions have been discussed or even considered?  There is no evidence that any member of the Court is an active atheist or even an agnostic.  Their rulings on the establishment clause aren’t theologically grounded other than to protect freedom of those who are.  It may take a long time, if ever, for this issue to present itself.  And the questions raised in Hosanna-Tabor are by no means limited to the ones just posed.

Having personally experienced being employed as a clergyman and then as a business executive, I come to this issue with a little different perspective than those who don’t share that experience.  Of course the purposes of my different employers were different as was the work.  Many churches and clergy see the ministry as a calling (sometimes literally the result of divine intervention or purpose) — The Lutheran’s gave Ms. Perish the title: called-teacher.   I never saw it that way, and not all religions do either.  The fact is that, regardless or the job description or work, both as a rabbi and as an executive I was an employee.  I was expected to perform and in return expected a salary check to reach me when promised, to have appropriate working conditions and to be treated fairly and equitably by my employers; synagogue board or company.   We all know that doesn’t always go well.  And we know from the sexual abuse scandal, both the criminal acts and the cover-up, that religious institutions are not immune from wrongdoing.  Ms. Perish’s employers dodged a bullet that would likely have hit its target had she worked for any other kind of school, public or private.  I don’t think the ADA was meant to exclude any employer or not to protect the rights of any individual.  The Court’s decision certainly re-affirmed the establishment clause, but it’s hard to deny it raised as many questions as it answered.


  1. I fully agree with you Jonathan, excellent article.

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