U. S. Supreme Court: Churches Are Free to Ignore the Law

Personally - and as regular readers are no doubt aware - I am way over churches and so-called religious organizations, especially Christian ones, being afforded special rights and allowed to do things that other citizens and organizations are forbidden to do. Yet, sadly, the U. S. Supreme Court has handed down a ruling that will likely result in churches and religious organizations increasingly believing that they are above the law. While the Court purported to recognize a “ministerial exception” to employment discrimination laws, the reasoning behind the ruling has opened all kinds of likely abuses. The fired employee in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, was by no means a "minister" and in any other universe would have been described as a school teacher. Not surprisingly, Justice Clarence Thomas gave the equivalent of judicial fellatio to the church defendant who had wrongfully fired the school teacher. The New York Times has sanitized coverage of this wrongheaded ruling. Fellow blogger compatriot Jillian T. Weiss at The Bilerico Project has a real world analysis of the ruling. First the Times' mealy mouthed coverage:

WASHINGTON — In what may be its most significant religious liberty decision in two decades, the Supreme Court on Wednesday for the first time recognized a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.

The decision gave only limited guidance about how courts should decide who counts as a minister, saying the court was “reluctant to adopt a rigid formula.” Two concurring opinions offered contrasting proposals.

Whatever its precise scope, the ruling will have concrete consequences for countless people employed by religious groups to perform religious work. In addition to ministers, priests, rabbis and other religious leaders, the decision appears to encompass, for instance, at least those teachers in religious schools with formal religious training who are charged with instructing students about religious matters.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said Wednesday’s decision could have pernicious consequences, by, for instance, barring suits from pastors who are sexually harassed. “Blatant discrimination is a social evil we have worked hard to eradicate in the United States,” he said in a statement. “I’m afraid the court’s ruling today will make it harder to combat.”

In a concurrence, Justice Clarence Thomas wrote that the courts should get out of the business of trying to decide who qualifies for the ministerial exception, leaving the determination to religious groups.

“The question whether an employee is a minister is itself religious in nature, and the answer will vary widely,” he wrote. “Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multifactor analysis risk disadvantaging those religious groups whose beliefs, practices and membership are outside of the ‘mainstream’ or unpalatable to some.”

Religion continues to be one of the most insidious threats to constitutional government and civil rights for all citizens regardless of race, creed, religion, sexual orientation and national origin. Here some highlights from Jillian's spot on review of what the Court has done:

When the Equal Employment Opportunity Commission came calling, after Ms. Petich had filed a claim for discrimination based on disability, the school said that Ms. Petich had not been fired because of her disability. No, they were fine with her disability. Rather, she had been fired because of religious law. Ms. Petich had violated the beliefs of their Church. What beliefs of the Hosassa-Tabor Evangelical Lutheran Church had Ms. Petich violated so flagrantly? Why, the belief of the Church that its members should never resort to the law to protect their rights against Church members.

No, I'm serious. The Church said that anyone who threatens litigation is violating God's law. Since Ms. Petich mentioned that she "planned to assert her legal rights," she had to be fired because she violated God's law. I mean, seriously?

Rather than dismissing this whopper with a chuckle, as they should have, the Supreme Court bowed reverentially and ruled that any religious employer can avoid a lawsuit for workplace laws so long as they take care to ensure that their religious beliefs include a line about never suing the Church. Firing for disability? Right as rain. You seem gay, so you're fired? No problem. Fire those sniveling whiners who complain about sexual harassment or sex-for-keeping-your-job? A- Okay. You say we violated the child labor laws or the minimum wage laws? No, sorry, those are ministers, so the laws don't apply. You got injured on the job and want to sue? Forget it, bub, we told you that your job includes thinking about God and being holy, so the "ministerial exception" puts the halo of silence around you. Get on your knees and tell your ambulance-chaser to take a walk.

Also, courts must now decide what constitutes "internal church decisions" and also whether they "affect the faith and mission" of the religion. Honestly, how is a judge of some other or no religious persuasion supposed to decide that?

There is already another exception for that, permitting churches to use religious qualifications in their hiring decisions. Rather, the decision yesterday makes "Church" into a magic word that banishes law enforcement.

I wouldn't be surprised to see a large scale reorganization of a wide variety of business-related entities to try to take advantage of the new religious shield exception. It shouldn't be unexpected to see a series of lower court decisions, particularly in, say, Oklahoma, saying that the Baptist Plumbing Co., Inc., which has every employee lead morning prayers or write a religious blurb on the company blog once a month, is exempt from workplace laws. As I discussed in my recent law review article on the application of the First Amendment to LGBT employment discrimination laws, a First Amendment claim cannot trump employment non-discrimination laws. But we're going to see a much stronger effort to do so after this decision.

Courts deciding on which religious purposes matter -- now there's an "Establishment Clause" problem if I ever heard one. Christian Dominionists rejoice!