New Supreme Court Ruling Should End Hysteria over Religious Liberty

Daily Beast
January 12, 2012

http://www.thedailybeast.com/articles/2012/01/12/new-supreme-court-ruling-should-end-hysteria-over-religious-liberty.html

In its first major religious-freedom case in decades, the Supreme Court on Wednesday sided with a Pennsylvania Lutheran school that fired a teacher after she took disability leave for narcolepsy, then returned mid-year demanding her job back. The Hosanna-Tabor Evangelical Lutheran School, part of a church of the same name, told the teacher they had hired a contractor to take her place through the end of the year, and that they were concerned about her physical readiness to return to work. Church members offered to help pay her insurance bills if she resigned, but she threatened to sue instead. She made good on her promise when the school fired her, claiming it had illegally discriminated against her because of her disability.

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The court based its decision in Hosanna-Tabor v. Equal Employment Opportunity Commission on a long history of reverence for the “ministerial exception”—the idea that it violates the First Amendment for the state to interfere in who religious groups hire and fire. The decision hinged on a broad definition of “minister,” arguing that because she was ordained, considered “called” by God to her position, and collected religious-tax breaks, the teacher is the type of person religious groups should be able to select—and get rid of—without state interference. “The church must be free to choose who will guide it on its way,” Chief Justice John Roberts wrote for the court. Though this case itself didn’t involve a hot-button issue, it firmly established that churches have the right to discriminate in hiring.

If you’d only been listening to the religious right for the past three years, this decision—especially the fact that it was unanimous—would come as a shock. During the 2008 campaign, the political arm of Focus on the Family published a “Letter from 2012,” predicting that the Supreme Court under Obama would “set about to quickly expedite cases by which they would enact the full agenda of the far Left.” In 2009, the Family Research Council sent out a fundraising letter warning that the Employment Non-Discrimination Act (ENDA), which would prohibit discrimination in hiring based on sexual orientation, would “impose homosexuality and silence Christianity in workplaces,” adding explicitly that the law represented a “radical assault” on the freedom of churches to hire and fire whom they pleased. Conservative Christian groups attacked both justices appointed by Obama, Sonia Sotomayor and Elena Kagan, as radical leftists eager to exploit laws like ENDA to force conservative believers into submission.

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In the theoconservative imagination, almost everything the government does to ensure equal rights, especially for LGBT Americans, is a threat to religious liberty. Non-discrimination statutes could force churches or Christian businesses to hire gay employees. Legalized gay marriage could lead to churches being forced to conduct gay weddings. The end of Don’t Ask Don’t Tell could force chaplains not to preach against homosexuality.

But the Supreme Court’s decision in the Hosanna-Tabor case illustrates how overheated this alarmism has been. Most of the laws that potentially pose religious conflicts, like ENDA and New York’s gay marriage law, come pre-loaded with broad exemptions that conservatives uniformly and unconvincingly dismiss as insufficient. When internal church matters do make it to the high court, the answer is always the same: churches get to discriminate in ways businesses do not with regard to who they hire and what the people they hire are allowed to say. The court cites a 1952 decision in which it held that churches have “power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” And all nine justices, including Obama’s two “radical leftists,” agreed.

Religious liberty is one area where American citizens are granted substantially more constitutional protection than those of other Western nations.

Rather than constantly prophesying the tyranny of American institutions, it would make much more sense for religious conservatives to celebrate the U.S. judiciary’s unique commitment to religious freedom. Religious liberty is one area where American citizens are granted substantially more constitutional protection than those of other Western nations. The United Kingdom, often and absurdly presented by theoconservatives as the harbinger of evils to come to the U.S. judiciary, has no constitutionally prescribed freedom of religion. Across continental Europe, guarantees of religious freedom are interpreted narrowly. While European nations enact prejudicial laws against Muslims in the wake of 9/11, American courts have doggedly resisted discrimination against minority religions. (Discrimination supported, ironically, by many of the very same people who fret about liberty for their own majority religion.)

While they’re at it, defenders of religious liberty should praise the Court for doing something else they’d like us to believe it never does: deliver a limited ruling that doesn’t amount to a sweeping change in the law. In the Hosanna-Tabor case, the court refused to establish a test for who is and is not a “minister,” and declined to rule on speculation about other foreseeable situations where a church might use its prerogative to fire an employee who, for example, reported illegal activity by church members or officials. “There will be time enough to address the applicability of the exception to other circumstances if and when they arise,” the Court wrote.

Some Christians are already responding admirably, warning religious institutions not to use their firing prerogative to mask discrimination. A whole lot of others should take the opportunity to admit their overwrought prognostications about the downfall of religious liberty have been wrong, and that American believers enjoy one of the friendliest legal environments on earth.

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David Sessions is a homepage editor at Newsweek/The Daily Beast. He has written for Slate, New York, Politics Daily, and others. He is the founding editor of Patrol, a blog about religion and politics.

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