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January 13, 2012 6:44 AM   Subscribe

Unanimous SCOTUS ruling: Anti-discrimination laws (such as the ADA) do not apply to church employees with religious duties. Full ruling: PDF, HTML
posted by Evilspork (107 comments total) 6 users marked this as a favorite

 
Churches don't pay taxes and don't obey our laws. If we could convince Republicans that churches had oil, we could liberate them to the benefit of all.
posted by DU at 6:47 AM on January 13, 2012 [19 favorites]


Coming soon: The Church of Halliburton.
posted by schmod at 6:49 AM on January 13, 2012 [4 favorites]


But it is not really a partisan issue. It looks like Roberts wrote the opinion for a unanimous court, so the liberal wing was on board with this decision.
posted by HabeasCorpus at 6:50 AM on January 13, 2012 [1 favorite]


I'm only half way through the syllabus, but I'd quickly point out two things. One, the exception only covers ministers, although it looks like the Court didn't articulate a test for determining if someone is a minister. Two, unanimous decisions are probably right.
posted by Bulgaroktonos at 6:52 AM on January 13, 2012 [6 favorites]


Good. 'Cause Jesus was all about discrimination.
posted by Benny Andajetz at 6:53 AM on January 13, 2012 [13 favorites]


It seems to make sense to me. If my local parish doesn't hire the Buddhist who applies for the vacant priest position because he's not Catholic, I'm really thinking they have a point that the are not discriminating.
posted by spicynuts at 6:56 AM on January 13, 2012 [17 favorites]


I'm actually kind of encouraged by the aspect of the ruling that focuses on religious duties. The Court declined to get involved in what types of jobs include "religious leadership," but the ministerial exception as commonly granted often includes every church employee, from the priest down to the janitor. The Court is saying here that there may be way to draw the line between religious and non-religious staff -- we're not drawing it -- but the implication is that those on the other side of that line would in fact be covered by anti discrimination protections. IANAL and that's my interpretation.

I do know that in my town, the LGBT protections we recently passed included a broad exception for the churches, which everybody acknowledged could lead to a janitor being fired for kissing goodbye to a samesex partner getting dropped off for work. But our sense, and that of our counsel, was that the ministerial exception provides for no distinction between religious and secular staff.

The justices here seem to be saying that there is a distinction, but we're not making it. Is that a bit of progress? Looks that way.
posted by stupidsexyFlanders at 6:56 AM on January 13, 2012 [9 favorites]


the exception only covers ministers, although it looks like the Court didn't articulate a test for determining if someone is a minister.

Very true, although on the facts of this case, the test will have to be broad, won't it? It looks like the person at issue was considered a "called minister" by her Church, but was effectively a teacher whose religious duties took up at most 45 minutes of her day.
posted by HabeasCorpus at 6:57 AM on January 13, 2012 [2 favorites]


Good. 'Cause Jesus was all about discrimination.

Wait, what? This ruling doesn't apply to the church's janitor. This applies to the people who actually carry out religious functions, priests, ministers, rabbis, etc.

Now, James O'Keefe can't get hired as a preacher at a mosque to "prove" it's connection to terrorism.

Basically, this prevents religious trolling.
posted by spaltavian at 6:57 AM on January 13, 2012


ScotusBlog write-up
posted by smackfu at 6:57 AM on January 13, 2012 [2 favorites]


Yeah, it'd be really cool if people could read the actual opinion before the wailing and gnashing of teeth begins. The oral argument (PDF) is a good read too. A very interesting case that rightly keeps church and state separate. (We do still think that's a good thing, right?)
posted by Gator at 6:58 AM on January 13, 2012 [10 favorites]


If my local parish doesn't hire the Buddhist who applies for the vacant priest position because he's not Catholic, I'm really thinking they have a point that the are not discriminating.

I'm pretty sure you can already "discriminate" on this kind of thing if you can show you need a particular trait. E.g., you are casting a 50s-style sitcom and you already have the mom picked out, you can reject the female applicants for the "Dad" character.
posted by DU at 6:58 AM on January 13, 2012 [1 favorite]


Catholic school kid: "Mom, why do the janitors lead us in prayer each morning now?"
posted by stupidsexyFlanders at 6:59 AM on January 13, 2012 [4 favorites]


this case is limited to ministers, and whether one is or is not a minister is to be decided on a case by case basis. I think that makes this a significant case, but not as scary as some headlines would make it out to be.
posted by caddis at 6:59 AM on January 13, 2012


I see the reasons legally, and they are hard to avoid (although we do so here in the UK). On the policy level, this is an astonishingly bad idea though. It's going to institutionalise transphobia, homophobia and racism (ranked rougly by intensity).
posted by jaduncan at 6:59 AM on January 13, 2012


I fully understand why churches wouldn't fall under most discrimination law, but why are they exempt from the disabilities act? General freedom of religion principal?
posted by smackfu at 7:01 AM on January 13, 2012 [2 favorites]


Note that the woman was in a pretty secular position within the church. I should have emphasized this more in the writeup, I apologize:

Teacher Cheryl Perich received her call from the Hosanna-Tabor congregation in 2000. Perich taught her fourth-grade students a range of secular subjects, including math, social studies and music. She also taught religion four days a week, regularly led her students in prayer and in a daily devotional, and planned and led worship services – duties also assigned to lay or contract teachers at the school.
posted by Evilspork at 7:01 AM on January 13, 2012 [2 favorites]


In another SCOTUS ruling this week, the court upholds binding arbitration clauses.
posted by Thorzdad at 7:02 AM on January 13, 2012 [2 favorites]


This decision isn't articulating a particularly new doctrine. Early in the decision:
Since the passage of Title VII of the Civil Rights Act of 1964and other employment discrimination laws, the Courts of Appealshave uniformly recognized the existence of a “ministerial exception,”grounded in the First Amendment, that precludes application of suchlegislation to claims concerning the employment relationship be-tween a religious institution and its ministers. The Court agrees thatthere is such a ministerial exception. Requiring a church to accept orretain an unwanted minister, or punishing a church for failing to doso, intrudes upon more than a mere employment decision. Such ac-tion interferes with the internal governance of the church, deprivingthe church of control over the selection of those who will personify itsbeliefs. By imposing an unwanted minister, the state infringes theFree Exercise Clause, which protects a religious group’s right toshape its own faith and mission through its appointments. Accordingthe state the power to determine which individuals will minister tothe faithful also violates the Establishment Clause, which prohibitsgovernment involvement in such ecclesiastical decisions.
I think the Court is articulating something that makes a lot of sense from a practical standpoint, which is that the Free Exercise Clause makes it virtually impossible for a governmental body to decide that an individual is otherwise qualified to serve as a minister.

In other words, in order to bring a successful ADA claim, you have to show that the plaintiff a) has a disability, b) has suffered an adverse employment action, and c) could have performed his or her job duties if the employer made a reasonable accomodation for his or her disability.

"Could have performed the duties of a minister" is not a question the Court is allowed to answer, because it requires the Court to make a determination that is essentially and exclusively religious in character. It requires a Court to say to a congregation, "you're wrong about what you're saying a minister should do or believe." This is a clear violation of the Free Exercise clause.
posted by gauche at 7:04 AM on January 13, 2012 [8 favorites]


"giving religious organizations wide latitude in hiring and firing clergy and other employees who perform religious duties."

Church of Haliburton, no. Schools/Girl Scout offshoots/Charities with all religiously employed staff to allow discrimination when all one needs to do is add one religious duty a week to be able to discriminate? Hell, I wouldn't even put it past some major churches.
posted by jaduncan at 7:06 AM on January 13, 2012 [3 favorites]


Fine with me if churches want to be exempt from everything. But then they should be exempt from *everything.* No fire or police protection, no roads to their doors, no providing social services under contract to states, no form of public subsidy whatsover, direct or indirect.

Until then, I will never understand why these profitable institutions do not pay taxes.
posted by spitbull at 7:06 AM on January 13, 2012 [16 favorites]


Very true, although on the facts of this case, the test will have to be broad, won't it? It looks like the person at issue was considered a "called minister" by her Church, but was effectively a teacher whose religious duties took up at most 45 minutes of her day.

It looks like she led the students in worship, which makes her look like a minister to me, but the non-called teachers also did that, which seems like kind of a mess of a policy from the church's perspective.

I see the reasons legally, and they are hard to avoid (although we do so here in the UK). On the policy level, this is an astonishingly bad idea though. It's going to institutionalise transphobia, homophobia and racism (ranked rougly by intensity).

This is the first time the Supreme Court has endorsed the exception, but it's been the law in most(all?) federal courts based on appeals court rulings. While I agree that it's going to give license to churches to instutitonalize discriminatory practices, I'm not sure I see a better option that doesn't require federal courts to start interfering with how religious groups operate in ways that limit their freedom of religion. For instance, I think most of us will agree that you can't force the Catholic Church to hire an atheist as a priest, but you can't start forcing them to hire transsexuals without getting into the messy business of telling them what really counts as part of their religion.
posted by Bulgaroktonos at 7:08 AM on January 13, 2012


Gauche has it. You can't decide that there has been an ADA hiring violation without making a ruling that the applicant is fit to perform the duties of the job in question. Having the government decide who is and is not fit to be a minister is a massive violation of the first amendment. Maybe it'll be abused, but show me a better alternative and I'm all ears.
posted by Holy Zarquon's Singing Fish at 7:10 AM on January 13, 2012 [1 favorite]


Until then, I will never understand why these profitable institutions do not pay taxes.

Walz v. Tax Commission is one of the SCOTUS cases on this.

"The tax exemption creates only a minimal and remote involvement between church and state, far less than taxation of churches would entail, and it restricts the fiscal relationship between them, thus tending to complement and reinforce the desired separation insulating each from the other"
posted by smackfu at 7:12 AM on January 13, 2012 [3 favorites]


It's separation of church and state, not "separation of church and state unless I don't agree with the church's practices in which case the state can totally step in and dictate to the church."

You take the good with the bad. It's not perfect, but it's probably better than the alternative (especially when the alternative is likely to be a theocracy).
posted by oddman at 7:14 AM on January 13, 2012 [6 favorites]


If you don't want to be forced to be religious then you also should understand that religious groups do not wish to violate their tenets either. Just because you think hamburgers are a human right doesn't mean the Hindu temple around the corner has to employ carnivores.
posted by St. Alia of the Bunnies at 7:17 AM on January 13, 2012 [6 favorites]


Fine with me if churches want to be exempt from everything. But then they should be exempt from *everything.* No fire or police protection, no roads to their doors, no providing social services under contract to states, no form of public subsidy whatsover, direct or indirect.

Yep. Another case of "socialize the costs, privatize the profits". As well as another case of "conservatives yelling about stuff they themselves are the ones doing" in this case, special rights.
posted by DU at 7:19 AM on January 13, 2012 [3 favorites]


Both the majority opinion and the concurrences are well thought-out. I wish I had more to add, but the reasoning therein strikes me as uncontroversial and not a particularly difficult intellectual matter.
posted by Inspector.Gadget at 7:22 AM on January 13, 2012 [2 favorites]


Quick fix on the headline:

Unanimous SCOTUS ruling: Anti-discrimination laws (such as the ADA) do not apply to church employees with religious duties in this specific set of circumstances.
posted by The 10th Regiment of Foot at 7:24 AM on January 13, 2012 [1 favorite]


Yep. Another case of "socialize the costs, privatize the profits". As well as another case of "conservatives yelling about stuff they themselves are the ones doing" in this case, special rights.

But, there isn't anything in this about conservatives, it's about limiting government interference with religionous organizations, period. Conservative, liberal, crazy UFO cult, whatever. There's no special rights for anyone other than the rights that everyone has under the First Amendment.
posted by Bulgaroktonos at 7:24 AM on January 13, 2012 [4 favorites]


Gator: "Yeah, it'd be really cool if people could read the actual opinion before the wailing and gnashing of teeth begins. The oral argument (PDF) is a good read too. A very interesting case that rightly keeps church and state separate. (We do still think that's a good thing, right?)"

It would be nice if the OP had done so, or at least positioned this post better. Between this title and the framing, it practically encourages teeth gnashing.
posted by zarq at 7:25 AM on January 13, 2012 [3 favorites]


Yep. Another case of "socialize the costs, privatize the profits". As well as another case of "conservatives yelling about stuff they themselves are the ones doing" in this case, special rights.

You know, churches and religious organizations have been at the forefront of most of the progressive initiatives of the past hundred years. The labor movement; the civil rights movement; the anti-war movement; hospitals being open to everyone.

I really, really resent your implication that churches are conservative. It's othering and inaccurate and it tells the religious majority of humankind that they are not wanted in progressive circles.
posted by gauche at 7:26 AM on January 13, 2012 [8 favorites]


Can't wait to see of this decision refers to or distinguishes itself from Gonzalez v. O Centro on the subject of use of controlled substances by a religious group. Is firing people a holier sacrament than any other?
posted by Stoatfarm at 7:26 AM on January 13, 2012 [1 favorite]


I have to go through and read the full ruling when I have time, because all the articles I've read have confused me. I'm trying to determine how this case is supposed to set precedent for religious hiring. When we were going through the hiring process for our last pastor, we were told by our local church body that while we would obviously be discussing religious issues pretty in-depth, we should not ask questions regarding any other protected class status (age, health, family status). Can organizations now discriminate while hiring religious leaders for any reason (You're too old, You're too fat, You're not married and we want someone partnered), or was that something religious organizations could always do?
posted by ThePinkSuperhero at 7:28 AM on January 13, 2012


Couldn't find references to Gonzalez, but a rather strained reference to Smith.. Seems like some bending over backwards was done here.
posted by Stoatfarm at 7:30 AM on January 13, 2012


Metafilter: it practically encourages teeth gnashing.
posted by 445supermag at 7:30 AM on January 13, 2012 [3 favorites]


Separation of church and state should be paramount.

However: if it makes a profit, it is a business, not a church.

Until we codify and enforce that last, the bullshit will continue.
posted by mie at 7:31 AM on January 13, 2012 [2 favorites]


we should not ask questions regarding any other protected class status (age, health, family status). Can organizations now discriminate while hiring religious leaders for any reason (You're too old, You're too fat, You're not married and we want someone partnered), or was that something religious organizations could always do?

There are all kinds of reasons why you might not want to ask those questions even though you'd be allowed to by law.

Also, a lot of times business people who have experience hiring in the private sector will get onto church hiring committees and set the tone for how a congregation should hire a pastor. Somebody might have internalized those lessons from their job and brought them to church.
posted by gauche at 7:33 AM on January 13, 2012


Good. Now I can start The First Church of the Physically Disabled safe in the knowledge that we'll never have to accept an able-bodied priest.
posted by oneswellfoop at 7:34 AM on January 13, 2012 [1 favorite]


Can't wait to see of this decision refers to or distinguishes itself from Gonzalez v. O Centro on the subject of use of controlled substances by a religious group.

Seeing as how this ruling was based on a specific set of circumstances rather than a broadly sweeping ruling as implied in the initial post, probably it won't.
posted by The 10th Regiment of Foot at 7:36 AM on January 13, 2012


And, speaking as a sometime employment lawyer, if I were asked to advise a congregation or parish about a hiring process, I'm not sure I'd be comfortable telling them, "go nuts, ask this guy about his whole medical history, relationship status, &c." just because, this opinion notwithstanding, litigation is expensive, even litigation that is doomed to fail.
posted by gauche at 7:37 AM on January 13, 2012 [3 favorites]


Can organizations now discriminate while hiring religious leaders for any reason (You're too old, You're too fat, You're not married and we want someone partnered), or was that something religious organizations could always do?

As I understand it, before churches could only discriminate on the basis of religion. Now it seems like they could fire a minister for any reason. But it only applies to ministers.

I think David Gibson at Commonweal nailed it: "Religions are free to be jerks."
posted by dw at 7:37 AM on January 13, 2012


All organizations can legally ask questions regarding protected class information. It is only illegal to base hiring decisions on the answers, which is why most HR departments discourage it.
posted by jondunc at 7:38 AM on January 13, 2012 [1 favorite]


One hallmark of the Roberts court would seem to be his ability to bring cases in front of the court where the really divided blocks can be unanimous. This was certainly the way he started off.
posted by three blind mice at 7:39 AM on January 13, 2012


Now I can start The First Church of the Physically Disabled safe in the knowledge that we'll never have to accept an able-bodied priest.

No, you've been able to do that for around 220 years. What this ruling may allow you to do is fire an able-bodied teacher in your school for threatening to sue over anti-ADA practices because she was hired contingent not on her qulifications, but because of her adherance to your church's dogma and because she was also hired to teach religion courses and leads a prayer group.
posted by The 10th Regiment of Foot at 7:39 AM on January 13, 2012


Can organizations now discriminate while hiring religious leaders for any reason (You're too old, You're too fat, You're not married and we want someone partnered), or was that something religious organizations could always do?

I think McClure v. Salvation Army was the first case that concluded that. A women sued the salvation army for gender-discrimination.
An application of the provisions of Title VII to the employment relationship which exists between The Salvation Army and Mrs. McClure, a church and its minister, would involve an investigation and review of these practices and decisions and would, as a result, cause the State to intrude upon matters of church administration and government which have so many times before been proclaimed to be matters of a singular ecclesiastical concern. Control of strictly ecclesiastical matters could easily pass from the church to the State. The church would then be without the power to decide for itself, free from state interference, matters of church administration and government.
posted by smackfu at 7:40 AM on January 13, 2012


...tells the religious majority of humankind that they are not wanted in progressive circles.

The entire humanist program for the last 500 years, which "progressive circles" are merely the latest incarnation of, is about eliminating religion. That is the whole point. No more unknowable "commandments" supposedly from on high but actually from kings and other elites. Self-direction. You can try to hide that from churches to get them to play along on a few issues, but at it's core, progressivism is the opposite of religiosity.
posted by DU at 7:41 AM on January 13, 2012 [7 favorites]


As I understand it, before churches could only discriminate on the basis of religion. Now it seems like they could fire a minister for any reason. But it only applies to ministers.

That McClure case above was from 1972. It's not SCOTUS, but it has been the law of the land.
posted by smackfu at 7:41 AM on January 13, 2012


As I understand it, before churches could only discriminate on the basis of religion. Now it seems like they could fire a minister for any reason. But it only applies to ministers.

As I said above, I don't think this has changed much because it's a Supreme Court seal of approval to what was previously the law based in every federal circuit. PinkSuperheroes congregation could have discriminated on the basis of whatever they wanted(in the hiring of a minister); they chose not to, probably for the cost of litigation reasons gauche mentions, but I don't think the law for them has changed; it's just that the law now comes from the Supreme Court, rather than the local Court of Appeals.
posted by Bulgaroktonos at 7:42 AM on January 13, 2012


PinkSuperheroes congregation could have discriminated on the basis of whatever they wanted(in the hiring of a minister); they chose not to, probably for the cost of litigation reasons gauche mentions

Well, no, it's because we're not assholes, though litigation is scary, too.
posted by ThePinkSuperhero at 7:43 AM on January 13, 2012 [8 favorites]


The entire humanist program for the last 500 years, which "progressive circles" are merely the latest incarnation of, is about eliminating religion.

Not quite, it's about eliminating religion from universal decisons, but not excluding it from the personal. Neither does progressivism have to be the opposite of religion. One can be progressive, humanist, AND devoutly religious (e.g. Thomas Jefferson, yeah he was also a schmuck sometimes, but aren't we all?).
posted by The 10th Regiment of Foot at 7:45 AM on January 13, 2012 [5 favorites]


ThePinkSuperhero: "Can organizations now discriminate while hiring religious leaders for any reason (You're too old, You're too fat, You're not married and we want someone partnered), or was that something religious organizations could always do?"

Whether these are given as official reasons, it seems likely that religious organizations are already using them to determine whether a minister or rabbi would be a good fit for a given congregation. Three synagogues in my area have hired young rabbis in the last five years. They were considered more likely than other candidates to attract young families and revitalize their communities. And I suspect the first question a candidate (especially a male!) would be asked by the congregation's elderly yentas (and aggressive mothers of eligible daughters) following a trial run Sabbath service would be "So, is there a Rebbetzin (Mrs. Rabbi)? Because my Miriam is currently single and she's just about your age...."

What goes unspoken by the hiring committee is no doubt as important as the overt discussion.
posted by zarq at 7:47 AM on January 13, 2012 [1 favorite]


Hehe, the only thing that sounds scarier than a call committee is a yenta committee.
posted by ThePinkSuperhero at 7:50 AM on January 13, 2012 [5 favorites]


Well, no, it's because we're not assholes, though litigation is scary, too.

You know, I thought about putting that in there, but I didn't want to presume too much. I also think there are a lot of churches out there picking ministers for race and family status reasons that are less being assholes and more trying not to stir up a congregation that would have trouble accepting a minister who was of a different race or unmarried.
posted by Bulgaroktonos at 7:51 AM on January 13, 2012


Yay Bigotry Aquariums!
posted by Artw at 7:58 AM on January 13, 2012


Oh, totally. We were lucky in that our local church body manages our call processes- they send a fixed number of candidates to review (all of whom you have to totally reject before they'll send you more, to keep you from shopping forever), as opposed to our having to go out on our own to find people. I think members of our last call committee probably had a good number of preconceived notions about what they wanted in a pastor (the interim we had for several years was very popular, and I know a lot of people wanted someone very much like him), and had they been in charge of picking their own candidates, I don't know that any of the people we were sent would have naturally been popular choices.
posted by ThePinkSuperhero at 7:59 AM on January 13, 2012


I love it that the case was brought by the "Hosanna-Tabor Evangelical Lutheran Church and School", which seems a bit of a mix-and-match of various religions.
posted by marienbad at 8:00 AM on January 13, 2012


PinkSuperheroes congregation could have discriminated on the basis of whatever they wanted(in the hiring of a minister); they chose not to, probably for the cost of litigation reasons gauche mentions

Well, no, it's because we're not assholes, though litigation is scary, too.


Bingo. Even though that congregation is Lutheran, it's ELCA not LCMS. The trick (for me at least) in this case, is to understand the idea of what a "call" is. That definition is determined by the religious group. For Lutherans (and for the confessional minded strictness that is the LCMS), the difference between secular and religious is weak (i.e. two kingdom theology). Instead, the teacher was called by the congregation and her work was given, in a sense, a religious weight. She was called, by the congregation, to provide instruction in all things. It does not matter what she teaches or how much religious instructions she provides a week. The congregation is calling her to teach. It's slightly a step above being "hired" for a job. Her contract was different than the lay teachers and was filled with a confessional/theological weight that the lay teachers did not have. The LCMS has, for a long long time, had this kind of distinction between teachers and called teachers are given a symbolic hierarchal position within the wider church that the lay teachers do not have. It does not matter what she teaches - it is that she is fulfilling a religious function for the good order of the church.

For comparison, the secretary at our congregation is not called by the congregation. Neither is the sexton nor the organist. But the pastor is. There is a different religious expectation for the reason why the individual was called to serve in the church.

Now, from certain perspectives of the ELCA, we don't see the ADA/employment discrimination laws as anti-church. Nor do they really interfere too much with what we're going to do in the hiring process. Because there are other things that we're gonna ask about - theological perspective, ideology, history, business knowledge, church growth strategies, experiences, etc - that are just more important. By using the government discrimination guidelines as a way to move the conversation beyond what the basic questions that the committee might get stuck on and that might trap the committee in their own assumptions (i.e. assuming that a young couple will have kids and they'll bring kids into the church, thus, focusing only on the marital status of the pastor rather than on their vision of mission, outreach, etc). Does it work? Maybe not but it's a start.
posted by Stynxno at 8:01 AM on January 13, 2012 [1 favorite]


Look kids, this is much more serious than it seems. The ministerial exception has been used to allow churches to retaliate against whistleblowers who report sexual abuse. Have fun with all that religious freedom you got now.

I think the court could have devised a test that did not require them to interfere with religious decisionmaking. I mean, in this case, the church didn't even try to advance a non-discriminatory reason for the termination. It was naked disability discrimination: the teacher was sick, and they didn't want to keep her on. I think that in cases where the motivation for the termination is nakedly NON-RELIGIOUS, there is no reason for the ministerial exception. And at the very least, there has to be a carve-out for whistleblowers who report criminal or public safety violations ... ESPECIALLY considering that sometimes they may themselves face criminal sanctions if they don't report abuse.

Argh.
posted by yarly at 8:02 AM on January 13, 2012 [3 favorites]


You know, churches and religious organizations have been at the forefront of most of the progressive initiatives of the past hundred years. The labor movement; the civil rights movement; the anti-war movement; hospitals being open to everyone.

More recently, they've been at the forefront of most of the regressive initiatives: fighting marriage equality, fighting reproductive freedom, protecting child rapists.
posted by Trurl at 8:08 AM on January 13, 2012 [1 favorite]


Why do people keep saying "religions" when they only mean a couple of specific ones?

I think that in cases where the motivation for the termination is nakedly NON-RELIGIOUS, there is no reason for the ministerial exception.

A smart religion would just prefix every decision with "For religious reasons..." and then it would stop right there.
posted by smackfu at 8:11 AM on January 13, 2012 [2 favorites]


More recently, they've been at the forefront of most of the regressive initiatives: fighting marriage equality, fighting reproductive freedom, protecting child rapists.

And the movement to end those policies as well. If you're going to use a broad brush, at least use it broadly.
posted by The 10th Regiment of Foot at 8:11 AM on January 13, 2012


ThePinkSuperhero: "Hehe, the only thing that sounds scarier than a call committee is a yenta committee."

When my kids were about three months old, the rebbetzin at our synagogue asked one afternoon after services if she could hold them both at the same time. Then she smirked at me and said, "Watch this." Almost immediately, a horde of elderly women converged on her from all directions:

"Ach. That would make such a pretty picture!"
"Looks like you've got your hands full! I bet that brings back memories!"
"They look good on you! You're a natural!"
"You really should talk to your husband about having another one!"


...and so on.

Eventually, she handed them back and said quietly, "Better than birth control."
posted by zarq at 8:11 AM on January 13, 2012 [15 favorites]


Haaaaaa, that's great.
posted by ThePinkSuperhero at 8:13 AM on January 13, 2012


More recently, they've been at the forefront of most of the regressive initiatives: fighting marriage equality, fighting reproductive freedom, protecting child rapists.

Man, those sound like some bad people. I'm glad the courts can't force my church to hire one of them.
posted by Bulgaroktonos at 8:14 AM on January 13, 2012 [3 favorites]


One of the more disappointing parts of this decision is that the woman wasn't fired for her narcolepsy per se, but for the more specious reasoning that she'd filed a lawsuit after suffering injurious discrimination, and the official line of the church is that disputes have to be resolved within the church (you know, where they make the rules).

And while I can understand the idea that this protects religions from interference, it does underscore the need to remove all public moneys from benefiting churches in any way — civil money needs civil rights, including protection from discrimination over ability or identity. Otherwise, that money tacitly endorses the establishments to which it flows.
posted by klangklangston at 8:22 AM on January 13, 2012 [3 favorites]


klangklangston: " it does underscore the need to remove all public moneys from benefiting churches in any way"

What's your opinion on Homeland Security grants, specifically used for increased security measures? I ask because I know that a number of synagogues in my area have received several thousand dollars apiece which had to be spent on things like security systems (cameras at entrances, special door locks, concrete security planters, etc. And while I'm in favor of keeping religious institutions free of taxpayer funds, I'm very much in favor of DHS grants that must be used for specific, public safety purposes.
posted by zarq at 8:31 AM on January 13, 2012


Otherwise, that money tacitly endorses the establishments to which it flows.

Historically, tacit endorsement is considered the best we can do on properly separating church and state. Much better than withholding, which punishes religions for being religions.
posted by smackfu at 8:33 AM on January 13, 2012


The ministerial exception has been used to allow churches to retaliate against whistleblowers who report sexual abuse.

I don't understand this or how it is relevant to the post. What am I missing?
posted by yerfatma at 8:40 AM on January 13, 2012


There's a VERY simple solution for all this.

"Ministerial" staff should all be volunteers, without financial or other traditional employment benefit. That way, "employees" are protected as they should be, and the 'rights' of the church to pick their ministers is preserved.

Next, I'll solve the whole Israel/Palestine thing....
posted by mikelieman at 8:42 AM on January 13, 2012 [1 favorite]


What bothers me about this is that it would appear to be trivial to slip in a "ministerial duty" into practically any job description.
posted by CBrachyrhynchos at 8:55 AM on January 13, 2012


So now you've enforced a vow of poverty for religious leaders. That's freedom!
posted by smackfu at 8:56 AM on January 13, 2012 [1 favorite]


The essence of religion is that it is something fundamental by which individuals and communities order their lives. The idea that some jobs are "not religious," is antithetical to a lot of religions.

One of the fundamental tenets of the Protestant Reformation is a doctrine called "the priesthood of all believers," which means that while preachers may be exercising particular gifts with a more public connection to the church's mission, janitors and secretaries are every bit as much Christian ministers as preachers.

What bothers me about this is that it would appear to be trivial to slip in a "ministerial duty" into practically any job description.

Comments like this are astonishingly ignorant of how Protestant Christian churches (for instance) view the responsibilities of their members. Every member of the church is supposed to be exercising ministerial duties. The idea that this would be done as a perfunctory sham to satisfy the government when it's been articulated as a central part of their identity for centuries before these issues were on the table is beyond ridiculous.
posted by straight at 9:03 AM on January 13, 2012


smackfu: "So now you've enforced a vow of poverty for religious leaders. That's freedom!"

It's better than slavery. Granted, not by much....
posted by zarq at 9:16 AM on January 13, 2012


straight: " One of the fundamental tenets of the Protestant Reformation is a doctrine called "the priesthood of all believers," which means that while preachers may be exercising particular gifts with a more public connection to the church's mission, janitors and secretaries are every bit as much Christian ministers as preachers. "

Are they formally ordained? The court took that into account in its decision.
posted by zarq at 9:19 AM on January 13, 2012


Comments like this are astonishingly ignorant of how Protestant Christian churches (for instance) view the responsibilities of their members.

Not to mention Wahhabism.
posted by stupidsexyFlanders at 9:20 AM on January 13, 2012


More recently, they've been at the forefront of most of the regressive initiatives: fighting marriage equality, fighting reproductive freedom, protecting child rapists.

As to the first two, I was not under the impression that progressivism meant falling in line on every single issue that progressives think is important, regardless of one's own conscience on the issue. I was also not under the impression that progressivism was primarily about what one does with one's genitals, rather than being about extending the principle that all people are equal in practical ways by addressing systemic inequalities of economic, social, and political power that affect historically marginalized people groups.

I'm not saying that the churches which are fighting, say, marriage equality, are right to do so. I am, however, saying that at least some churches and some otherwise decent, religious people oppose things like same-sex marriage because they have made an assessment in good faith of their religious and moral beliefs, and found that they are not compatible with same-sex marriage. In and of itself, that doesn't make them the Enemy of All Things Progressive, unless you're of the belief that we've solved all the other problems.

I'm not saying that same-sex marriage is less important than widening income inequality or the cycle of poverty or hydrofracking or whatever, and I'm sure that there are some people out there to whom it's more important than any of those things. But if you're one of those people, and you can afford to turn away help on all of the other issues that are important to progressives, I'd love to move to where you live.
posted by gauche at 9:26 AM on January 13, 2012 [3 favorites]


I'm curious here: OK, I get that First Baptist does not have to hire a Godless Atheist as a "minister."

Does the American Association for the Advancement of Godless Atheism have to hire evangelical Christians?
posted by tyllwin at 9:26 AM on January 13, 2012 [1 favorite]


The ministerial exception has been used to allow churches to retaliate against whistleblowers who report sexual abuse.

I don't understand this or how it is relevant to the post. What am I missing?
posted by yerfatma at 8:40 AM on January 13 [+] [!]

***

Sorry -- to clarify, the reasoning the Supreme Court used in this case is pretty much identical to reasoning other courts have used to say that churches have the right to engage in employment retaliation against whistleblowers. In fact, there's a case about a church whistleblower currently pending before the Supreme Court that will probably be disposed of along the same lines as the disability case.
posted by yarly at 9:31 AM on January 13, 2012


"Does the American Association for the Advancement of Godless Atheism have to hire evangelical Christians?"

Is the AAAGA, a religion?
posted by oddman at 9:38 AM on January 13, 2012


I'm curious here: OK, I get that First Baptist does not have to hire a Godless Atheist as a "minister."

Does the American Association for the Advancement of Godless Atheism have to hire evangelical Christians?


No - Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.

Note: there's no part of this clause that specifies Baptists or Atheists.
posted by The 10th Regiment of Foot at 9:40 AM on January 13, 2012


at least some churches and some otherwise decent, religious people oppose things like same-sex marriage because they have made an assessment in good faith of their religious and moral beliefs, and found that they are not compatible with same-sex marriage

Bigotry is not improved by sincerity. Nor by an endorsement from one's deity.
posted by Trurl at 9:46 AM on January 13, 2012 [2 favorites]


straight: I wasn't referring to spiritual obligations, that apply to almost anyone of faith at any job. I was referring specifically to the relationship between employer and employee where things like a bona fide job requirement written into the description matters.
posted by CBrachyrhynchos at 9:52 AM on January 13, 2012


Bigotry is not improved by sincerity.

This statement should probably be applied to comments by some metafilter users who tend to apply intolerant beliefs or actions of one select group of religious adherents to religious adherents in general.
posted by The 10th Regiment of Foot at 9:52 AM on January 13, 2012 [2 favorites]


Again, I'm not saying they are right, or that there isn't bigotry in the decision to oppose same-sex marriage.

What I'm saying, is that if you took all of the bigots out of the progressive movement, you would have an empty room. This is just as true today as it has been at any other time in history.

I am tempted to say that if you filled a room with every progressive in history, and ejected everyone who was bigoted about something, the only person left would be Jesus. But that assumes what I'm trying to prove so I won't.
posted by gauche at 9:54 AM on January 13, 2012 [2 favorites]


I am, however, saying that at least some churches and some otherwise decent, religious people oppose things like same-sex marriage because they have made an assessment in good faith of their religious and moral beliefs, and found that they are not compatible with same-sex marriage.

How rational and high-minded of them.
posted by blucevalo at 10:01 AM on January 13, 2012 [1 favorite]


What bothers me about this is that it would appear to be trivial to slip in a "ministerial duty" into practically any job description.

Justices Alito and Kagan seem to note this possibility as well, and their concurrence more or less addresses this point.

Also, as a side note, what happened to the plaintiff in this case stinks. But it's just one of those icky things we tolerate because we want to enjoy Constitutional protections.
posted by MoonOrb at 10:02 AM on January 13, 2012


Basically, I'm concerned about the willingness of congregations to compete with and take over institutions that provide non-religious services, and then claiming broad exemptions to anti-discrimination law in providing those services.
posted by CBrachyrhynchos at 10:03 AM on January 13, 2012 [1 favorite]


How rational and high-minded of them.

I'm pretty sure that freedom of conscience unfortunately includes freedom of conscience even for people you disagree with. In fact, I'm pretty sure it's a hallmark of liberalism to tolerate the good-faith efforts of others to wrestle with moral issues and arrive at different conclusions.

That's not to say it's not important to keep arguing with them, and it's not, again, to say that same-sex marriage isn't an important issue.

Anyway I've got to step away for a while.
posted by gauche at 10:09 AM on January 13, 2012 [1 favorite]


This statement should probably be applied to comments by some metafilter users who tend to apply intolerant beliefs or actions of one select group of religious adherents to religious adherents in general.

The standard usage is "a few bad apples".
posted by Trurl at 10:13 AM on January 13, 2012


I'm pretty sure that freedom of conscience unfortunately includes freedom of conscience even for people you disagree with. In fact, I'm pretty sure it's a hallmark of liberalism to tolerate the good-faith efforts of others to wrestle with moral issues and arrive at different conclusions.

If I saw evidence of good-faith wrestling rather than an enormous wellspring of vindictive hatred and coordinated efforts to demonize same-sex marriage and legislate me and my spouse and other LGBT citizens into second-citizen outcast status, none of which contemplate mere disagreement with those that they disagree with, but rather the financing and systematic adoption of legal and other mechanisms to make sure that we have as few of the rights, privileges, and benefits that they have as possible, I'd be a lot more liberal.

If your argument is that that attitude makes me illiberal, regressive, and intolerant, then, yes, I suppose it does. It's my life that I'm being, as you put it, so illiberal about. It's more than just an "important issue" to me.
posted by blucevalo at 10:47 AM on January 13, 2012 [3 favorites]


Very important quote at the end of the syllabus:

The Court expresses no view on whether the exception bars other types of suits.
posted by gagglezoomer at 10:56 AM on January 13, 2012


straight: I wasn't referring to spiritual obligations, that apply to almost anyone of faith at any job. I was referring specifically to the relationship between employer and employee where things like a bona fide job requirement written into the description matters.

But some churches and theologians would look to doctrines like the priesthood of all believers and say that having a janitor or a secretary who faithfully practice these spiritual obligations in the workplace is as much or more important to the church's mission than having a preacher who does so.

They might believe that the janitor and the secretary have a more important function as role-models than the preacher does, as members of the congregation are more likely to have jobs like the secretary's or the janitor's than like the preacher's.

Other people might disagree with this concept, but it seems completely unconstitutional for the government to take a side in that discussion.
posted by straight at 10:59 AM on January 13, 2012


Again, what you are describing straight, are lay leaders, and they do not seem to be covered by this ruling. The teacher in question had completed training and had been designated "Minister of Teaching, Commissioned." This was not an informal title and she was no longer a lay leader.
posted by zarq at 11:03 AM on January 13, 2012


It's separation of church and state, not "separation of church and state unless I don't agree with the church's practices in which case the state can totally step in and dictate to the church."

I look forward to the Supreme Court's support for exemption from drug laws for Rastafarians and Native American religious groups.

I'm not saying that the churches which are fighting, say, marriage equality, are right to do so. I am, however, saying that at least some churches and some otherwise decent, religious people oppose things like same-sex marriage because they have made an assessment in good faith of their religious and moral beliefs, and found that they are not compatible with same-sex marriage. In and of itself, that doesn't make them the Enemy of All Things Progressive, unless you're of the belief that we've solved all the other problems.

Well, I guess if it's only the gays that have to stay at the back of the bus, that's OK. Are you as forgiving of people who have come to the conclusion God tells them women belong there, too?
posted by rodgerd at 11:04 AM on January 13, 2012 [1 favorite]


Again, what you are describing straight, are lay leaders, and they do not seem to be covered by this ruling. The teacher in question had completed training and had been designated "Minister of Teaching, Commissioned." This was not an informal title and she was no longer a lay leader.

I understand. I'm saying that far from over-reaching, this ruling doesn't go nearly far enough to safeguard the religious freedom guaranteed in the first amendment.
posted by straight at 11:13 AM on January 13, 2012


straight: But some churches and theologians would look to doctrines like the priesthood of all believers and say that having a janitor or a secretary who faithfully practice these spiritual obligations in the workplace is as much or more important to the church's mission than having a preacher who does so.

At what point do you say that frying a chicken patty or selling an XBox is essential to the mission of a self-proclaimed "faith-based" business, and therefore the business can discriminate on the basis of religion, sex, race, age, and disability?
posted by CBrachyrhynchos at 11:17 AM on January 13, 2012


I look forward to the Supreme Court's support for exemption from drug laws for Rastafarians and Native American religious groups.

Actually, Native American religious groups already do have an exemption from the laws against using peyote, but it's legislatively defined in 42 U.S.C. § 1996a rather than being because of anything the Supreme Court ruled.
posted by strangely stunted trees at 11:19 AM on January 13, 2012 [1 favorite]


Why do people keep saying "religions" when they only mean a couple of specific ones?

This is the internet. People do that in every single thread tangentially related to religion.

As a liberal socialist transgendered devout polytheist, I've finally stopped bothering to fight it or complain and just assume anyone who thinks that way is a closed-minded blowhard.
posted by Foosnark at 11:20 AM on January 13, 2012 [2 favorites]


I look forward to the Supreme Court's support for exemption from drug laws for Rastafarians and Native American religious groups.

As to Native Americans, they are specifically protected by law(s).

As for Rastafarians...
posted by The 10th Regiment of Foot at 11:29 AM on January 13, 2012


> It would be nice if the OP had done so, or at least positioned this post better.

The OP tried to fix it.
posted by Evilspork at 11:29 AM on January 13, 2012


I'm reminded of the Ocean Grove Camp Association case here. There has to be some point at which we say, "you can get the rights and privileges of an exclusive religious group, or you can get the tax benefits and subsidies of a public accommodation, but you can't pick and choose between the two.""
posted by CBrachyrhynchos at 12:04 PM on January 13, 2012


However: if it makes a profit, it is a business, not a church.

Yup, mie, I'm with that all the way.

Either there's an individual getting rich (televangelists) or an institution (LDS, Catholic.)

Most churches behave like corporations, and should be taxed. Besides, if religion is all about helping and consideration for your fellow man, as well as concern for children, why don't they pay taxes and help support social services?

Suffer little children, indeed.
posted by BlueHorse at 3:32 PM on January 13, 2012


There always seems to be a justification for "separation of church and state" whenever any ruling is made.

For example, this ruling. I understand this ruling and, begrudgingly, agree with it. Slippery slope and all...

But why are political statements and politicking from churches ( a la Jerry Falwell, Pat Robertson, the LDS involvement in ant-gay-marriage initiatives, etc.) routinely ignored. How on earth do those churches get to keep their tax-exempt status?

The deal we made a long time ago is simple: the government and the churches agreed to stay out of each others' yards. Government runs government and the church gets to freely practice religion, and NOT PAY TAXES - provided it sticks to religion.

If most people who vehemently railed for a separation between church and state really believed what they said, there would be a whole lot of churches paying taxes.
posted by Benny Andajetz at 4:32 PM on January 13, 2012 [2 favorites]


Most churches behave like corporations

Behave like corporations how? Are there churches paying out dividends to all their members? And could you tell me where it is?
posted by ThePinkSuperhero at 4:41 PM on January 13, 2012


Just because you think hamburgers are a human right doesn't mean the Hindu temple around the corner has to employ carnivores.

To take an Indian perspective, it is difficult to see the Indian Supreme Court condoning, so to speak, any attempt at allowing discrimination in favour of vegetarians specifically. (Because vegetarianism runs along caste lines, discrimination on the basis of what you eat is a real problem) While the right to practise and propagate religion and to establish educational institutions for this purpose are considered Fundamental Rights, there is no equivalent right to run religious institutions as you fit.

The state can, and has on many past occasions, taken over the running of temples and mosques if there is sufficient ground to believe that there has been discrimination in the running of a temple; this is often seen as a good thing, as a way to get over caste and to deliver other forms of historical "social justice"
posted by the cydonian at 5:14 PM on January 13, 2012 [2 favorites]


"What's your opinion on Homeland Security grants, specifically used for increased security measures? I ask because I know that a number of synagogues in my area have received several thousand dollars apiece which had to be spent on things like security systems (cameras at entrances, special door locks, concrete security planters, etc. And while I'm in favor of keeping religious institutions free of taxpayer funds, I'm very much in favor of DHS grants that must be used for specific, public safety purposes."

I'm against them, though I'm not sure how much is just because I'm annoyed at this ruling. I'd say that being safer would encourage more people to go, and securing private property — rather than public — is the responsibility of private owners. Obviously, as a vacillating, practical man, I'd have much less of a problem with my tax dollars protecting a synagogue full of reformed Jews who advocate inclusion and tolerance than hardline regressive Lubavichers or whomever.
posted by klangklangston at 8:34 AM on January 14, 2012


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