The hedge of separation

John Garvey, the president of Catholic University, has written an op-ed piece in which he explains why his institution is joining scores of other Catholic groups in filing a lawsuit against the contraceptive & abortifacient mandate in Obamacare.  In the course of his essay (in which he mentions also the Hossana-Tabor case involving the LCMS school), Garvey discusses the “wall of separation of church and state,” finding the metaphor’s origins not in Thomas Jefferson (who wanted to protect the state from the church) but, earlier, in Roger Williams (who wanted to protect the church from the state):

When the Supreme Court first considered the issue of aid to parochial schools in the 1947 case Everson v. Board of Education , it invoked separation as a limiting principle. The court quoted Thomas Jefferson’s 1802 letter to the Baptists of Danbury, Conn.: “I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.”

Jefferson was a child of the Enlightenment, suspicious of organized religion. He believed that efforts to establish an official religion led to persecution and civil war.

The metaphor was not original to Jefferson, though. Roger Williams, who founded the colony of Rhode Island on principles of religious tolerance, used it in 1644. History has shown, he observed, that when churches “have opened a gap in the hedge or wall of separation between the garden of the church and the wilderness of the world, God hath ever broke down the wall . . . and made his garden a wilderness.”

Williams had different reasons than Jefferson for preaching separation. Jefferson thought that religion was bad for government. Williams thought that mixing church and state was bad for the church.

These two perspectives often give us the same results. They both warn against tax support for churches and against prayers composed by public school boards. But Williams’s theological metaphor may have been more influential than Jefferson’s political one in the adoption of the First Amendment.

via For the government, what counts as Catholic? – The Washington Post.

Not just a “wall” of separation but a “hedge” of separation.  The church is a garden.  The world is a wilderness.  Making a hole in the hedge is punished by God who turns the garden into a wilderness.  Powerful metaphors.  Apply them to current issues.

And yet, is Rogers’ formulation adequate?  He was a Baptist, so we see here elements of the doctrine of separation from the world.  Is the secular arena more than just a wilderness?

Officially re-defining religion

The Constitution carves out space for religion so that it does not fall under government jurisdiction.  So, as Charles Krauthammer points out, the  government, which currently demands jurisdiction over everything, is re-defining religion:

And thus, the word came forth from [Health & Human Services director Katherine] Sebelius decreeing the exact criteria required (a) to meet her definition of “religious” and thus (b) to qualify for a modicum of independence from newly enacted state control of American health care, under which the aforementioned Sebelius and her phalanx of experts determine everything — from who is to be covered, to which treatments are to be guaranteed free of charge.





via The Gospel according to Obama – The Washington Post.

We see this same new definition in the government’s failed litigation in the Hosanna-Tabor case.  It’s basically the same one used in the former Soviet Union, which provided for “religious freedom” in its constitution, construed as private interior beliefs, while at the same time forbidding evangelism, worship, education, religious child-raising, and any other external expression of religion in actual life.

How our government thinks of religion

Joseph Knippenberg at First Thoughts finds a telling quotation from Leondra Kruger, Assistant to the Solicitor General, arguing at the Supreme Court in the Hosanna-Tabor case:

The government’s interest extends in this case beyond the fact that this is a retaliation to the fact that this is not a church operating internally to promulgate and express religious belief internally. It is a church that has decided to open its doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws.

Mr. Knippenberg points out that this mindset helps explain why the government is requiring religious institutions except for churches to provide their employees free Morning After pills and birth control devices, even if doing so violates their religious beliefs:

The reasoning here is perfectly consistent with the thought animating the narrowly-drawn exemption to the widely reviled contraceptive mandate. Whenever a church or house of worship ceases to be simply inward-looking, when it in any way engages or serves the wider public, it becomes subject to much the same sort of government regulation as any secular entity. Relgious freedom is a purely private freedom. The moment you enter the public sphere, you’re subject to regulation. The public sphere is by definition secular, not pluralistic, with its tone, terms, and limits set by governmental authority. . . .

The logic of its argument in these two cases is that any religious institution that is public-serving has to behave in many instances (those determined by the state) like every other public-serving organization. The religious presence in the public square can’t be distinctive except in ways the government permits.

Pursued consistently across the board (and the Obama Administration hasn’t yet done this), this approach would gravely threaten religious freedom. It’s one thing to say (as some have, though I disagree with them), that if you take public dollars, you have to be thoroughly secular in your operation. Anyone can escape the secularizing effect of public money by refusing to accept it. It’s quite another to say that if you serve the public, your religiosity can’t permeate your efforts and your organization. This would require almost every religious organization I know of to choose between reaching out as a bearer of good news and a helper of widows and orphans and remaining faithful to the very understanding that inspired its outreach. Under these circumstances, a church can’t remain a church.

via The Obama Admininstration’s Crabbed Vision of Religious Liberty » First Thoughts | A First Things Blog.

LCMS before the Supreme Court

The case of Hosanna-Tabor Evangelical Lutheran School vs. the EEOC is being argued before the Supreme Court.   J. Christian Adams sees the Justice Department’s case as being a major assault on religious liberty.  Here is his take:

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.

Should ministers have any legal protections?

A reader of this blog with quite a bit of expertise on employment law and who is also sensitive to the religious issues involved  has sent me what I think is the best analysis I have seen of the Hosanna-Tabor v. EEOC case currently before the Supreme Court, having to do with a Lutheran school that fired a called teacher because of her disability, then claimed a “ministerial exemption” from having to follow the disability laws because the employee was a “minister.”   Here is part of what he said, which I post with his permission (honoring also his request for anonymity):

The argument of Hosanna-Tabor that their action was based on religious reasons seems to be cooked up post-facto, and so I imagine that Ms. Perich would be able to successfully prove them pretextual–which then puts the burden of proof back upon the school to show that they are not in fact pretextual. Since their case as represented in the court documents doesn’t seem strong in this area, I think they ought to lose the case, if it is argued on those lines.

This also raises the question: Can a church or religious institution justify any action on the basis of religious motive? It seems to me Hosanna-Tabor already stepped outside the recognized limits of LCMS ecclesiology by purporting to treat a woman teacher at a Christian school as a “minister,” when, quite properly according to their theology, the priestly office is limited to men in the LCMS. The application of this category to religious school teachers only, it seems, to circumvent labor laws, strikes me as both cynical and irreligious. Can any employment action can be dragged into the category of religious conviction when the stated institutional convictions of the supervising denomination are clearly at odds with it? This is the elephant in the room which the EEOC has been mighty delicate not to take a shot at.

I worry that the outcome of this case, whether Hosanna-Tabor wins or loses, will be to confuse 1st Amendment jurisprudence and set bad precedents in one direction or another.

Exactly.  However the course rules, harmful precedents are going to be set.   This raises another question:  Do ministers have any legal protections?  If the ruling goes in favor of the school, that would seem to mean that churches and other religious organizations could mistreat their pastors and probably other employees with impunity, claiming a “ministerial exception” that makes them exempt from honoring the legal rights that other citizens have.

I know the New Testament prohibitions about going to court to solve church disputes–it’s much better to be defrauded–but it’s possible for a church to obey the law in regards to its ministers without anyone going to court.  The Reformation battled the notion that the church needs only follow canon law and not the laws of the state, addressing the situation  that priests and nuns were subject only to canon law, even when they committed overt crimes.  The doctrine of vocation taught that the laws of the state also were instruments of God’s social order, and that the church didn’t have the right to impose a competing legal system of its own.

We have the rights of the church vs. the rights of the pastors.  (Since the plaintiff here is a teacher, perhaps many pastors haven’t been seeing  how the case would also apply to them.)  Or should pastors claim no legal rights other than those of the church?

Different takes on the LCMS school case

Here are two different framings of the Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC case that was just heard before the Supreme Court.  The first shows why so many religious groups are backing the LCMS school:
Washington Wants a Say Over Your Minister–Wall Street Journal

The second is slanted towards the rights of the disabled:

Supreme Court Weighs Rights Of Parochial-School Teachers : NPR.

Then there are many confessional Lutherans who disapprove of teachers being conflated with pastors and so oppose the congregation’s claim for a “ministerial exception.”

I suspect there are also LCMS teachers and others who support the notion of the teacher’s “call” and yet sympathize with her for being discriminated against because of her disability.

How do you think the court should rule, and how do you think it will rule?  What measures should the church body take to address these issues?