Religion is above the law

The Supreme Court just issued a ruling in  Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission. It’s an interesting situation, and the decision touches on some issues I think are really important — though sadly, I think the decision is misguided. The specifics of the case are a bit confusing, in that there’s an obvious religious angle while it’s primarily about disability discrimination in employment. SCOTUSblog has a good summary:

In June 2004, before the next term opened, [Cheryl Perich, a teacher at a Lutheran elementary school] suddenly became ill and was hospitalized. She ultimately was diagnosed with narcolepsy, and took a leave for the following school year. In January 2005, she told the school she would be cleared to return to work in February.  The school, however, decided that her health would not permit her return, and a replacement was hired to teach third and fourth grades.  School officials then decided it would be best if she resigned.  Ultimately, Perich and school leaders came into sharp conflict, when she threatened to sue, claiming that the refusal to retain her was based on her illness, and thus the school would be charged with violating the Americans with Disabilities Act.  When she tried to return to school, she was fired; she was told that she was let go because of her threat to sue, which violated a Lutheran religious tenet that members of the faith should resolve internally their disagreements.

The court found for the school, finding a “ministerial exception” to employment discrimination laws. The argument they make was that First Amendment religious freedom requires that religions be free to choose their leaders. Most of the controversy here focuses on whether teacher in question was really a “minister,” but I’m sort of okay with saying she was — she taught secular subjects primarily, but did lead the class in prayers a couple times a day and taught one small religious class.  My bigger issue is with the idea that there’s a ministerial exception at all.

I should say, there is one obvious way in which religious groups discriminate in hiring that I’m totally fine with, and that’s that they hire people of their own religion. I’m fine with a ministerial “exception” to laws against employment discrimination based on religion. But that comes out of my general ideas about discrimination. Race is usually irrelevant to performing your job, so not hiring someone because of their race is unfair. We do, however, make an exception when it’s relevant. No one’s going to be upset because a casting director hires a black actor to play Coalhouse Walker Jr. or a white actor to play Macbeth. Similarly, offices of religious authority are some of the few jobs where your religion really is relevant to doing the job well, so of course it should be considered.

But there’s no reason that the disability of a teacher is more important to a religious school than a secular school. And the final issue, that of whether one shares this particular, apparently sacred (read: pulled-out-of-their-asses) belief that it’s against Lutheran Christianity for a person to sue a Lutheran organization, is obviously not related to qualification for the job Perich held. So why a religious exemption?

The Supreme Court ruled in Employment Division v. Smith that “a neutral law of generally applicability” could be enforced even when doing so violated someone’s religion. And honestly, this makes perfect sense. It would be absurd to operate under any other standard. Satanists can’t just say, “But our religious beliefs require that we kill people!” and get exempted from murder laws. This has also been applied to a variety of less blindingly absurd things — paying taxes, being required to remove veils for driver’s license pictures, etc. Religious freedom doesn’t mean that religious people get free reign to break all the laws they feel like. (…As Hosanna-Tabor Lutheran Church and School was obviously trying to do in this situation.) It simply means that the government can’t ban a religion itself, and can’t ban other things just because they are part of a religion they don’t like.

Let’s say that a religious school wanted to hire pedophiles to teach kindergarten. (Hypothetically! Just a hypothetical, yeah….) Should we grant that school an exemption from laws that protect children from molestation? I think most people would be horrified at that prospect. What about if they wanted to hire only white people? In this continuum of otherwise illegal hiring metrics, where do you draw the line?  I think there’s an easy way — you draw the same line you would with a secular private school, with the single sensible exception of making sure they believe the religion if they’re going to be teaching it.

I do understand that there are cases where fully removing discrimination exceptions would have a big impact. Should we make the Catholic Church hire female priests? Well, I would say yes. “My religion told me it’s okay to discriminate on gender” isn’t any better of an excuse than “My religion told me it’s okay to murder.” Obviously the degree of harm caused by letting them get away with it is less, but I don’t think the logic is any better.

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34 Comments

  1. Sadly, logic isn’t always employed when we thank through these sort of things. It’s more like “this is what I want to do, and I don’t care why I shouldn’t, because I’m American and my opinions/thoughts/values/etc. matter!”

    Something like that. =)

  2. And by “thank through”, I meant “think through.”

  3. Maybe so, Adrian, but I tend to expect a higher level of intellectual rigor from the Supreme Court. It’s one thing for this church/school group to think it was reasonable to say, “Oh, didn’t you know, suing us is against Christianity now!” but it’s another thing for SCOTUS to give total legal exception for religious groups to use any rubric they want to hire anyone they decide to call a minister.

  4. Jojo the hun

     /  January 12, 2012 at 8:13 pm

    Why shouldn’t the church school have been allowed to hire who they wish?

  5. Aristarchus

     /  January 12, 2012 at 8:29 pm

    For the same reason every other school shouldn’t be allowed to hire who they wish…

  6. I think that, in general, private religious organizations should be free to hire whoever they want to preach and to teach. That’s part of the right of free association, and it helps us too. (We certainly don’t want an atheist organization being forced to hire a Christian as its president!) If advancing specific beliefs was part of the job description, and a church or a Sunday school became aware that a teacher didn’t personally hold those beliefs, it would be OK in my mind to fire them.

    That said, I think that this case wasn’t an example of that principle. It was retaliation, plain and simple: the school fired her because it didn’t want to deal with her health issues, and then made up this absurd Lutherans-don’t-sue-Lutherans rule as a fig leaf to cover the real reason for its discrimination.

  7. Adam, the problem I have with the case is that the exception wasn’t just to religious discrimination laws. It wasn’t about making sure you hired someone who was a member of the faith. It’s an exemption from random laws about how you treat the disabled that don’t in any way reduce your ability to practice your faith. (Unless your faith holds discrimination against the disabled as a major tenet, in which case… oh well…)

    The Lutherans-don’t-sue-Lutherans thing is complete idiocy, but my understanding is that the SC made it clear that that (disagreeing with the religion) wasn’t the reason they were ruling the way they were. They also said that this rule about hiring you want doesn’t necessarily apply to other things (like violating someone’s employment contract), but I really don’t see any reason the logic wouldn’t apply there.

  8. Aristarchus

     /  January 12, 2012 at 10:11 pm

    NFQ, I’m with you on the general principle – hiring people of your religion is ok, but exemptions to other employment laws don’t make sense. But I still think you have to figure out what to do with the belief-in-not-suing-us sort of thing. What if the religion holds quitting when you can no longer perform the job as a fundamental tenet? Then asking for your job back after disability leave would be grounds for firing under that logic, unrelated to the disability itself. What if the religion really is racist? What if it just believes that matters of church governance (in which it includes its employment) should never be taken to secular authorities?

    I think on some intuitive level, “we believe you can’t sue us” is fundamentally different from “we believe in the trinity” or whatever, but in law you need some sort of legal standard for the distinction, and I can’t figure out what it could be. (The best I can do is something analogous to what we expect from the government – that laws banning religious practices must be broad, general laws passed for some reason other than stopping the religion. I would want only beliefs that weren’t motivated by a desire for legal exemptions to be considered. But I still don’t think that standard works. I mean, the Catholic church has been picking it’s beliefs to maximize secular power for millenia… I have no idea how you could separate them.)

  9. Jojo the hun

     /  January 12, 2012 at 10:33 pm

    Why shouldn’t the church school have been allowed to hire who they wish?

    “For the same reason every other school shouldn’t be allowed to hire who they wish…”

    Which is…?

  10. Aristarchus

     /  January 12, 2012 at 11:16 pm

    Jojo, do you really not understand why we have rules against hiring people based on their skin color, nationality, etc.? This is a complete tangent, so I’m going to be brief and not respond further.

    It’s because those aspects are irrelevant to the job, and it’s deeply unfair to people to force them to live lives of constant discrimination when they have done nothing to deserve it. It creates boundaries within society, social friction, and a generally dysfunctional climate. You could try the veil of ignorance as a means of judging – if you didn’t know what color your skin would be in a future life, would you prefer a society where racial discrimination is ok? or one where it’s banned?

  11. Jojo the hun

     /  January 13, 2012 at 1:05 am

    Well it is a complete tangent. I don’t know why you are talking about skin color, which has nothing to do with the case as described above.

  12. So suppose you forced us Catholics to “hire” a woman as “priest”. According to Catholic doctrine most of the rituals she would preside over would be vacuous play-acting, like you think they are even with a real priest. Now the thing is, many of them have participation of the faithful. In particular that participation could involve asserting things that in that situation would not be true according to Catholic doctrine. So to be perfectly clear here: You actually believe Catholics should be forced, under color of law, to profess beliefs and participate in rituals they don’t believe in? And I suppose you haven’t suddenly changed your beliefs about doing same to atheists?

    Also, for the purposes of your one exception, who gets to decide who belongs to what religion? If it’s the respective church your scheme breaks down because the female “priest” would incur excommunication simply by pretending to be a priest and that was the rule long before you came up with your scheme. But if everyone determines their own religion for discrimination purposes, do I get to sue some atheist organization for not hiring me if I tell them I identify as an atheist who just happens to believe in God?

  13. The flawed premise of this post is that “religion is above the law.” That is not true. This case affirms what the First Amendment of the US Constitution protects: the right of the Church and religion in general to operate free from the interference of the government.

    There are more thoughts about this case on my blog site, for those who are interested in the “church side” of things on this:

    http://cyberbrethren.com/2012/01/13/more-thoughts-on-the-tabor-supreme-court-decision-note-inside-baseball-type-lutheran-stuff/

  14. Aristarchus

     /  January 13, 2012 at 2:02 pm

    @Jojo: The case has everything to do with skin color. Quoting the site NFQ linked above:

    the Supreme Court on Wednesday unanimously gave its blessing — for the first time — to a “ministerial exception” to federal, state, and local laws against virtually all forms of discrimination on the job

    That includes discrimination on race, gender, etc.

  15. @Gilbert: You seem to have missed the central argument of my post. Let’s look at an example: some sects of Islam hold that it is immoral and against their religion to pay income tax (it is not in line with Shariah). Should we allow a blanket tax exemption for any Muslim who wants to claim it? You might also consider the satanic murder rituals I mentioned in the post. Should we allow people to kill with impunity, simply because their religion commands it?

    My point is, “my religion says I have to” is not a sufficient excuse to behave however you want, and it has never been seen as such (before this decision) as far as I understand. In some cases, e.g. ritual wine drinking by minors, the issue is seen as small enough that it can be ignored by the government. But that’s a favor done in the spirit of free exercise of religion, not a legal right mandated by free exercise.

    I think you’re right that it’s a problem when we essentially have to let people decide for themselves what their religion is, but I think that’s more revealing about the nature of religion than anything else. After all, this Lutheran group basically just made up a new tenet of Lutheranism to try to shimmy out of their obligation to follow the Americans with Disabilities Act. Who are we to tell them that that’s not part of being Lutheran, right? … The thing is, like with the Muslim income tax example or the Satanist ritual murders, at some point the law just shouldn’t care what your religion says. (Whatever happened to “render unto Caesar,” eh?)

    @Paul: Do you see any limits on what religious groups can do in the name of their religion? If the Catholic church says, “Pedophilia is actually part of our religious practice,” should abused children not be able to prosecute Catholic priests who molested them?

  16. Oh, I get your point quite well, I just recognize it as bunk.

    Like almost all rights, religious freedom sometimes will have to be balanced against other interests. But the dichotomy between always letting the other interest win (basically your proposal) and always letting religious freedom win (the supposed alternative) is patently false. Any serious scheme must get a little messier. Often religious freedom will outweigh the other interest not as a favor, but as a matter of right, because it is just more important than the other interest in that context. And sometimes it won’t. Surprise, complex questions sometimes don’t have universal simple solutions. And in fact you wouldn’t advocate such universal simple solutions for any other right. For example, the right to life would prevent government agents from shooting through you even if they have good reason to shoot at whatever is behind you.

    However, you seem to have missed my argument: Your proposed policy would not only prohibit religiously mandated behavior, it would also effectively mandate specific religious behavior. And not only behavior that is religiously prohibited but also behavior that is itself religious.

    Your “we essentially have to let people decide for themselves what their religion is” effectively takes back the one exception you had originally granted. In a way, that is consistent. It gives up the pretense of respecting free exercise where there was no substance in the first place.

  17. Boy, you got me, Gilbert. I don’t respect the right of fundamentalist Muslims to refuse to pay their income taxes. I don’t respect the right of Catholics to allow priests to molest altar boys. If “free exercise of religion” means allowing people to do literally anything they want, no matter how unjust and no matter how much it violates the laws of the land, then I do not support that kind of “free exercise” of religion.

    I believe we should allow people to hold whatever beliefs about the natural and supernatural world they hold. And I believe we should allow people reasonable leeway to hold worship services to reflect those beliefs as they see fit. I don’t think that “free exercise” has ever been intended or interpreted to mean, “If you want to rob a bank, you can say your religion commanded you to do it and then you can’t be arrested for it.” But it seems like that’s what you want it to mean.

  18. Aristarchus

     /  January 13, 2012 at 6:38 pm

    Gilbert, I agree with you on the part about the exception NFQ wants (and which I agree with) being tricky, since requiring the priest to believe that only women should be priests effectively also bans women from being priests. (This is the problem I raised before, and I still don’t see a good solution.)

    But what do you propose as the alternative. You seem to be saying the court should look at how much the law would force people to go against their religion, and balance it against whatever the other societal good is. But then, who decides what the balance is and what is how important? I’d be much more ok with an exemption like the one for underage drinking being written into the law by the legislature than added by a court.

    But there are bigger problems. In this case, it seems like it would lead to the court ruling the other way. The religious principle in question (not being allowed to sue other Lutherans) seems pretty unimportant to Lutheran Christinaity (in fact, I’d bet most Lutherans don’t know it exists). And a lack of discrimination in the workplace is a pretty big societal goal. So are they not going to give an exemption? Or are they going to decide that some forms of discrimination (women not being priests) are “important” religious beliefs, while others (not rehiring teachers after they go on leave because of narcolepsy) are “unimportant”? Having decisions about religious beliefs decided by the court seems to be exactly what you want to avoid. But if they don’t decide what sort of belief violations would be what level of importance, how could they ever do the sort of weighing you want done?

  19. Jojo the hun

     /  January 14, 2012 at 10:32 am

    Aristarchus, are you seriously saying that forcing this school to hire a narcoleptic teacher, against their better judgement, is going to prevent some act of racial injustice?

  20. Aristarchus

     /  January 14, 2012 at 1:18 pm

    I’m not saying it. The Supreme Court is saying it. They just said that employment discrimination laws don’t apply to religious organizations. This isn’t some sort of bizarre speculation. It’s just completely straightforward. (And why wouldn’t it be? What is the logic by which rules against discriminating against the handicapped or against women don’t apply, but somehow racial discrimination laws still do?)

  21. Jojo the hun

     /  January 15, 2012 at 2:28 am

    The Supreme Court in this recent case specifically said that the laws in question do not apply to the school’s decision to fire this teacher in order to hire the one they prefered. Why do you say that “the Supreme Court is saying it” (that forcing this school to hire a narcoleptic teacher, against their better judgement, is going to prevent some act of racial injustice)? I haven’t read their whole ruling…is there some place where they outline the logic you are describing?

  22. Aristarchus

     /  January 15, 2012 at 7:39 am

    Ok, Jojo, I can’t tell if you’re actually this dumb or if you’re just being purposefully obtuse. Take one second and google the actual decision…

    http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

    Now, you don’t even need to actually read any of the decision. You can just read the official summary of the decision released by the court. You don’t need to read their description of the events in this case, either. You can just go directly to the holdings of the court, the very first item of which is:

    The Establishment and Free Exercise Clauses of the First Amendment bar suits brought on behalf of ministers against their churches, claiming termination in violation of employment discrimination laws. Pp. 6–15

    Guess what? The ruling is about “employment discrimination laws”. That’s all of them. Race, gender, national origin, disability, native language, sexual orientation, take your pick. They’re all covered. That’s because even the dumbest person on the Supreme Court is much smarter than you and understands that there’d be no reason on earth that this argument would apply to discrimination about disability, but not to discrimination about race.

  23. @Aristarchus
    I’m not proposing some radical new idea, in fact I’m proposing to just go on exactly like now.

    Since we want legal decisions to be mostly predictable and since we don’t want the courts interpreting religious doctrine, there is of course a lot of typification involved. So the weighting pretty much gets done on idealized case groups rather than individual cases. Sometimes the abstracted question is fairly obvious. For example, applying standard labor laws to ministerial employees of churches is inconsistent with their existence. On the other hand ministerial employees are too small a part of the workforce to seriously impinge on the societal goals sought by nondiscrimination laws. Since that kind of backhanded suppression of religion is clearly not meant to be in the power of government, standard labor laws can’t be applied to ministerial employees. It’s so obvious, it gets decided 9-0. Likewise not taxing people is inconsistent with the continuing existence of the state. So the Muslim exception that makes up the other half of NFQ’s false dichotomy would also be obvious enough for a 9-0 decision if anyone even had the gall to litigate it. Same with satanists who want to do human sacrifices.

    And then I can imagine some more ambiguous cases about say church bells or muezzins and noise control. There the result will pretty much depend on the court that decides it. This is indeed a problem, and I would support much more detailed constitutions to partially alleviate it. But this is nothing special about the free exercise of religion, you have this problem with all constitutional rights. For example your fourth amendment gets interpreted a lot stricter than the very similar article of the German constitution, simply because your supreme court is made up of different people than our federal constitutional court. That is a real problem, but it is a problem with every right, that people only ever seem to notice it when they are unfriendly to the right in question.

  24. Jojo the hun

     /  January 15, 2012 at 11:47 pm

    Aristarchus, I’ll take it that you don’t want to answer my question, which is a yes/no question, because the common sense, first order answer seems to be “no”, that making this school hire one teacher instead of the other is not directly going to prevent some act of racial injustice, and that doesn’t accord with your belief system. Hence your insults and diversion.

    Putting it on the Supreme Court is an obfuscation on your part, as I wasn’t asking about their opinion, I was asking about yours. It doesn’t even make any sense for you to defer to their reasoning, because the whole point of their decision is that these laws don’t even apply in this case–unless they are providing some reasoned defense, which you are not citing, of the efficacy of employment discrimination laws in general somewhere in their decision.

    I agree with your assessment of the problems arising from employment discrimination:

    It’s because those aspects are irrelevant to the job, and it’s deeply unfair to people to force them to live lives of constant discrimination when they have done nothing to deserve it. It creates boundaries within society, social friction, and a generally dysfunctional climate. You could try the veil of ignorance as a means of judging – if you didn’t know what color your skin would be in a future life, would you prefer a society where racial discrimination is ok? or one where it’s banned?

    What I am skeptical of is the unquestioned assumption that employment discrimination laws in balance work toward achieving the desired goals. The system of employment involves millions of individual decisions made by millions of people. It’s a complicated system, with feedback loops, positive and negative. For example, it’s known that some employers avoid hiring disabled or minorities when they otherwise would have, in order to avoid potential future difficulties in firing them if needed. For many employers the effect of the laws is to breed resentment and discord, as well as real or perceived economic disadvantages. Both the societal costs and the societal benefits are difficult to measure. It would be hard to objectively argue, with hard evidence, that “boundaries within society, social friction, and a generally dysfunctional climate”, have been reduced, let alone eliminated, by employment discrimination laws.

    So to answer my question, “are you seriously saying that forcing this school to hire a narcoleptic teacher, against their better judgement, is going to prevent some act of racial injustice?” with a “yes”, you’d have to present a whole ideological edifice that contains quite a bit of speculation. Just because others agree with the argument, even past Supreme Court judges, doesn’t mean it isn’t speculation. I wouldn’t be surprised if more than a few of the current judges looked at the case against this school and realized how ridiculous it was, entirely apart from the religious aspect.

    This isn’t a blog about politics, and the point I wanted to make is not political, but this: the cool skepticism and level-headed reasoning that can be applied to people’s religious beliefs, can also be applied to people’s political beliefs, and within one individual there can exist the greatest measure of skepticism toward the one concurrent with a great lack of it toward the other.

  25. Aristarchus

     /  January 16, 2012 at 2:13 pm

    Yes, Jojo, it’s possible to allow discrimination against the disabled while allowing it against blacks. It’s also possible to allow discrimination against Native Americans while not allowing it against blacks. It’s also possible to allow discrimination against women while not allowing it against blacks. But why on earth would you do any of those things? Your whole fixation on this racial discrimination question makes no sense at all. Why should we be only concerned with that? Why should we not give the same sort of protection to all sorts of discrimination? The answer, obviously, is that we should. And everyone with any sort of common sense knows that, including the Supreme Court. Discrimination against the disabled isn’t bad because it might lead to discrimination against blacks. It’s bad because it’s bad. And if you wouldn’t be willing to let religious schools not hire any black people, then you need to explain what special status makes that more important. Unless you do that, I’m not engaging in this conversation anymore. Gilbert is actually making intelligent points, so I’m going to spend my time engaging in the actually interesting part of this comment thread.

  26. Aristarchus

     /  January 16, 2012 at 2:48 pm

    @Gilbert

    I know you’re not proposing anything radical. I never said you were. I know I’m arguing against current precedent here.

    I think there is to some extent a deeper question of general interpretation here. One way to view rights is as important goods that get weighed against other societal values. Another way to view them is as bright lines that limit government action. In general Europe interprets rights more like the first option, whereas the US goes more towards the second (though obviously neither goes all the way). You can see this a lot in free speech rules, where European countries routinely ban speech that they see as particular harmful (hate speech, blasphemy, libel laws that cover everything, etc.). The US has some narrow, clear exceptions (death threats, conspiracy plans, etc.) but those things have pretty clear lines around them and everything else is protected.

    I’m arguing that we should switch to interpreting the religion clauses more like we do the free speech clauses. I don’t think that’s particularly radical either.

    The point I’m making is that your method makes it impossible to avoid the court judging for itself how important certain practices are to various religions. Your solution is to look at generalized groups of laws, rather than particular cases. But the extent to which you generalize is completely arbitrary. Obviously the court shouldn’t be looking just at this particular teacher, but why not generalize up to “disability discrimination laws” instead of “employment discrimination laws”? I’m pretty sure the disability laws don’t seriously impact any religious group in the country, so why not just leave the exception there? Or why not generalize further, and just say that religious freedom is inconsistent with “employment regulation” and get them out of the minimum wage as well?

    The only discrimination law that seems like obviously a deal-breaker to me is religious discrimination. If you can’t make sure your priests are Catholic, your church can’t function. That is true. But why are any of the other rules so bad? The Catholic church just decided that proselytizing and adding some Episcopalians to its ranks was more important than having unmarried priests. That seems to imply their rules aren’t so important to them… Why is the ban on female priests more important? Obviously you can debate the answer, but your system requires you to make a judgement about that in order to come to a decision. And I have trouble imagining that the Catholics on the court didn’t have exactly that potential implication in their head when deciding this case.

    Gender discrimination exemptions are more important to Catholics. Public noise exemptions are more important to Muslims. Want to take bets on which will get more legal protection?

    You say not taxing people is inconsistent with the state existing, and that’s of course true when generalized. But exempting a couple extremely religious Muslims and the Amish from taxes would not at all be inconsistent with the state existing. So do we make all decisions based on how bad it would be if everyone converted to a religion that had that belief all of a sudden?

    Do you not agree with the drug law precedents? Peyote use was very important to the religion in question, and society can clearly exist perfectly fine with the exemption. I would argue that that decision was correct, and general, broad laws passed for honorable motives should be able to be enforced. But in a world where that’s only true if the Supreme Court thinks the religious importance outweighs the societal harm, you just end up with general, broad laws being enforced against small, tribal religions, while there are always exceptions made for mainstream Christian groups.

  27. Jojo the hun

     /  January 16, 2012 at 10:55 pm

    Jojo: Aristarchus, are you seriously saying that forcing this school to hire a narcoleptic teacher, against their better judgement, is going to prevent some act of racial injustice?

    Aristarchus: Yes, Jojo, it’s possible to allow discrimination against the disabled while allowing it against blacks.

    Jojo: Huh?

    Aristarchus, your responses have a nasty tone and are full of complete non-sequiturs and false assumptions, and I’ll leave it to the intelligent reader to decide on the value of what I’ve said.

  28. Heh. Because I’m a patient person, I’m going to try to make this clear to you, Jojo. You keep returning to this conversation, so it seems like you actually want to understand what is going on.

    Equal protection law is a general body of law regarding discrimination against potentially oppressed groups. It applies to discrimination based on race or ethnicity, based on gender, based on sexual orientation, based on religion, based on physical ability/disability…etc. US law doesn’t say “make sure you’re always nice to black people, but fuck the people in wheelchairs.” The “employment discrimination laws” that the Supreme Court decision refers to, as Aristarchus quoted above, encompass this wide variety of types of discrimination.

    Yes, this particular case had to do with a woman who had narcolepsy. But the argument being made by the church group was, because we’re a religious organization hiring ministers, we should be allowed to choose the people we think represent our beliefs accurately, no matter what. The Supreme Court agreed with them. So while in this case they wanted to discriminate against someone for a disability, it would equally well apply to a case in which they wanted to discriminate against someone based on race.

    That’s why it sounded like we were saying that “forcing this school to hire a narcoleptic teacher … is going to prevent some act of racial injustice”. Obviously, as you pointed out and Aristarchus agreed, it is technically possible to discriminate against one demographic and not against another. But as far as the constitutional interpretation goes, a world in which the school gets to fire someone for having a disability is the same world in which they can fire someone for being black.

  29. Jojo the hun

     /  January 17, 2012 at 10:52 pm

    NFQ, my original question was a very simple and general one, “why shouldn’t the church school have been allowed to hire who they wish?” I was just interested in seeing how a skeptic of religion might construct a positive argument in favor of something like employment discrimination laws. I realize it diverges from the specific focus of your post, but it’s still germane to the general topic.

    Aristarchus right away referred to prevention of discrimination based on skin color as an essential part of his explanation, so I simply followed him there. I wasn’t expecting nor pleased with the resulting incoherence.

    We like metaphors. I asked to see a forest, and you both are shouting and pointing frantically at one particular tree and a cloud or two. The tree is nice, the clouds are pretty (and really hard to miss), and you’re certainly not obliged to give me the forest I asked for, but I’d prefer if you don’t get mad at me for pointing out that your little tree and clouds are not a forest.

  30. @Aristarchus

    First I’ll comment on the side issue of what my particular can or can’t do and then I’ll have some comments on your general framework.

    So for the Catholic thing, exceptions from the rule of celibacy aren’t anything new. They are not that problematic, because it is precisely that: a disciplinary rule. We went without it for the first few centuries (not totally, we actually started with a more lenient rule that is to complex to discuss right now), we never applied it to Eastern Catholics (though they, too, have rules on priestly marriage), we have been making exceptions for converting protestant ministers for decades and we have always believed that the pope could, in theory, abolish the requirement of celibacy. On a more practical level we actually introduced married deacons after Vatican II and many people see it as a trial balloon for married priests. Looking at how it seems to affect the marriages of deacons I think the experiment is so far failing. Maybe we’ll find some modifications that make it work, maybe not. But the point is, the Church can change the rules on celibacy and that ability wasn’t invented yesterday.

    On the other hand ordaining a woman to the priesthood isn’t just forbidden, it is simply impossible. If the rites of ordination are simulated on a woman nothing supernatural happens. And if that woman goes on to try celebrating a mass it will again be a simulation in which nothing supernatural happens. And that of course means I can’t participate, because in doing so I would be praying to what would in this case not be the body of Christ, i.e. committing idolatry.

    Make no mistake about this, if your interpretation allows you to make Catholics “ordain” woman it effectively allows you to ban the Catholic Church. And yes, I do think any interpretation that allows this is thus reduced to the absurd.

    OK, now for your general legal ideas:
    Bright line interpretations can work where there is a feasible bright line compatible with preserving both the right and the civil order. Your courts take such an approach to regulating the content of speech and, very unusual for a German, I actually sympathize with that approach. But note that even American courts start the weighting when it comes to times, manners, and places of speech. That’s because you can’t sensibly draw the line on either side. If regulating times, manners, and places was taboo I could follow you with a megaphone for months at a time loudly explaining this as a foretaste of hell. But if times, manners, and places could generally be regulated for any reason ostensibly unrelated to content, then noise control statutes could effectively prohibit all public demonstrations. Now, looking it up, there is a five prong test your supreme court applies in such questions but, aside from noting that all five prongs are wishy-washy, I’d also say that they essentially mark five situations where statutes will be struck down, i.e. what I termed case groups. And then there are different rules for commercial speech and rules to determine what speech is commercial and whatnot. In the end your bright line pretty much frazzles out into a semi-bright fishnet marking of what I called case groups. And your constitution doesn’t supply any of these details, they were all worked out by the Supreme Court weighting the consequences establishing or not establishing them would have for free speech and other government interests and then basically taking a vote on which alternative sucks less. So yeah, bright lines are great where they work, but where they aren’t employed it’s usually because it’s impossible without either obliterating the right in question (which is what your and NFQ’s interpretation essentialy means) or the state (which is the other half of NFQ’s false dichotomy). Somewhat ironically, I’ll note that I’ve read analogous interpretation proposals for the nonestablishment clause. The argument is essentially that the government can promote and legally favor whatever it wants as long as (bright line) doesn’t force anyone to join any particular church. I don’t find that convincing and I reckon you don’t either. But it is fully equivalent to your proposed treatment of the free exercise clause.

    For some of your practical concerns:
    I think there are arguments both for and against courts looking into the sincerity of beliefs, but my understanding is American courts have made a general decision against it. In that case the simple answer is that all stated beliefs will have to be counted as sincere. That doesn’t excuse from all laws (human sacrifices, for example, are out even if sincerely thought necessary) but it does broaden the application. That’s the price of non-entanglement.
    As for the level of generalization, I’m not so sure you won’t find some wacko prosperity gospel church where disability is viewed as a sign of divine disfavor incompatible with ministry. I would find that pretty despicable, but the point of rights is that they also apply to people we don’t like. On the other side of the generalization hierarchy “labor regulation” is probably too general a category to say anything about it. I think there might be some religious freedom questions there too (monks, for example, technically don’t make the minimum wage) but that is just not the question at hand. In the traditional western world setup courts don’t decide questions of law until a concrete case requires the decision.
    On taxation/assuming everyone would convert: This probably depends on the belief in question and the abuse potential of pretending to it. As a pragmatic matter, a religion that wasn’t taxed would find itself with lots of converts.
    As for the drug law precedents, which I admittedly had to look up, I would have decided differently but I see how reasonable people can differ about that question.

  31. Aristarchus

     /  January 18, 2012 at 11:29 am

    Gilbert, it’s true that bright lines aren’t perfect and sometimes subjective decisions have to be made. It’s true that there can be idiotic bright lines (like the Establishment Clause one you proposed), just like there can be idiotic case-by-case weighing decisions. That’s not a general argument against bright lines. I’m just arguing that in this case not having a bright line requires the court to decide on the importance of individual religious beliefs and naturally leads to favoring some religions over others, and I don’t think any of what you’ve said has really challenged that. You give me your particular opinions on each issue, but there’s a larger problem. Probably having to pay employees minimum wage wouldn’t be nearly as big a problem for the Catholic church as having to hire women as priests. So do we allow one exemption but not the other? What about when a new religion appears that has the opposite priorities? What do we do when every employer in the country claims their business is part of their calling as a Lutheran and then fires any employee that threatens to sue them? (especially since we can’t judge sincerity of belief, as you said) How do we make sure that less influential religions get the same protection as Catholicism?

    I think there’s a deeper point here, though. You see a rule against drug use, weigh it against harm to the religion, and say (I think) “it’s unavoidable to either harm society or religious freedom, but in this case the balance is on this side”. I think of it differently. If congress passes a general law against drug use, which happens to conflict with a particular Native American religion, I see no harm to religious liberty at all. If congress passes a law specifically banning just peyote smoked from pipes, then they are obviously targeting a religious practice and I see an enormous violation of religious liberty. I just fundamentally don’t think it’s ok to say “well, it’s my religion, so I don’t have to follow the law”.

    There Supreme Court has ruled (thankfully) that the Free Exercise clause also protects atheists and their right to not be religious. It also protects their rights to have their moral beliefs treated as just as important as those of the religious, even though they aren’t claiming a supernatural foundation. That’s why conscientious objector exemptions to draft laws, for example, apply to secular pacifists as well as Buddhists and Quakers (though I should say for the record that the same logic I’m using here implies that no one should get such an exemption, and I’m fine with that). But in a democracy, one of the basic, fundamental principles is that everyone has a responsibility to follow the law, even if they disagree with it. I think this applies to every reason you might disagree equally. I don’t think saying “I oppose this law because following it acknowledges secular authority, and I believe I should live only according to God’s law” has any more weight than saying “I oppose this law because I think it’s unfair”.

    And I really want to challenge your assertion that my interpretation makes the right meaningless. If you look through history at examples of religious persecution, I think you would be extremely hard pressed to find one that did not include lots of actions that would be unconstitutional under my interpretation. The government still can’t target religion for persecution. Yes, according to Catholic teaching a female ordained as a priest wouldn’t actually result in the rites being performed correctly. Catholic belief says it’d be idolatry and everyone would go to Hell. But there was a point in history where Catholic teaching said acknowledging that Church officials had to submit to secular state authority would be just as bad. And the Amish believed paying taxes would send them to Hell. I don’t know exactly what the believed downside to not using peyote was, but I’m sure there was one. And yet, these practices are now all forbidden by law, and somehow these religions have not vanished. In fact, they’re doing pretty well. I don’t think the scenario I’m proposing is as disastrous as you seem to think it will be.

  32. @Aristarchus
    First, a balancing of somewhat different interests:
    I don’t want to hang out at this blog much longer. On the other hand I don’t like to effectively ask people to make an argument and then not engage it. So I have balanced my interests to the effect of allowing myself this comment as the last one. I will read and think about any replies you might have to it (I still have an email subscription to this thread), but I won’t have any further replies.

    I mentioned that interpretation of the non-establishment clause not just to show some bright lines are dumb, but because it is actually the symmetrical application of your interpretative doctrine. Not using this bright line necessitate the courts looking into what ideas are religious for example when they decide on intelligent design in school. Also what if a new religion appears that teaches everyone needs training in economics and a school board implements that mandate? What if they want to teach a minority view that is thought possible but unlikely by the majority? And what about sex education? Empirically neither condom-advertising nor abstinence-advertising seems so have much of an effect on behavior but both sides have their pseudoscientific excuses. How do you decide which brand of wishful thinking is religious? What if a local majority belongs to a church that thinks contraception obligatory? What if most students in a class think the US constitution divinely inspired, which might actually happen in Utah? Can the secular students still be made to memorize and recite the preamble even if we understand most people in that room to take it as a religious statement? If so, can students be made to memorize and recite the Lord’s prayer because it has similar cultural importance? What if the teacher tests that memorization on a different student every morning, so that it gets recited daily before the rest of the class?

    So basically you need the courts to decide what are religious reasons and weather someone religious acted from them and weather they might also have had secular reasons. All this would be moot on the bright line version.

    Also a proponent of that interpretation could mirror your line on the “deeper issue”: There is nothing to weight here, as long as the police don’t dunk you into the baptismal pool no establishment has taken place. And if you look through history at examples of persecution of atheists, I think you would be extremely hard pressed to find one that did not include lots of actions that would be unconstitutional under this interpretation. At least not if I define everything not including such actions as not a persecution.

    The one and only difference is that this interpretation would hurt people like you while yours would hurt people like me.

    As for religions adapting to governmental pressure, I think your specific examples are a bit simplistic on the history, but I’ll admit it happens sometimes. On the other hand sometimes it doesn’t. Early Christians didn’t cave on sacrificing and early modern heretics didn’t cave on their ritual. Even today the real Church in China is underground because they won’t cave to the communist interests, though those are secular (abortion& keeping out foreign influence, the CP surely doesn’t care for the metaphysics). So yes, sometimes Churches cave. But sometimes they don’t and then your policy leaves you no choice other than bringing down the power of the state on them in a way very similar to other historic persecutions.

    And in this specific example I think I know myself better than you do. And if this kind of law came through I would simply stop going through the official structures and underhandedly pay my priest in cash. And i certainly wouldn’t give a rusty cent to the commissar the government would saddle us with as an official priest. Probably I would be cowardly enough to keep it secret as long as possible, but if you by any accident found out about it, that would land me in jail, ostensibly for tax evasion and breaking loads of labor laws. It’s just that simple and it’s not a scenario I would interpret as a bright future.

  33. Aristarchus

     /  January 22, 2012 at 2:44 pm

    Gilbert, your whole comment above makes an analogy based on what you would have to do with the Establishment Clause if you didn’t want to judge whether ideas were religious. You say that’s the generalization of my principle, but it’s not. Even in my Free Exercise test, the court has to judge whether motives behind laws are religious. What I’m saying is bad is for them to judge how important a belief is to a particular religion. And I started talking about that because you yourself made that point originally.

    You’re right that you’re the best judge of what’s most important to you in your religion. But in your preferred world, you’re not the one judging. The court is, because you want them to balance that against other goals. What would you do about the file-copying religion in NFQ’s most recent post? Does the file-sharing ban apply to them?

  1. See, this is exactly what I mean | No Forbidden Questions

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