Pages

Thursday, October 06, 2011

"In every future case, a court—and not the church—would decide whether the church's reasons for firing or not hiring a minister were good enough"

Yikes. Religious organizations may not retain the freedom to make their own clergy hiring and firing decisions if Obama's Justice Department gets its way. From the WSJ:

The Obama Justice Department has now asked the [Supreme] court to disavow the ministerial exception altogether [which historically has left the government out of disputes on clergy employment]. This would mean that, in every future case, a court—and not the church—would decide whether the church's reasons for firing or not hiring a minister were good enough.

But the government, including the judiciary, is not entitled under the First Amendment to decide what qualifications a minister should have, or to weigh religious considerations against others. Is a secular court to decide, for example, whether confining Catholic priests or Orthodox rabbis to males is a correct interpretation of scripture, or merely a vestige of outmoded and stereotypical bias?

James Madison famously declared that the civil magistrate is not a "competent Judge of Religious truth." Yet every discrimination claim about the hiring of a minister necessarily comes down to the question of whether the church had a bona fide religious reason for its decision. That places the courts squarely in the business of adjudicating the validity of a church's claims about its own religious practice.

The Justice Department's brief grudgingly concedes that there may be an exception for employees performing "exclusively religious functions," but this is an illusory protection. Every church officer—even the pope—performs at least some nonreligious administrative duties. If the government's position were accepted, the courts would be embroiled in disputes about the selection of clergy at all levels and in every denomination. This would be a radical reversal of our nation's long constitutional tradition.

This bears watching.



No comments: