Thursday, October 6, 2011

The Postmodern Liberal State vs. Religion

Both by intellectual conviction and by emotional inclination, I remain a Hamiltonian believer in government – in a strong activist government. I have no libertarian tendencies, I and have no fondness for claims of states’ rights. None of that is blinding me, however, to the problematic aspirations of the postmodern liberal state (which Hamilton, of course, could never have envisioned) and in particular to its heightened hostility to religion (which would, of course, have horrified Hamilton). That is why Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Opportunity Commission, argued yesterday before the Supreme Court, could prove to be such a critical case.
The case concerns a teacher at a Lutheran school. In 2004, she was diagnosed with narcolepsy, for which she received treatment. After a semester, she wanted to return to work, but the school hired a replacement. In response, the teacher threatened to sue the school for violating the Americans with Disabilities Act. Filing a lawsuit, however, would violate the church’s policy that conflicts be resolved internally, and so she was fired. (I’m guessing that this internal conflict resolution policy is that Church’s commendable attempt to remain faithful to the teaching of St. Paul in 1 Corinthians 6, where he strenuously opposed Christians suing one another in pagan courts).
The Equal Opportunity Commission contends that she was illegally fired in retaliation for filing a discrimination lawsuit. The school invokes the legal doctrine of “ministerial exception,” which bars such lawsuits so as to prevent secular judges from interfering in a religious institution’s mission. The extent of the concept of ministerial exception’s applicability to non-ordained church employees seems somewhat murky. Hence the potentially precedent-making character of this case.
During oral argument, Justice Elena Kagan asked the government’s attorney if the 1st Amendment entitled the church to hire and fire employees without government interference. The Assistant Solicitor General replied, “We don’t see that line of church autonomy principles in the religion clause jurisprudence as such” – a response Justice Kagan characterized as “amazing.” When Chief Justice Roberts asked if the Administration recognized anything special in the fact that this case dealt with a religious organization, the government’s attorney answered that it made no difference whether it was a religious group or a labor group or other association – a response Justice Scalia called “extraordinary.”
When Justice Breyer asked how the government differentiated this case from that of a woman who might sue the Roman Catholic Church for gender discrimination for ordaining only men to the priesthood, the answer was “The government’s general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine.”
Does that mean that this over-reaching government might someday decide that its “interest in eradicating discrimination in the workplace” had suddenly become “sufficient to justify changing the way that the Catholic Church chooses its priests”? No wonder the Christian Science Monitor has characterized the Administration’s argument as embracing “a line of analysis that would have virtually eliminated the ministerial exception.”
Fifty years ago, churches were among the major supporters of the Civil Rights movement. In the intervening decades, however, the culture has changed dramatically; and the concept of illegal discrimination has long since metastasized into something much more extensive and ominous – an additional weapon in the secularized cultural elite’s arsena,l abetting the postmodern liberal state’s increasingly totalitarian aspirations. It’s obvious that all authentic churches and religious institutions in the United States have a strong interest in the outcome of this case.

1 comment:

  1. I wonder if the Administration has a definition for "religion". If not, I fear the day will come when an administration will take a position which will then require them to adopt such a definition in court, and we won't like it. All educational efforts and social engagement on our part could be viewed as either political or even commercial, and therefore subject to regulation.