The Ministerial Exception

Posted by lex, on October 5th, 2011

The constitution of the People’s Republic of China guarantees its citizens religious freedom. In practice, the Communist Party of China is loathe to permit its faithful to practice according to their consciences, restricting it to government-sanctioned organizations where it does not, as in the case of the Falun Gong, suppress it entirely. The PRC has even crossed swords with the Vatican, insisting that Chinese bishopry be appointed by the state rather than Rome, and requiring Catholics to place loyalty to the state above their conscience and renounce the primacy of the pope, an essential Catholic doctrine that puts them at odds with the broader Roman communion.

Founded as it was by those fleeing state-regulated conscience , our own constitution’s first amendment prohibits the making of any law respecting an establishment of religion, or impeding the free exercise thereof. Historically speaking, Jefferson’s “wall of separation” between church and state was designed to protect the former from the impertinences of the latter, although in these our more educated days the popular mood concerns itself antipodally.

Nevertheless, the secular courts have for decades resisted meddling in the internal workings of American churches, especially as it relates to employment of the clergy, a so-called “ministerial exception” to federal statutes. This congenial arrangement has permitted the establishment of separate magisteria between the church and state.

Farewell to all that:

Today, the Obama administration will invite the Supreme Court to open a new front in the culture wars. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC concerns a commissioned minister, Cheryl Perich, who taught elementary school and led chapel devotions at a small Lutheran school outside Detroit. Ms. Perich became ill and was replaced in the classroom by a substitute. In the middle of the school year she sought to return and then, instead of attempting to work out the dispute through the church’s reconciliation process, she threatened to sue.

As relations broke down, the church congregation voted to withdraw her “call” to the ministry, and she ceased to be eligible for her prior job. She sued under the Americans with Disabilities Act, with the support of the federal Equal Employment Opportunity Commission.

The federal statutes outlawing employment discrimination based on race, sex, age and disability contain no express exception for church employers. But for 40 years lower courts have applied a “ministerial exception,” which bars the government from any role in deciding who should be a minister. Courts have reasoned that the separation between church and state protects the ability of churches to choose their own clergy just as it protects the state from any control by churches. The Supreme Court has never spoken to the issue.

But soon it will have to.

At issue here is who should be permitted to select for a congregation its leadership, the congregation itself or agents of the federal government. President Obama’s justice department appears to prefer the Chinese model of church/state relationships to the American one.

Even this?

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Filed under Carroll "Lex" LeFon, Politics and Culture

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