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September/October 2012

Discover more articles from this issue.

Sadness Within Islam

Saudi grand mufti's edict on Christian churches

Inside Interfaith Iran

For the past few months the eyes of the believers around the world have been fixed on an Iranian death row "apostate" who has refused to recant his faith...

For the Good of All

Have you noticed that when some people speak of religious liberty, they mean something different from individual religious liberty? They use the same term...

The Vision Thing

A Catholic View of Religious Freedom in the United States

A Secular Threat

Recent events in America have shown that a strong secularism can lead to clashes with religious freedom. This, however, is not a new occurrence in the...

Prayers in Florida

In early March the Florida legislature passed SB 98, a bill authorizing public school districts to adopt policies that would encourage prayer at secondary...

An Act of Faith

Editorial

Religious Bigotry

"I do not want to see religious bigotry in any form. It would disturb me if there was a wedding between the religious fundamentalists and the political...

Jeopardy

"The public schools of this country serve the admirable function of bringing together on common ground students from a diversity of cultural and religious...

Magazine Archive »

Published in the September/October 2012 Magazine
by Nicholas P. Miller

Recent events in America have shown that a strong secularism can lead to clashes with religious freedom. This, however, is not a new occurrence in the West. It is at least as old as the French Revolution, where the rallying cry "liberty, fraternity, and equality" was based on a dark philosophy that was anti-priest, anti-church, and anti-God. The French experiment soon lost its crude, atheistic edge, and morphed into a quasi-tolerant but religion-marginalizing public philosophy.

But while this revised French secularism did not deny the existence of God, it essentially denied the ability of religious people to express their religious beliefs anywhere outside the privacy of their homes, churches, synagogues, or mosques. This religion-marginalizing, privatizing philosophy has characterized the role of religion in the societies of most of the nations of Western Europe. This has been true even of those nations that have state-supported churches, such as Germany, England, and the Scandinavian countries.

But what is quite new in the relationship between secularism and religion is the new potency that this European form of secularism has recently gained in America. Historically America has been foremost in promoting a certain kind of secular government, one that does not endorse or promote a national church, creed, or even religion generally. It has been more "secular" in this formal sense than most of the nations of Europe.

Yet, the paradox has been that while formally and legally secular, America has allowed for and protected a vibrant religious community. Further, those communities of faith have not expressed that faith in a purely private fashion, but have launched enterprises that have impacted public policy and even politics in dramatic and society-altering ways. A few of the movements that have been largely driven and at times led by religious people and churches include anti-slavery, temperance reform, child labor laws, and, most recently, the American civil rights movement.

But this healthy respect for religious freedom, and the role of religion in shaping society and politics, has recently come under open attack in American society. For most of the history of the Christian West, homosexual activity was considered a "crime" against nature. It was universally condemned by virtually all religions, cultures, and societies, Christian and otherwise. It was only in 1961 that Illinois became the first state to remove crimination sanctions from the act of sodomy. Even in the modern, secular West, homosexual orientation was considered to be a mental defect or illness until 1973. As recently as 1986, the U.S. Supreme Court affirmed that state criminal laws against homosexuality were acceptable under the Constitution.

These facts make all the more stunning the reversal that has happened over the past two decades. A growing secular rights movement has made gay rights the centerpiece of its agenda. In 2003 the U.S. Supreme Court reversed its earlier decision, and ruled in the case of Lawrence v. Texas that states could not criminalize homosexual behavior between consenting adults. This invalidated sodomy laws in 13 states, and strengthened the cause of a growing same-sex marriage movement.

Less than 10 years from the time that the Supreme Court decriminalized homosexual behavior, a federal appeals court has now ruled that the U.S. Constitution requires that the state of California must provide homosexual couples with the highest level of rights and state approval in its legal and educational systems. It has ruled that the desire to protect marriage as a union between man and woman is merely religious bigotry that deserves no place or consideration in the law. This is a stunning and dramatic reversal that squarely pits the competing claims of a secular, relativistic, even nihilistic morality with the natural law morality shared by nearly all the great religions and cultures of recorded civilization.

The decision in the Perry case in California puts us in much the same place as the French Revolution today. Something very basic is at stake in our society's moral ordering and framework, and the ability of not just historic Christianity but almost any form of traditional religion to survive is being threatened by a zealous movement to overturn the basic, natural moral order of society. This kind of extreme secularism cannot exist with religion, but must displace religion, at least traditional versions of it.

While we might presume that churches, temples, and synagogues will probably never be required to hire or marry homosexuals, the same cannot be said for church-affiliated institutions, such as colleges, hospitals, and social welfare charities. Already a number of religious charities have had to close in states in which gay marriage has been adopted, because they refused to provide adoptions or other services to gay couples. The public role of the church's mission is at stake in this very public battle over sexual "freedom" and family welfare. Thus, it becomes vital for us to be able to distinguish between traditional American secularism and the European version that is hostile to individual religious freedoms.

A recent American Supreme Court case was heralded as a strong victory for religious freedom. But the decision, in the case of Hosanna-Tabor Evangelical Lutheran Church v. EEOC, which upheld the ministerial exemption from federal antidiscrimination laws, is, in my view, a mixed bag. That the decision attracted the unanimous support of both very liberal and extremely conservative justices should indicate that there are some deeper things going on than just the protection of religious freedom.

The case involved an elementary school teacher for a Lutheran church school. The teacher taught a wide variety of subjects, such as math, English, and science, and also taught one religion course a day. The church viewed her as a commissioned minister of religion. The teacher began experiencing some health problems, a sleeping disorder, and needed to take time off from work. After a four-to-five-month absence, she desired to return, but was essentially told that she had been replaced, as the board thought that her health issues would prevent her from functioning successfully. She indicated she intended to enforce her legal rights in court under the Americans with Disabilities Act. After receiving the legal threat, the school board voted to rescind the teacher's religious call, as lawsuits within the church are considered a breach of moral duty.

The question the Supreme Court had to decide was whether the teacher really qualified as a pastor, and would thus be prevented from bringing any kind of discrimination suit under the ministerial exemption. Just a word about the ministerial exemption. This is a legal doctrine, based on the Constitution, carved out by federal courts, that says that churches have the right to hire, fire, and otherwise manage ministerial employees without oversight or interference from the state. This is because, courts have reasoned, ministers are so important to the shaping and teaching of doctrine and worship practices, which are the essential, core functions of what churches are about. A church needs to have a free hand to change, replace, or discipline pastors if they start straying from the theological and ritual beliefs of the church.

A number of federal courts had affirmed this exemption, though it had never been considered by the Supreme Court. So the Supreme Court had to decide two things: (1) is there actually a ministerial exemption to civil discrimination laws, and if so, (2) was this exemption broad enough to cover elementary school teachers in church schools who have as part of their duties the teaching of Bible class? The Court unanimously answered yes to both questions. The ministerial exemption is a constitutionally founded doctrine, and thus ministers cannot sue churches under antidiscrimination laws, and schoolteachers who have some religious roles are considered ministers.

Now, this seems like a good victory for religious freedom. But what kind of religious freedom is it? Is it individual religious freedom? Or is it more about institutional autonomy, the right of institutions to be free from government oversight? Indeed, if you ask about the individual rights perspective in this case, you might say that individual freedom or rights lost out to institutional interests. It should be of some caution that such strong conservatives as Justices Scalia and Thomas voted for this outcome, along with such liberals as Justices Kagan and Ginsburg. There is a paradox that Justice Scalia was the author of the opinion in Oregon v. Smith, which denied religious freedom rights to individuals, but in Tabor he granted religious freedom rights to institutions.

What is going on here? Well, for the liberals on the Court, the notion of group rights, even religious groups' rights, is of high value. An important aspect of French secularity, even in the early days, was the treating of religion as a group function. Contrary to popular impressions, French secularism tended not to be entirely atheistic. Voltaire and Rousseau, far from being the atheists that some imagine, were at least deists who saw an important social role for religious belief. Indeed, Rousseau believed that religion was sufficiently important that a very basic set of religious beliefs should be officially promoted by the government, and anyone who rejected them should be exiled or even executed. For the French philosophes, religion was not to be entirely abandoned, but a minimalist version needed to be created, and then enforced by the state.

This secular enlightenment model was not so different from what we might call a medieval model, which also valued religion, but also at the expense of the individual. The medieval church had a sense of the separate spheres of church and state, but they viewed these two as collaborating to oversee and monitor the individual, who had no meaningful rights at all. Religious institutions, on the other hand, had rights to be free from state intrusion or oversight, even in many criminal matters. In the Middle Ages there was a separate system of church courts that handled many matters relating to the church, including oversight of cases and even criminal claims involving clergy and other church employees.

This parallel system of courts meant that the institutional church was insulated from state oversight, and individual church employees and members would not have recourse in civil courts against abuses, even criminal ones, of the church or its employees. This medieval model was one that Martin Luther sharply criticized. He said that the church should be subject to the laws and magistrates of the land. The conflict well illustrates how the protection of so-called group or institutional rights can conflict and even suppress individual religious rights.

Now, I do not want to overstate this point. I think that the Hosanna-Tabor case probably came out correctly. I am certainly happy that the Supreme Court upheld the ministerial exemption. I do think that ministers do play a special role in defining and propagating the mission and beliefs of a church. But this exception needs to be applied carefully, as not all employees of religious institutions play this special role. Nor do they all have the prestige and respect usually held by ministers, which gives them greater protection and authority in their communities.

This case may mean, depending on how lower courts interpret it, that almost all teaching employees of any church institution will be deemed ministers, and thus may well be stripped of civil rights and antidiscrimination protection. Do we really want to accept that once you join a religious employer, you trade in most of your civil rights? Do we really believe that the state has an important interest in protecting only the religious rights and autonomy of the institution, and not the civil rights and freedoms of the individual? I hope not.

The concern and protection for community institutions, governmental and religious, at the expense of individuals and their rights is found in the skeptical enlightenment secularism of Rousseau and Hobbes and the medieval absolutism of Aquinas and Innocent III. It is a commitment to the rule of the majority in both the political and religious realms that the Protestant Reformation confronted, slowly unraveled, and ultimately opposed by creating an order of rights based on the individual in the founding of the American republic.

The irony is that the last and greatest attack of secularism on religion and religious freedom may ally itself with the overtly religious model of medieval Europe that also discounted the religious and civil freedoms of individuals and minorities.

It is at this time that we must promote more broadly the dissenting Protestant view of the importance of the individual conscience. The individual's standing before God is of highest import; this standing must be respected by both the state and the church, and our system of rights is first and foremost meant to defend individual, personal rights. Institutional rights, while also meaningful and important, and in their own way an expression of individual rights, still must be kept in their proper place and not allowed to suppress or abuse the individual inappropriately.

We must beware of political candidates, or any other civic or religious leaders, who insist that the threat to religious freedom comes only, or even primarily, from an antireligious secularism. Religious people and forces have shown themselves well capable of doing just as effective a job at trampling on the religious rights of the individual.

Nicholas P. Miller, an attorney, is director of the International Religious Liberty Institute at Andrews University, Berrien Springs, Michigan.

Author: Nicholas P. Miller

Nicholas Miller, Ph.D., is an attorney and associate professor of church history at Andrews University, Berrien Springs, Michigan. He is the author of the The Religious Roots of the First Amendment (New York: Oxford University Press, 2012), which more fully develops the theme of this article.

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