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Response from Lincoln E. Steed

Discussion Question: How Should the Supreme Court Rule on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC?

The Supreme Court recently granted certiorari for Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Should the ministerial exception, which prohibits most employment-related lawsuits against religious organizations by employees performing religious functions, apply to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship? And if so, where should that line defining ministerial exception be drawn?

The Supreme Court will hear the Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC sometime in the fall. Curiously for a case that is at root a simple one of workplace fairness based on commonly accepted protections against discrimination, it may prove to be a watershed for the whole issue of religious exemptions. The U.S. Constitution mandates a healthy separation of church and state. That concept certainly owes its development to the Protestant Reformation. Church-state separation was hardly even imagined in pre-reformation Europe. The medieval church claimed that it was exempt from civil authority—in fact the church did its best to ensure that civil authority could not function without its imprimatur. But the biggest issue before the reformation was arguably the exemption of the church and its priestly class from civil control.

No pre-reformation incident more starkly illustrates this dynamic than the story of Thomas Becket, friend and confidant of Henry II. Thomas Becket served as chancellor to the king for many years—until they both hit on the bright idea that if Henry nominated him for Archbishop of Canterbury they could control the church and bring it to heel financially. So he was ordained as priest and consecrated as Archbishop—only to resign as chancellor as the import of his new job sunk in. The friendship faltered and hit rock bottom over the issue of whether secular courts had any jurisdiction over English clergymen. Finally Henry made the ill-advised public comment that "Will no one rid me of this meddlesome priest?" Four of his knights took him at his word and went and murdered Becket as he was beginning services at Canterbury Cathedral. Henry II had to do penance, Becket was canonized, and much later Henry VIII appropriated church property and took direct control. So much for over reach!

The storyline is not so interesting today, but in some ways the issues are not so different.

On matters of conscience and belief the church, its ministers, and its practitioners should be protected from state intrusion—most people who know history and law know this. Beyond this we have a matter of state deference in matters of taxation and with some funding work arounds thrown in of late. This is an area where chancellor and minister of religion all too often pass in the same hallway of convenience. Those defending the church actions in terminating the teacher in the case go the second mile in expanding her minor religious duties to come under a ministerial exemption—where in other cases brought by church organizations seeking government funding these same duties would be minimized to come under the definition of pervasively secular.

The whole world now sees that priestly secrecy and privilege in the Roman Catholic Church worked badly for the rights of the abused. It is hardly unreasonable that a church be required to act with the same civil decency on general civil matters as any other employer. So long as the exemption is kept for purely doctrinal and faith matters, only good can result. Ministers of religion are indeed in a holy calling, but that should not relieve them or their employers from responsibility under laws that protect individuals and fair interaction. Obviously the looming issue of "discrimination" is that of gay behavior, which many faiths discourage and will legitimately attempt to keep outside their system of employment. That form of moral standard, pre-stated as a basis of belief, together with an array of doctrinal criteria for employment, seems to me the bedrock issue that the state must acknowledge or risk acting like one of the Henrys. The church must not demean itself by broadening its definition of ministers and faith activity so widely that it is establishing a state within a state, in essence a legal carve-out.

I fear that by claiming exemption for church employees and actions that are religious only by affiliation with the religious entity, such churches will risk angering the good king and former friend of faith into something all parties will eventually regret.

Photo of Lincoln E. Steed

Author: Lincoln E. Steed

Editor, Liberty Magazine

Lincoln E. Steed is the editor of Liberty magazine, a 200,000 circulation religious liberty journal which is distributed to political leaders, judiciary, lawyers and other thought leaders in North America. He is additionally the host of the weekly 3ABN television show "The Liberty Insider," and the radio program "Lifequest Liberty."

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