Jan 20, 2012

On the shittiness of religious liberty

There've been more than a few hallelujahs in response to last week's Supreme Court decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC.

Even those taking a more objective position have called the 9-0 vote in favor of the Lutheran Christian school a win for "religious liberty," even a "most significant" one. For those who feel their religious liberty is under sustained assault in America -- and that narrative has really taken hold, in some circles, a story being told and retold-- the ruling is a real victory.

A reason for jubilation.

At Public Discourse, the decision was described as the court "getting something absolutely, completely right." More: "The decision in Hosanna-Tabor is an occasion for celebration, for dancing in the streets (or, for some Baptists, simply praising the Lord)."

Family Research Council called it a watershed decision, a "major win." And they gleefully  characterized the decision as the rejection of "the Obama administration's claim that federal bureaucrats can tell a church whom it can hire as ministers."
That's not actually what the administration's lawyer's claim was, but one supposes the details don't exactly matter with this sort of thing.

First Things echoed the sentiment and the politics, saying "The Obama administration deserves to be rebuked for the hostility to religious liberty."

Thomas S. Kidd described "defenders of religious liberty" as rejoicing at the decision in which "secularists" -- by which he means particularly groups that take it as their mission, actually, to "defend religious liberty," although their defense of liberty, which is defense via secularity, is taken by some religious people as a curtailing of that liberty, of which they say they're the true defenders, defending it in the other direction, via opposition to secularity (sort of); by which I mean to note, only, that the rhetoric here is Russian dolls that have to be unpacked to even get at what the argument is  -- were "taken to the woodshed."

The Becket Fund for Religious Liberty, which was involved in arguing the case, called it “the greatest Supreme Court religious liberty decision in decades" and said “This is a huge victory for religious freedom and a rebuke to the government, which was trying to regulate how churches select their ministers.”

And so on and so on.

The tenor of the response was maybe most concisely stated by a commentator on First Things, Don Roberto, who said "Wow. The libertine-pagan-atheist alliance must be steaming. But it's a 'long game,' and we must pray that Obama will not be in a position to appoint any more justices."

While most conservative pundits and religious commentators didn't go so far in naming the bad guys libertine-pagan-atheists, that's certainly the shared sentiment.

The official consensus was summed up by the Heritage Foundation, which called it a major win and a "landmark victory for religious freedom."

And maybe it was.

I accept the legitimacy of a ministerial exception to employment law. That makes sense to me. Religious organizations are going to have to have more leeway in who they hire for ministry than, say, Wal Mart should get in hiring store managers, or the New York Times should be allowed in the employment of editors.

That, it turns out, was the crux of the case before the court, Hosanna-Tabor.

There's another sub-debate there, which is a lot trickier, which is about how a "minister" should be defined.

One side of this case argued that a minister is a minister if the organization in question defines that person's role as ministerial. The other argued that if a large part or even a majority of someone's duties were secular, then that person wasn't a minister.

Both definitions seem pretty problematic.

The latter seems to misunderstand ministerial work, as Chief Justice John Roberts said in the majority decision, and it depends everything, besides that, on the definition of "secular." There's no way that's going to be clear. Is washing lepers secular? Feeding the poor? Preforming a marriage? Counseling? Yes, obviously, and no. So that's too ambiguity-ridden to be much help.

The former is essentially the abdication of a definition, though. As People for the American Way points out, "a test that relies entirely on the employer’s classification effectively relieves a religious employer of legal liability and is easily susceptible to abuse, as religious employers can simply classify all of their employees as ministerial."

The fact someone's classified as a minister in the paperwork doesn't mean they're understood to be ministers, either, or treated that way. If the ministerial except were to work like that, with the definition of "minister" being what religious organizations said it was, that would mean there were ministers and then also ministers, with the one sort being the sort understood as ministers and treated as ministers and self-conceived as ministers in the context or the religious community, and then the other being something that's written on a file. You can call the woman who cleans the church toilets a minister. That doesn't mean she thinks of herself that way. Doesn't mean she's treated that way by the church. It does mean, apparently, that she can be fired for any reason.

But fine.

Cheryl Perich, the actual person whose life and work are at the whim of all these abstractions, apparently considered herself a minister. And was seen as a minister by her religious community.

So I guess the ministerial exception to employment law applies, and this is a win -- maybe even a major one -- for religious freedom.

That doesn't mean it's not really shitty, though.

It can be religious freedom and still make you feel like you need a shower more than a party in the streets.

It is shitty, what happened to Perich. Even if the church had the right to do what it did, and the government doesn't have a right to stop it. The woman wanted to teach. The woman thought God wanted her to teach too, and so did her church.

Then she got sick and went on paid medical leave.

She got better -- her doctor said her disability was under control, being treated, managed by medicine, and she could teach again. Then her church asked her to resign. Mostly, apparently, because how she was sick -- narcolepsy -- freaked them out.

They asked her, specifically, to sign something saying she didn't want to teach any more and also that she wasn't called by God to teach. To resign her position, for one thing, and for another to publicly announce God didn't want her to be a teacher.

They pressured her, that is, to say she wasn't called to do what they had, previously, affirmed was her God-given purpose in life.

She refused, and then they fired for how she refused to resign.

Call it religious liberty. But that doesn't mean it wasn't mean, small minded and cruel. That doesn't mean it's a decent way to treat human beings, much less supposed brothers and sisters in Christ. Doesn't mean it's not morally disgusting.

As Don Byrd, of the Baptist Joint Committee for Religious Liberty, wrote:
"The freedom to make certain employment decisions without government interference leaves intact the moral obligation to act honorably, to treat employees honestly, and to make religious decisions based upon true religious beliefs. Support for a broad definition of the ministerial exception should not imply support for a broad license to discriminate with impunity."
That is to say, religious freedom means the freedom of religious organizations to act immorally. It's the freedom, actually, for them to be less moral, less decent, less humane than equivalent secular organizations. What's protected, here, is the right of the Lutheran church and other such religious organizations to treat people badly.

To treat people worse, even, than they'd be treated if they worked for a bank or a factory.

One hopes defenders of religious liberty may be excused from the celebration of this.

One can support religious liberty and still consider it terribly sad.