It’s been a monumental month in United States Supreme Court religious liberty decisions. First the court decided against hearing the Bronx Household of Faith’s appeal of a New York City Board of Education policy banning worship in public schools. Now the court has ruled that a teacher who taught religious classes at a Lutheran school was not protected under anti-discrimination employment laws because religious bodies have a right to hire and fire ministers as they see fit.
The Most Significant Decision in 20 Years
The New York Times reported that the Lutheran school decision may be the “most significant religious liberty decision in two decades” because, for the first time, it “recognized a ‘ministerial exception’ to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference.”
The case against the school was brought by Cheryl Perich, who spent 45 minutes each day on religious instruction, but “was a ‘called’ teacher who had completed religious training and whom the school considered a minister.” The school said it fired her for pursuing litigation against it in violation of church teaching, The Times reported.
In an op-ed at CNN.com, the attorney for Hosanna-Tabor Evangelical Lutheran Church and School said the decision was “a huge win for religious liberty.”
“Churches do not run the government, select government leaders, or set criteria for choosing government leaders. And government does not run the churches, select religious leaders, or set criteria for choosing religious leaders. The Court unanimously reaffirmed that principle on Wednesday,” said Douglas Laycock.
At USA Today, University of Notre Dame law professor and associate dean Thomas Messner said the ruling affirmed the “foundational principle” that “in a constitutional democracy like ours, secular governments lack the power to resolve religious disputes, to answer religious questions, or to select religious ministers.”
What About Sexual Abuse Reporting?
The Los Angeles Times reported that “lower courts have long recognized that churches are protected from lawsuits involving their internal workings.” But The New York Times noted that “at the argument in October, some justices expressed concern that a sweeping ruling would protect religious groups from lawsuits by workers who said they were retaliated against for, say, reporting sexual abuse.”
“Chief Justice Roberts wrote that Wednesday’s decision left the possibility of criminal prosecution and other protections in place. ‘There will be time enough to address the applicability of the exception to other circumstances,'” The Times reported.
Peyote, Polygamy, and “Internal Church Decisions”
At Spiritual Politics, Religion scholar Mark Silk said, “The big deal is that two decades ago, the Court substantially undermined the constitutional right to free exercise in Employment Division v. Smith (1990), a 6-3 decision written by Antonin Scalia that held that two Native American drug counselors could not go to federal court to claim a religious right to sacramentally ingest peyote as part of their membership in the Native American Church.” The Smith decision referred back to an 1878 decision in which the Supreme Court “turned down the Mormon claim to have a free exercise right to polygamy,” Silk noted.
“Maybe ingesting peyote is an outward physical act distinguishable from being employed or not employed as the result of ‘an internal church decision that affects the faith and mission of the church itself.’ But anyone who knows anything about Mormon theology knows that the LSD Church’s embrace of polygamy–‘plural marriage’–was an internal church decision that affected its faith and mission profoundly. … The bottom line is that, having been forced by the Justice Department to confront Smith directly, the conservatives on the Court significantly walked the Scalia doctrine back,” Silk concluded.
More Pastors Protest Eviction from NYC Public Schools
Meanwhile, reaction to the U.S. Supreme Court’s other big religion decision regarding worship in New York City public schools continues to heat up. Thursday, 13 pastors and 30 lay people were arrested as they held a prayer rally at Mayor Michael Bloomberg’s State of the City address, according to A Journey Through NYC Religions. The New York Times barely noticed.
What Do You Think?
Are these decisions good for religious liberty or do some of their implications concern you?
The United States Supreme Court declined this month to hear an appeal of a lower court’s decision to uphold the New York City Board of Education’s ban on holding worship services in public schools and one church facing eviction held a party to celebrate, according to its pastor, Rev. Sam Andreades.
UrbanFaith talked to Andreades in July after Katherine Stewart, author of the forthcoming The Good News Club: The Christian Right’s Stealth Assault on America’s Children (PublicAffairs, January 2012) mentioned his church in a New York Times op-ed column about the issue. Stewart had said it was “hard to imagine” how The Village Church was “representative” of the Greenwich Village community, given its affiliation with the homosexual “recovery” organization Exodus International.This week, we talked to both Andreades and Stewart about the Supreme Court’s decision.
Rejoicing in Inconvenience
Andreades said it means The Village Church will have to find new worship space by February 12, 2012. The congregation is small and considering studio space that is comparable in price to what it paid PS 3 in fees, he said. After the decision came down, Andreades was contacted by a representative of New York City councilman and pastor Fernando Cabrera about supporting new legislation that would permit religious groups to use public school space for worship, but he declined to participate in that pursuit.
“They’re trying to make a push for all the different religious organizations to contact their local council members and get their support for this. It’s bipartisan because actually politicians know that it’s ridiculous to alienate religious folks,” said Andreades, but he thinks the political route represents a missed opportunity.
“This is pretty clearly an effort of the New York Legal Association, the legal community, in conjunction with willing parties in the Board of Education to bring this discrimination. The legal reasoning is just so bizarre. Somehow doing worship in a space transubstantiates the space. That’s really weird. So I think it really qualifies as genuine persecution,” said Andreades.
(In the lower court decision, a judge had said that “when worship services are performed in a place … the nature of the site changes,” according to The New York Times.)
“Jesus and his disciples said that when you are actually experiencing suffering–and in this case it’s not even high level persecution, it’s kind of low level persecution—when you experience inconvenience is what this is, for the cause of Christ, for wearing the name of Christ, there’s only one appropriate response and that’s to rejoice,” Andreades explained.
Church/State Separation Guards Against Ill Will
Stewart disagreed (via email) with Andreades’ characterization of the court decision as discrimination.
“Just as it is possible to categorically exclude political groups from the schools without discriminating against any one particular political viewpoint, it is also possible to exclude religious worship as a category of activity from the schools without discriminating against any one religious viewpoint. It is not discrimination when religious groups of all stripes fail to get a subsidy from the state. And it is precisely to guard against the kind of ill will that inevitably ensues when that subsidy is revoked that the subsidy should not be demanded in the first place,” said Stewart.
“According to the New York City Department of Education, the churches in public schools were only paying custodial fees. They were not paying rent, nor did they pay for heating, air-conditioning, electricity, or furniture, and they had no leases. Such arrangements are a taxpayer subsidy to religious groups; if Andreades has a different arrangement, I would be eager to know,” she added.
Even if religious groups in public schools are paying market rent, Stewart thinks the arrangement “could still be problematic, though perhaps less so.”
“Schools are more than buildings, just as houses of worship are more than buildings. He and his group may be exercising good sense in their approach to the school children in the local community, but there are a number of other cases in which religious groups that happened to be located in schools wished to approach kids or use their association with the school in inappropriate ways,” she explained.
Andreades wondered if Stewart really understands the relationships that exist between congregations and the school communities that host them. Although he doesn’t think the principal of PS 3 ever wanted a relationship with The Village Church, the custodial staff is “not happy” about the situation, he said, because it has good relationships with members of the congregation and because custodians will lose income. Parents “aren’t thrilled” either, he said, in part because the church provides a Parents Night Out service to the community once a month.
“I imagine that we could still do it at the school, because that’s not a worship service,” said Andreades. “It’s just to bless the parents and give the kids a fun time.”
Funding Equals Government Endorsement
While Stewart appreciates that Andreades and his congregants “feel that the presence of their faith community is beneficial to many people,” she said, “One of the reasons we have such a vibrant and diverse religious landscape here in the United States is the Establishment Clause, which prohibits government endorsement – widely interpreted to include direct subsidies or funding — of any particular denomination or form of faith.”
“It may seem convenient now to use school facilities as houses of worship, but think about the long-term; if school administrators and city officials are put in positions where they have to make judgments or mediate disputes about religion, both religion and education will suffer,” argued Stewart.
Praying for a Place to Worship
Andreades has not had much discussion with pastors of other churches impacted by the decision, he said, but he has been in contact with the Bronx Household of Faith, the church at the center of the legal battle, and said the church is asking for prayer that it can find a new place to meet for worship. To read the prayer that Andreades composed and that The Village Church prayed after news broke of the Supreme Court decision, go to page 2.
What do you think?
Is this a case of religious discrimination or did the courts make the right decision?