11 October 2011

Hose Anna?

Q. What today unites - Roman Catholics, Mormons, Presbyterians, United Methodists, Seventh-day Adventists, Hindus, United Sikhs, Muslims, Episcopalians, Reform Jews and Orthodox Jews, National Association of Evangelicals, the National Council of Churches, the devotees of Santeria, Yoruba and a bunch of other religions? Is it love, peace, truth, justice, compassion, mercy?

Nope....it's discrimination. The case is Hosanna-Tabor Evangelical Lutheran Church and School versus Equal Employment Opportunity Commission, et al. Where the the fight is for the legal right to hire and fire employees at will within their organisations upon religious grounds....notwithstanding Equal Opps Laws.

The case is here...

How do you think the Supreme Court will vote, with or against the respondent?

Perich's brief notes…..this is not in essence a religious dispute.

“Perich asserts only that she was wrongly terminated
from her teaching responsibilities in retaliation
for asserting her right to sue for disability discrimination.
Resolution of that question does not require
the court to resolve a Lutheran doctrinal dispute.

The civil court need not consider whether Lutheran
doctrine in fact requires called teachers to follow
the Synod’s internal dispute resolution procedures.
It can take the church’s assertions about Lutheran
doctrine as a given, but nevertheless determine
that Perich’s termination violated the ADA’s
retaliation provision—a neutral law of general applicability
that does not give way to religious conviction,
no matter how sincere or important. Smith,
494 U.S. at 879.

Nor does it matter that Perich was a called
teacher or commissioned minister. The fact remains
that she taught secular subjects in a commercial setting.
And the question whether Hosanna-Tabor retaliated
against her for threatening to assert her
rights under the ADA is a secular question for a
secular court, not an ecclesiastical question for an
ecclesiastical court. Indeed, called and uncalled
teachers had “identical” duties. Pet. App. 4a; see supra
at 5-7.

The question in this case thus is the
same as would have been presented if Hosanna-
Tabor had fired an uncalled teacher of the same
secular subjects in the same commercial setting in
retaliation for her exercise of ADA rights.”

My own view is that, while it is not the business of the state to interfere with freedom of religious expression, no exclusions from civil protections to employment rights should be conceded to religious organisations.

JUSTICE SCALIA: “What is the legal definition of "minister"? What is it? That you have to lead the congregation in their religious services or what? What is it?”

That's the issue. If you grant the religious exclusion from employment law citing the 'ministerial exception' rule, then they (religions) have to know who their ministers are and so does the state, because the state has an interest in protecting employees. Granted, not all religions have heirarchic structure, so they could choose to define everyone as a 'minister' of that religion. But if that was defined in law, then any person choosing to be in the employ of such a religion, would do so knowing that the ministerial exception rule applied to them (in whatever capacity they work for the organisation), and they would be free to accept or decline the job knowing the implications of that. The state is required to legislate to make that clear and religions are likewise required to make their position clear by either keeping a ministerial list or granting across the board ministerial status to everyone or whatever.

Then it becomes...does the state have the bottle to do it? It remains in religion’s interests to have the situation remain murky and it will turn on the states determination to protect its citizens employment rights, if necessary, with constitutional amendment/s.

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