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The First Debate–“Thoughts”?

February 21, 2012

Just read an interesting article about a recent decision by the
supreme court and I was wondering what you guys think.


From → Uncategorized

  1. Gosh, what a gray area to navigate. Free speech versus equal protection under the law (right?). I understand that there’s a giant loophole here to circumvent protections against race, sex, age, etc. by church employers, but I think the SC did the right thing. As I see it, being a minister effectively means you’re speaking for the Church, an institution that relies heavily on the first amendment. Under the amendment, you have the right to say what you will and its under the Church’s discretion whether the minister’s message and actions are in keeping with the ideas the Church wants to put forth. In that way, they get to decide who can and cannot represent the church. Because the Church sees the role of minister as the conduit for church speech, religious institutions should have the right to fire whichever ministers they like. For instance, imagine there’s a religious institution that exists to hate gays—they operate solely to broadcast the anti-gay message. Under the first amendment, they can do this freely even though it would be deeply unpopular among the larger population. But this minority anti-gay voice is protected. If, as it happens, this church finds one of their ministers to be gay, should they not be allowed to fire him or her because that person is perhaps undermining their message? In this way, churches are something like the embodiment of free speech and ought to be allowed to function in a way that they can get their message across best. In addition, they don’t engage in commercial activity in the way that normal companies do, so I think employee protections might be a little bit different, but that might only be tangentially related.

    I agree that they have this enormous power to grant ministerships to whoever they dislike and then just fire them, and obviously that’s not good for a minority of people. But remember, private companies, non-profits, and I suspect churches, can fire anyone for ANY REASON except age, religious affiliation, sex, and race. What’s to prevent them from firing someone because they just didn’t “fit”? It seems nothing. So is the loophole really that much bigger? I understand this is a practical argument, but what are we to rely upon when you have two rights that are effectively at odds with each other?

    I don’t know what the alternative would be. You can’t have the SC determining how people are hired under ministerships. That’s not at all their place. There’s no way that protecting one right will not somehow dilute the other, it seems to me. If that’s the case, I think it’s better to maintain the right of free speech untrammeled. But I base my arguments on the fact that I think churches are fundamentally centers for free speech–if statute, practice, or the conventional wisdom say different, then I might be on the side of the employees.


  2. While I agree with Victor on the importance of supporting free speech,
    I wonder if there isn’t an easier solution to this problem. It seems
    this question could be completely avoided by changing what defines a
    “minister”. More specifically, is there a way to separate a
    minister’s religious responsibilities from his “secular
    responsibilities”? While this seems like an easy solution in theory,
    I wonder if it’s more difficult in practice.


  3.’s reading of the case (which is based on the NYTimes’ article and not the ACTUAL reading of the decision), is crap. First, don’t ever trust an article that purports to have an opinion of a court decision that hasn’t actually read the decision (or some accurate summary of that decision). Second, Jezebel makes no distinction between the fact that majority opinions are VERY different than concurrences. A majority means that 5 or more justices have signed on to both the conclusion and the reasoning of the decision. In this case, the majority held that courts can, in fact, determine whether someone is a minister, and if he or she is, then the “ministerial exception” applies. That is the law. Whoever wrote the article in Jezebel cites to Justice Thomas, who says that courts should not be in the business of even deciding the threshold issue of who is or isn’t a minister. But Jezebel fails to tell the reader that Thomas is a CONCURRENCE, and does not speak for the MAJORITY. After reading some of the comments on the website, it’s pretty clear none of the readers of Jezebel understand that either.

    In terms of the decision itself, I (shockingly) agree wholly with Victor and I won’t repeat his well-articulated rationale. But let me build off of Victor’s example to point to another issue: If the government could, let’s say, reinstate or punish a religious institution for firing a gay minister because it contravenes their religious doctrine, then where does that leave religious institutions in terms of the whole separation of church and state issue? In other words, if we treat religious institutions as any other institution, then why treat them differently when it comes to using public space or public funds? The ONLY reason why the ministerial exception makes sense is because religion IS different. For example, I might (or will) start a club in honor of Chuck Norris, but not claim he is a deity or ultimate truth. Roberto’s club gets access to public funds, public space, etc. But Roberto’s religious club that calls some first century Palestinian Jew (i.e. Jesus) the son of God will not be able to obtain any of those benefits. Both clubs adulate a person, both subscribe to that person’s sayings, both clubs meet for the express purpose of talking about that person. But my club gets the benefits, and Berto’s doesn’t. The only way to reconcile this inconsistency is to say that religious institutions are different: If we say “no” to religion in public schools because there is wall between church and state and the two can’t mix, then religious institutions must be given must apply it to internal church policies. The state can’t have it both ways.

    But the Supreme Court also struck the right balance between protecting real claims and fake ones. (This addresses Berto’s superficial response) Just in case a religious institution tries to dodge anti-discrimination laws by crying “but he’s a minister!”, the courts can determine whether the church is being honest by looking at their standards to determine if that “minister” hold themselves out as a religious person, performs religious functions, and are treated as such versus performing purely secular functions. In this case, the plaintiff taught only one religious class yes, but she also held daily prayer, taught devotional exercises, and took her class to weekly mass, and led chapel service twice a year (other facts that Jezebel fails to mention). She was a minister, and so the exception kicks in and the courts are out. Oh, and even though the reasoning was not, the ultimate decision to dismiss the case was unanimous, which suggests both the liberal and conservative justices agreed on the applicability of the law to this case.

    From a future legal standpoint, that is where all the fighting will take place: whether the plaintiff is a minister. But it’s the only reasonable battleground.

    – John

    The First amendment gives religious institutions the right to select their ministers and conversely, the right to terminate them for any reason that those institutions see fit.

  4. I didn’t mean to suggest that I take everything I read on Jezebel at
    face value. Obviously it’s a very biased site and their views are
    reflected in their articles. That being said, I’m glad you both
    responded. It’s interesting to see what you guys think, even if the
    information provided isn’t accurate. If I find any other thought
    provoking/heavily biased articles, I’ll share.

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