As we ask (to put it perhaps too nicely) more and more of our governments, their regulatory reach extends further and further.  When we insist that governments care for the needy, for example, they almost inevitably do so on their terms, with instrumentalities suited for their purposes.  At some point it becomes a matter of governmental grace that faith-based charitable organizations that may seek to cooperate with public authorities in fulfilling their missions are permitted to do so in a manner faithful to those missions.  The same consideration might apply to the tax-exempt status that enables these organizations to solicit contributions from private donors.  (If you think this concern is far-fetched, just consider the arguments of the dissenters in the recent Arizona Christian School Tuition Organization decision.)

Of course, our Constitution does have a First Amendment that guarantees the free exercise of religion, but there are real questions as to where free exercise begins and government regulation ends.  The Supreme Court will consider one area of limitation when it hears oral arguments this Wednesday (October 5^th) in the Hosanna-Tabor case, about which I blogged a few months ago.

At issue here is the scope of the ministerial exception from otherwise generally applicable laws, an exemption carved out by courts in recognition of the Free Exercise clause.  If governments can supervise and second-guess the terms on which churches and other religious organizations employ their ministers (or those who exercise ministerial functions), and if governments can decide who does and does not qualify as a minister, then religious freedom has been very seriously abridged.

Particularly troubling in this context is the position taken by the Obama Administration, which argues, against the position taken by virtually every major religious denomination, that, in the words of one scholar, “there is no general ministerial exception.”  As he puts it, ”the Administration takes a position more hostile to religious freedom than the ACLU and Americans United for Separation of Church and State, which acknowledge the ministerial exception in their amicus brief but argue that it should not apply to cases in which the alleged discrimination or retaliation is unrelated to religion.”  The Obama Administration seems to think that the freedom of religious organizations is adequately protected by our associational rights under the First Amendment.  Religion, in other words, is not special, but merely a form of association.  And associations are subject to all sorts of governmental regulation.

In conclusion, I’ll again quote the aforementioned scholar, law professor Michael Moreland:

[I]nstead of a constitutional limitation on the power of the state to interfere in the ministerial employment decisions of religious bodies and rooted in nine centuries of Western political theory, the Administration’s view implies that such freedom–in those rare instances where it exists at all–is merely the provisional outcome of weighing the state’s anti-discrimination interest against a religious institution’s right to expressive association.

Stay tuned.  I’ll have more to say after the oral arguments and then again after the Court hands down its decision.

This entry was posted on Thursday, October 13th, 2011 at 2:43 pm by Joseph M. Knippenberg and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.