Thursday, January 12, 2012

Supreme Court and Bishops Double-Team to Assault the Rights of "Religious Employees"

Two developments were in the news yesterday dealing with the rights of "religious employees," clergy and others employed by churches, synagogues and other religious organizations.  While thus far I have not found any commentary linking the two developments, I think they are linked in a way that could eventually deny some religious employees any employment protection whatsoever.

The first development was the announcement of the Supreme Court's unanimous ruling that ministers and unspecified other religious employees may not sue churches for employment discrimination--even in a case that involved no doctrinal dispute, but rather a church school's failure to provide reasonable accommodation under the Americans with Disabilities Act (ADA).

The minister in this case was described as an ordained teacher at a grade school run by the Lutheran Church-Missouri Synod in Michigan.  But as noted by The Washington Post, the problem with the unanimous ruling written by Chief Justice Roberts was that the Supreme Court provided no definition of what constitutes a religious employee and no precise guidelines stating which church employees are covered by the decision and which are not.  In fact, different justices offered concurring opinions, some trying to define "religious employee" and at least one saying he would leave the definition up to the churches.

The second development is what makes this lack of precision so dangerous.  The very same day, four prominent U.S. Catholic bishops joined 35 other conservative religious leaders in issuing a letter claiming that forcing them to respect the rights of church employees who contract state recognized same-sex civil unions violates the churches' freedom of religion under the First Amendment.

The civil unions issue is in fact the only example cited in the letter.  The letter contends that if religious organizations are forced to respect their employees' rights to a civil union, Religious employers would "face lawsuits for taking any adverse employment action -- no matter how modest -- against an employee for the public act of obtaining a civil 'marriage' with a member of the same sex.  This is not idle speculation, as these sorts of situations have already come to pass," the letter said.

The specter of churches retaliating against their employees for exercising a right guaranteed to them by the state is clearly what these religious leaders hope to achieve.  By failing to define which religious employees are covered by its expansive definition of the churches' religious freedom, the Supreme Court appears to be signaling its willingness to aid and abet the religious leaders' assault on their employees' civil rights.

Shame on these religious leaders for their bogus assertion that their organizational freedom of religion is more valuable and of greater importance than the religious freedom of their employees, or their employees' right not to suffer discrimination on the basis of religion, sex, or disability.  And shame on the Supreme Court justices for not comprehending the establishment of religion their ruling portends.

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