The biggest conundrum in church-state relations today is how to determine the extent of collective religious rights–specifically, to what degree religious entities should be permitted to operate according to their own lights, when those lights put them at odds with the rights of individuals in civil society. At the extremes, the answers seem clear. On one end, a sect that embraces a doctrine of ritual cannibalism cannot be allowed to kill people and eat them. On the other, it must be able to choose its clergy free from laws prohibiting religious discrimination in hiring. But there’s so much in between that’s anything but clear. Which brings us to our two latest challenges.
On Wednesday, the Supreme Court will hear arguments in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a case that in the past month has been transformed from a minor dispute over the reach of the so-called ministerial exception into a fundamental challenge to the right of religious bodies to enjoy a blanket immunity from employment laws. For an evenhanded statement of the facts of the case (plus a reasonable conclusion), take a look at Wendy Kaminer’s post over at the Atlantic. Boiled down, Cheryl Perich, a teacher at a Lutheran school who had some limited responsibility for religious instruction, was fired in a way that, she claims, violated the Americans with Disabilities Act. Hosanna-Tabor claims that because Perich possessed a ministerial office, it did not have to abide by the terms of the ADA. Through the lower courts, the issue seemed only to have to do with whether the widely recognized “ministerial exemption” applied to teachers like Perich. But in August, the Solicitor General argued in his response brief that the Supreme Court should address (for the first time) the legitimacy of the exemption per se.
Speaking to the religion newswriters in Durham a few weeks ago, a representative of the Becket Fund, which is representing Hosanna-Tabor, claimed the if the SG’s argument prevails, a synagogue would not be able to fire a rabbi for unorthodoxy. That’s plainly wrong. It’s not that the SG is arguing that employment law should trump First Amendment considerations, only that this is an area for case-by-case treatment. So if the rabbi in question was indeed fired because of a doctrinal stance, the First Amendment would protect the right of the synagogue to get rid of him. But if doctrine proved to be merely a pretext when the real reason was that the rabbi was fired because he is now confined to a wheelchair, maybe not. And why, under those circumstances, shouldn’t he enjoy the protection of the ADA?
Meanwhile, the Catholic bishops are up in arms about a proposed HHS rule under the new health care law that would require organizations to include contraceptive services in their insurance plans. While there is an exemption for religious organizations, it is a narrow one limited to those that “primarily serve persons who share its religious tenets.” That wouldn’t apply to many Catholic hospitals and institutions of higher learning, which employ and serve–and provide insurance coverage to–large numbers of non-Catholics. According to what principle should an institutional religious right to deny coverage trump an individual’s civil entitlement to it?
In the most reasonable letter I’ve seen on either side–one that acknowledges the need to “accommodate a number of considerations and the sometimes conflicting consciences of various individuals and groups in our society”–Notre Dame president John Jenkins proposes that HHS employ the more commodious definition used by the IRS, under which a “religious employer” would be one that “shares common religious bonds and convictions with a church.” That’s all well and good, but what’s the neutral principle at work here–that any religious employer should be allowed to craft an insurance plan that conforms to its own values? So that if you happened to work for the Jehovah’s Witnesses, your plan wouldn’t cover blood transfusions under any circumstances? Of course, had health care reform managed to achieve a single payer system, then we wouldn’t have to conjure with an institutional religious right to limit coverage. As it is, the entanglements of church and state are only becoming more and more complex–and intractable.