Like so much from this Justice Department, Holder’s radical legal
positions are at odds with long American traditions. This latest species
of Holder’s radicalism is a frontal attack on faith communities.
In the case of Hosanna-Tabor Evangelical Lutheran Church and School v. The U.S. Equal Employment Opportunity Commission,
Holder’s DOJ argued that a church cannot fire an employee for acting
contrary to church teaching, and contrary to an employment contract that
incorporates that teaching. A teacher filed a complaint to the
government about how the school handled her narcolepsy, which presumably
would involve sleeping at work. The church school then fired the
teacher because the church forbids lawsuits among believers based on 1
Corinthians 6:1-8. (“But instead, one brother takes another to court—and
this in front of unbelievers!”)
This particular Lutheran church had well established dispute
resolution mechanisms within the church, and based on church teaching.
Instead, the teacher went to the government, contrary to church
teaching.
Holder’s Justice Department believes that religious schools should
not be able to enjoy a longstanding exemption to various employment laws
which conflict with church teaching, or, the “ministerial exception.”
Assistant to the Solicitor General Leondra R. Kruger (photo below)
argued that the religious school could not fire the teacher for filing a
complaint to the government even if church teaching forbids it. (Some
background on Kruger here, here, and here). At oral argument, Kruger advocated positions so extreme that even Justice Elena Kagan appeared to reject them.
It’s not hard to see where this slippery slope slides. What if a
teacher in a Catholic school does something directly contrary to
Catholic teaching? Or, consider this possibility offered by American Catholic:
Then, too, what also about Catholic women using this principle to sue the Catholic Church in the United States because they are excluded from the priesthood? There’s absolutely no doubt that when it comes to ordination, the Catholic Church discriminates in favor of males. Should SCOTUS be able to tell the Catholic Church in the United States that it must redress the imbalance?
Yes…if, as an organization, the Catholic Church is bound by federal employment discrimination statutes.
No…if, as an organization, the U.S. Catholic Church is exempt from federal employment discrimination statutes.
Far fetched? Not to Kruger.
At oral argument, she wouldn’t categorically preclude the
possibility. Instead, she told the Court that the government interest
isn’t currently sufficient to justify an assault on the male priesthood.
Kruger said “the government does have a compelling and indeed
overriding interest in ensuring that individuals are not prevented from
coming to the government with information about illegal conduct.” In
other words, even if church doctrine prohibits you from settling
disputes with the church through the government, the Obama
administration cares not. Holder wants informants, or as the DOJ prefers
to call them, complainants.
You can read the transcript of the argument with details of Kruger’s assault on religious independence.
Sometimes the radicalism of Obama’s Justice Department is on full display, like when it sues Arizona or blocks
South Carolina voter ID. Other times, the radicalism creeps along the
margins, as Kruger did at the Supreme Court, arguing that the long
respected ministerial exception to church doctrine is no longer
respected by this president and his Justice Department.
Expect a decision very soon in the case. Let’s hope if Kruger gets her way, the voters notice in November.
Update: The Court ruled today. In an UNANIMOUS decision, the Holder Department of Justice was slapped down and the First Amendment's religious liberty protections upheld. Bravo!
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