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Rule of Law

Holder’s Quiet Court Attack on Religious Freedom

January 10th, 2012 - 7:35 am

Eric Holder’s Department of Justice has quietly advanced legal arguments in direct conflict with Catholic teaching and the teaching of other Christian denominations. If the Department of Justice prevails, the Catholic Church and other churches will have a difficult time preserving doctrinal traditions central to church teaching, particularly in church schools. The quiet and radical legal attack comes with perilous political risk, because active Catholics may determine Obama’s fate in states like Pennsylvania, Ohio, New Mexico, Iowa, and Wisconsin.

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.

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