Holder's Quiet Court Attack on Religious Freedom
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.
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.