Martin Marty on Supreme Court Hosanna-Tabor Ruling: Religious Exemptions and the Common Good

Martin Marty

At the Ekklesia website, noted scholar of American church history Martin Marty weighs in on the recent "ministerial exception" ruling of the Supreme Court.  Marty's take: the Supremes' willingness to grant churches a "ministerial exception" in laws outlawing discrimination for other employers is hardly surprising in a nation with the soul of a church.  "Ministerial exception" now goes side by side with "tax exemption" in the nation's lexicon for matters in which religion and the public square interface.

Does the special treatment that religious institutions enjoy in a unique way in the American context pose any dangers to either the body politic or to religious bodies themselves?  Marty thinks so.  He sees certain dangers on both fronts:

Does this mean that the church, which is supposed to be prophetic, has to mute critical roles and support religious institutions even when they have, in the eyes of their critics, malign purposes and malignant practices. Yes. Being uncritical is a price religious institutions pay for the goods they derive for their prosperity in a free republic and letting the institutions go free from taxing is the price it pays when it can only wink at religions damaging the public good, as many of them do.

But Marty concludes that, even with these risks, the American arrangement of privileging religion in certain ways and granting religious bodies exceptions and exemptions not given to anyone else works, ultimately, to the advantage of both religious groups and the body politic, which benefits in manifold ways from the contributions of faith-based communities when they're left free to operate according to their own dictates.  

And they are left free to do so in the U.S., Marty insists.  He flatly discounts the overblown rhetoric of those (and these include the U.S. Catholic bishops and, most recently, Benedict XVI) who spot dangers on all sides from a "radical secularism" that is said to be attacking religion in the U.S.

Marty's conclusion: 

There are many assaults on faiths, including Christianity, in the culture at large. But the generally free ride given religious institutions even in a “secular time” should inspire thought: With all its contradictions, the United States remains a wonderful place in which religions can prosper. They do well when they serve the common good freely and openly.

As I said when I first commented on the recent Supreme Court Hosanna-Tabor ruling, I certainly recognize the right of religious bodies to manage their own affairs and make decisions ad intra in matters having to do with determining their identity and who speaks on their behalf in an official capacity.

But on the other hand, I also see strong values weighing against this absolutist interpretation of religious freedom in the American context.  I think there are ways in which the common good is not always well-served by permitting religious groups and their leaders to have carte blanche to flaunt laws that apply to everyone else, particularly in the area of discrimination.  There are values to be maintained and served on the other side of the scales, as we weigh religious freedom against these countervailing values.

These values include the obligation to eradicate discrimination in all of our social and religious institutions, and to protect despised minorities against the tyranny and abuse of the majority.  And when religious bodies not only defend but actively drive social discrimination--as they frequently do--and are obdurate about their unfettered "right" to do so, sometimes judicial and legal strictures are necessary to counter that (mis)application of religion within a society.  To counter it for the common good.

I don't doubt for a moment, for instance, that many religious groups today genuinely believe that women and gay folks should be subordinated to heterosexual males.  What I do doubt is that permitting religious groups unquestioned freedom to practice discrimination--including in their employment practices re: "ministers"--necessarily serves the common good, and should go unchallenged by those concerned for the common good.

I say all this as someone who grew up in the midst of the Civil Rights struggle in the American South, when white churches positively and actively drove much of the racial discrimination enshrined in the peculiar laws of the Southern states.  I am certain beyond a shadow of a doubt that many of the white Christians among whom I grew up--and of whom I was one--genuinely believed that God and the bible mandate the separation of the races and the subjugation of people of color to white people.

But, eventually, a decision was made within the culture at large and then at the federal level to begin pushing back against those beliefs and the legal discrimination they enshrined.  And the president, Congress, and the Supreme Court eventually took the lead in dismantling the system of segregation despite the objections of white Southern Christians that what was being dismantled was mandated by divine will and these legal-judicial interventions in our culture represented an intrusion on religious freedom.

On the whole, these developments in the Civil Rights period strike me as very significant developments to move in the direction of the common good for all citizens.  And so I'm less sanguine than Marty is that the United States is "a wonderful place" in which we all benefit when religious bodies are allowed to prosper and serve the common good freely and openly.

There's another side to American history, and another side to the role religion has played in American history, that those who have lived with the underside see more clearly.  And from that underside, religion is altogether a more ambiguous phenomenon, and deserves much stronger critique and judicial-legal scrutiny than Mary appears to recognize, imho.