Friday, January 13, 2012

NY Times Editorial: Supreme Court Decision about "Ministerial Exceptions" Unwise

Though some Catholic centrist commentators have sought to portray the recent Supreme Court decision recognizing a "ministerial exception" as a "big win," the New York Times thinks otherwise.  In the view of the Times, the ruling defers to religious bodies in a "sweeping way" that is likely to serve neither the best interests of religious groups or of society at large.  

The Times editorial concludes,

The court’s conception of the ministerial role is more encompassing than it has been defined by state and federal appellate courts. Its sweeping deference to churches does not serve them or society wisely.

As I've noted in my two postings about the court decision (see also here), the ruling is written in such a way that it appears to apply not only to such official representatives of a religious group as an ordained minister, but also to any representative deemed by that group to represent it in some official capacity.  As the Times editorial notes, this gives religious groups a broad "right" to discriminate in hiring and firing decisions within the institutions they control.

It defers to religious bodies, as the conclusion rightly notes, in a way that jettisons a long tradition of legal and governmental defense of the rights of protected minorities--even (and especially) in institutions owned by religious bodies.  The ruling concedes to religious bodies a "right" to discriminate that is not permitted to any other groups under the law, and it therefore moves against the longstanding trajectory of precedent-setting legal rulings that seek to extend rights to marginalized minority groups:

Although the court does not provide much guidance on how to proceed in future lawsuits against churches as employers, the ruling has broad sweep. It abandons the court’s longtime practice of balancing the interest in the free exercise of religion against important government interests, like protection against workplace bias or retaliation. With a balancing test, courts consider whether a general law, if applied to a religious institution, would inhibit its freedom more broadly than justified and, in those circumstances, courts could exempt the church.

What the Supreme Court recognizes--the existence of a special, unique "right" to discriminate on the part of religious groups--is something that the U.S. Catholic bishops have been demanding for some time, in their increasingly shrill confrontations with the Obama administration.  As I have noted in posting after posting about this issue, the U.S. Catholic bishops were signatories to a letter to the administration in 2010, demanding the "right" to practice discrimination in hiring and firing decisions in religious institutions.

When the Obama administration announced that it would no longer defend the Defense of Marriage Act because DOMA enshrines insupportable discrimination in law against a minority group, the U.S. bishops responded with another assertion of their special, unique "right" to discriminate on grounds of sexual orientation.  And so the Times editorial is correct, it seems to me, when it expresses concern about the sweeping and undefined scope of what the Supreme Court decision has just permitted to religious groups--and about the damage that this sweeping deference may do both to religious groups and to society as a whole.  Since--as the editorial also rightly notes--the decision also represents a decision on the part of the highest court in the land to adopt a hands-off approach to cases involving discrimination in which religious bodies are doing the discriminating, and thereby abandons legal precedents defending minorities against discrimination even when religious groups are involved.

And so I repeat the question I've kept asking ever since this ruling was handed down and Michael Sean Winters published a notice about it in National Catholic Reporter with the title "Big Win at SCOTUS": a big win for whom?  And in what particular battle?

This ruling hardly seems a big win for minority groups, if one of the underlying intents of folks like the U.S. Catholic bishops is to use it to continue pushing their "right" to discriminate whenever they wish to assert that God blesses their discrimination.  It hardly seems a win for gay and lesbian citizens, since the laserlike focus of that demand of the USCCB of a special "right" to discriminate is quite specifically on LGBT citizens.  

And it surely isn't much of a win for churches like the Catholic church that want to tell the public they represent the redemptive, all-embracing love of Christ in the world--a love that reached out particularly to those on the margins and brought them in.  

A big win for whom, Michael?  And what's the battle we're fighting with this language of "wins"?  Who's on what side?  And why is the approach of the Catholic bishops of the U.S. to their brothers and sisters who are gay always configured as a battle in which there have to be winners and losers?

How does that have anything at all to do with Jesus and what church is supposedly all about?

No comments: