May Religious Organizations Discriminate? Should We?

The United States Supreme Court recently ruled, in HOSANNA-TABOR EVANGELICAL LUTHERAN CHURCH AND SCHOOL v. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION ET AL., that Religious Organizations may discriminate according to the dictates of their religion. 

They may.  But should we?

The United States Constitution’s first Amendment establishes, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

For those of us in the work of religious organizations, this means that no law or government regulation can interject actively to support or inhibit the free faith actions of our organizations.  It is the essence of the open society and the healthy democracy.

As George Washington wrote to Moses Seixas, head of the Tuoro synagogue in Rhode Island in 1790, “The Citizens of the United States of America have a right to applaud themselves for having given to mankind examples of an enlarged and liberal policy: a policy worthy of imitation. All possess alike liberty of conscience and immunities of citizenship.”

The heart of the case is the principle that hiring and firing a religious leader requires no explanation or cause, as far as the power of the state is concerned.  There is no secular remedy for the religious leader in the courts.

Chief Justice Roberts wrote, The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.

Two clarifications are important for us, when it comes to our religious leaders.  First, the organization itself defines who is, and who is not a “minister.”  Second, the organization itself asserts that the firing is or is not due to a tenant or doctrine of the faith. The court can not subjectively review that claim.

Justice Alito, and (Jewish) Justice Elana Kagan also wrote, The “ministerial” exception should be tailored to this purpose. It should apply to any “employee” who leads a religious organization, conducts worship services or important religious ceremonies or rituals, or serves as a messenger or teacher of its faith.  If a religious group believes that the ability of such an employee to perform these key functions has been compromised, then the constitutional guarantee of religious freedom protects the group’s right to remove the employee from his or her position.

Furthermore they say, Religious autonomy means that religious authorities must be free to determine who is qualified to serve in positions of substantial religious importance.  Different religions will have different views on exactly what qualifies as an important religious position, but it is nonetheless possible to identify a general category of “employees” whose functions are essential to the independence of practically all religious groups. These include those who serve in positions of leadership, those who perform important functions in worship services and in the performance of religious ceremonies and rituals, and those who are entrusted with teaching and conveying the tenets of the faith to the next generation.

For Judaism this includes all religious school classroom employees, youth leaders, day school Judaics faculty, holiday specialists, adult education teachers, scholars-in-residence, torah readers, service leaders, social justice project leaders, and of course Rabbis and Cantors.  Any or all of these people may be hired or terminated regardless of the secular or religious reason of the hire/fire.

In order to be free, Justices Alito and Kagan conclude that a church must be free to appoint or dismiss in order to exercise the religious liberty that the First Amendment guarantees.

In hierarchical churches  the appointment of such roles is hereby a protected right of the central church.  In synagogues, where hire/fire of employees is ultimately an action of the board, it is the board alone whose discretion determines the religion when they engage or dismiss a religious leader.

The United Jewish Communities, however, actively lobbied congress in 2007 for the restoration of the Americans with Disabilities Act.  In an advocacy letter circulated throughout the American Jewish Community, we said to our members of congress that

"Sacred texts from our diverse faith traditions agree upon the inherent value and sacredness of every human being, regardless of physical or mental ability. Our traditions teach us of our moral obligation to provide assistance to those in need, ensuring equal access for all people and helping facilitate the full participation of individuals with disabilities in our communities. We are committed to eradicating all forms of discrimination and intolerance, which alienate individuals and divide our society. We believe that the restoration of civil rights to the disabled community is of crucial importance to this struggle.

"The right to earn a livelihood is one that should be granted to all people, regardless of physical or mental disability. We urge you to show your support for equal rights by co-sponsoring and supporting the ADA Restoration Act of 2007."

Signatories on the letter included:

United Jewish Communities

Union for Reform Judaism
American Islamic Congress
American Jewish Committee
Catholic Charities Disabilities Services
Central Conference of American Rabbis
Disciples Justice Action Network (Disciples of Christ)
The Episcopal Church
Evangelical Lutheran Church in America
Friends Committee on National Legislation
Hindu American Foundation
Islamic Society of North America
Jewish Council for Public Affairs
Jewish Labor Committee 
Jewish Reconstructionist Federation
Muslim Public Affairs Council
National Advocacy Center of the Sisters of the Good Shepherd
National Council of Jewish Women
NETWORK: A National Catholic Social Justice Lobby
Presbyterian Church (U.S.A.) Washington Office
The Salvation Army, United States
United Church of Christ, Justice and Witness Ministries
United Methodist Church, General Board of Church and Society
Unitarian Universalist Association of Congregations
United States Conference of Catholic Bishops

With all that said, I believe that Constitutionally this was an excellent decision.  But the dignity and equality of my religious leaders and teachers is also held as a religious value taught by Judaism.  We should hold ourselves up, as a matter of our religion, to the standards of the Americans with Disabilities Act regardless of our right to a lower moral rung on the ladder.  The court has asserted our legal right discriminate.  The Torah may not be so forgiving.