The Ministerial Exception: A Religious Right to Discriminate

In early 2012, the U.S. Supreme Court recognized, for the first time ever, a “ministerial exception” to employment discrimination laws, saying that churches and other religious groups must be free to choose and dismiss their leaders without government interference. In his written opinion, Chief Justice Roberts wrote, “The Establishment Clause [of the First Amendment to the U.S. Constitution] prevents the government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own.” The wrench in the works here concerns the matter of delimiting the exception, given the inflation in what constitutes “ministerial” in terms of tasks.

As for what positions in a religious organization constitute ministers, the court was “reluctant to adopt a rigid formula.” In his concurrent opinion, Justice Thomas highlights the inherent difficulty that the government would face in delimiting the ministerial exception by trying to define the ministerial role. “The question whether an employee is a minister is itself religious in nature, and the answer will vary widely,” he wrote. “Judicial attempts to fashion a civil definition of ‘minister’ through a bright-line test or multifactor analysis risk disadvantaging those religious groups whose beliefs, practices and membership are outside of the ‘mainstream’ or unpalatable to some.” In other words, the state, just in determining what constitutes a minister, violates the Establishment and Free Exercise clauses in entering the realm of institutional religion.

For all the problems that a judicial or governmental definition of “minister” would entail both constitutionally and for the religious organizations, there is also the risk that the latter could take advantage of the leeway and define virtually all of their jobs as ministerial. Already as of the date of the court’s decision, Christian churches had been busy expanding “ministerial” to include chores like weeding garden areas, preparing food, and even serving as security to protect church property. In other words, church officials had discovered that attaching “minister” to a task can attract potential volunteers for what are actually pretty mundane tasks. I would not be surprised to find a “taking out the trash” ministry at some church—praying, perhaps, over the decaying food for its prompt removal.

I see the same mentality behind the tendency of people to consider themselves to be professionals. Among the most notorious are the self-described experts in leadership who refer to themselves (and each other) as “coaches.” In other words, I suspect that “minister” serves a similar marketing purpose as “coach.” As a result, religious organizations may get away with being able to discriminate in filling (or replacing) virtually any of their jobs, even those of an office manager and accounting clerk.

Sensing the possibility that Roberts’ opinion could be exploited, Justice Alito, joined by Justice Kagan, argues in a concurrent opinion that the exception “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.” Weeding a garden or protecting the property does not involve being a messenger of a religious institution’s particular faith. Even in parochial schools, the court’s decision “appears to encompass, for instance, at least those teachers in religious schools with formal religious training who are charged with instructing students about religious matters,” according to the New York Times. Even so, I suspect that religious organizations will continue to expand “ministerial” tasks for marketing purposes yet suddenly taking the designations seriously when discrimination needs a defense.

Accordingly, I foresee the need for a few more court decisions to test the limits, hopefully without the courts getting too involved in what can be a religious (or marketing) question. Perhaps the underlying, utter unresolvable problem is that while religious officials and administrators are involved in a transcendent-based enterprise governing by divine law, those people are also human, all too human, and thus necessarily subject to civil law. Therefore, the matter of delimiting the ministerial exception is not as clear as Thomas suggests. The court’s decision is therefore likely not the end of the story.

Source:

Adam Liptak, “Religious Groups Given ‘Exception’ to Work Bias Law,” The New York Times, January 12, 2012.

Is God the Invisible Hand?

A Baylor University survey on religion and economics in 2011 revealed something that may be distinctly American, culturally speaking. The results indicated that about “one in five Americans combine a view of God as actively engaged in daily workings of the world with an economic conservative view that opposes government regulation and [advocates] the free market as a matter of faith.”[1] Specifically, those Americans believed that the “invisible hand” of a competitive market is actually God at work. Put another way, the assumption is that the economy “works” because God wills it to by intervening directly in the market mechanism itself. Government regulation, in diverting economic supply and demand from “the invisible hand,” is thus sinful. Regulating the economy challenges God’s omnipotence (i.e., power) by interfering with God’s intervention in our daily lives via the operation of the market mechanism. 

A problem for Americans who view God as actively intervening in Creation in general and through the market mechanism in particular concerns a market equilibrium short of full employment wherein unemployed people, who would starve without government assistance, are abundant. Would an interventionist universal deity allow so much innocent suffering, particularly when Jesus is said to advocated caring for the poor? Or can we generalize to say that all of unemployed deserve to be without, and perhaps even to die? This seems particularly harsh, even regarding those workers who get fired for having an intractably bad attitude. Lest the “interventionist” Christians point to charity (derived from caritas, which is higher-oriented human love), why would God set the unemployed up to rely on non-profit institutions even though they cannot be relied on to feed and house people who need sustenance assistance on a daily basis.

A more fundamental problem facing the “divine interventionist” crowd concerns the troubling assumption that as finite beings we are able to have such specific knowledge of God's will as to be certain that the invisible hand is indeed that of God intervening in Creation on a daily basis. St. Denis of the sixth century would remind the "interventionists" that the divine is inherently beyond the limits of human cognition and perception. Even revelation, Augustine warned, must go through a dark window to reach us mere mortals. We cannot, therefore, have knowledge of the particularities of God's will. 
To suppose, for example, that a member of a church choir and bus driver suffered an accident days before a concert because a demon was going after the choir itself whereas God was necessarily behind the choir represents an impious presumption of human knowledge. Such a rationale strains even belief. For some reason, when the human brain enters a religious frame of mind, usual checks on inordinate reasoning/assumptions can go haywire without the mind detecting it. Assuming they cannot be wrong, interventionists may not realize the harm brought on the unemployed by efforts to block regulation that could reduce market volatility and even bring market-functioning closer to full employment. 
Moreover, the confluence of the “interventionist” theological belief and a political/economic ideology is a red flag that self-idolatry is in the mix, or perhaps even the determining force, because ideology is human, all too human. Activist religious groups such as Unitarian-Universalists, Congregationalists, and Quakers, for instance, are at risk for placing particular political, economic, or social ideologies at the forefront in distinctly religious terms. One Unitarian minister once told me that certain social structures are sacred. I replied that as such structures are human artifacts, the appellation of sacred effectively divinizes us, hence is self-idolatry. In other words, faith itself can come to be identified with a particular economic structure--one in which economic inequality does not exist, which may be utopian. The minister was not amused, and I'm sure he believed that he could not be wrong about his belief being salubrious in religious terms. The same can apply to political and economic conservatives who assume their opposition to government regulation has a divine foundation. Most (81%) political conservatives said in the survey that tone ultimate truth exists in the world. The question is perhaps whether they believe that they know that truth and furthermore cannot be wrong about it.

To be sure, one in five Americans surveyed in 2011 said they did not believe that God intervenes in their daily lives, and by implication, through economic markets. Rather than believing that God directs greed to good material ends through an “invisible hand,” the theologically “non-interventionist” Americans favor the human use of government to mitigate economic harm by reducing economic inequality. Such Americans who favor government intervention while not believing that God intervenes in human life tend to believe that there is no one ultimate truth. This may mean that such people are not as likely to assume that they know God's ways and furthermore that it is impossible to be wrong about such knowledge. Yet the non-interventionist view risks the assumption that since God doesn't intervene to help suffering people, why should I? Government regulation can serve as a substitute that lacks compassion and is thus less worthy in religious terms. Furthermore, non-interventionists may be vulnerable to placing their human ideology in the religious void created by the non-interventionist assumption. God doesn't get involved, so my ideology is highlighted even in religious terms because it can solve the problem. 
It is worth observing in closing that relying on government regulation itself, whether from interventionist or non-interventionist auspices, can be inadequate, especially in democracies in which the interests of the regulated prevail in the halls of government due to lobbying and campaign contributions. Especially without a truth-based religio-normative basis for regulation, greed may get the upper hand if religion itself is eliminated as possible a constraint. A normative bulwark based solely on even an ethical principle may not be strong enough to constrain the basic desire for more (i.e., greed). Of course, believing that God does not want markets to be regulated can also enable greed. That the Clinton Administration kept subprime-mortgage-based (risky) bonds from being regulated contributed greatly to the financial crisis of 2008. A religio-normative basis for a non-regulatory economy could thus really put a people at risk. 

1. Cathy Lynn Grossman, “Religion Colors Money Views,” USA Today, September 20, 2011. 

On Christian theological takes through the centuries on greed and wealth, see God's Gold at Amazon.