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. 

On the Particular Kind of Love Evinced by Jesus: A Better Criterion for Christianity

The film, Paul: The Apostle of Christ (2018), carries great weight theologically in that Paul describes a very particular kind of love that Jesus preaches and lives out in the Gospels. In so doing, the film shows an overlooked criterion by which people who claim to be Christian can be ascertained as such or not. One implication from the film is that Christianity has contained (and still contains) a number of nominal Christians who are not in fact Christian. A related implication is that the historically (and modern) criteria by which people are considered (and consider themselves) Christian is not as useful (and valid) as the overlooked criterion that is so salient in the film.

The full essay is at "Paul: The Apostle of Christ"

Self-Delusion Enabled by Religion: Former U.S. House Minority Leader Tom Delay and Monopolist John D. Rockefeller

It is hardly news that religion, even one based on divine love reaching down to “love thy neighbor,” can be stretched or simply ignored as needed by the desires for power and money. When these two are both engaged, religious rationales may be attempted nonetheless. I have in mind here the cases of former U.S. House Majority Leader Tom DeLay (R-TX) and the monopolist John D. Rockefeller. Just in evoking their Christian faith to justify their sordid conduct in politics and business, respectively, these two men may be seen as astounding cases of the length to which adherents can go in using religion even in spite of obvious hypocrisy.

On January 10, 2011, Tom DeLay was sentenced to three years in prison on charges of money laundering and conspiracy to commit money laundering. He had used a political action committee to illegally send corporate donations to Texas House candidates in 2002. Prosecutors claimed the money had helped Republicans take control of the Texas House. That in turn enabled the Republican majority to push through a Delay-engineered congressional redistricting plan that sent more Texas Republicans to Congress in 2004, strengthening DeLay's political power. In the face of this charge, DeLay simply repeated his longstanding claim that he did nothing wrong. "I can't be remorseful for something I don't think I did," DeLay said in a 10-minute speech to the judge.[i] This statement is not unlike those of John D. Rockefeller, the founder of the monopoly Standard Oil, which was accused in the late nineteenth century of restraint of trade. For his part, Rockefeller saw himself as a Noah or Christ figure in that he was trying to save struggling refiners from ruin by buying them up.

Ida Tarbell, Rockefeller's chief critic, believed the titan was under a sort of self-delusion. For example, Tarbell, whose father was an oil producer who resisted Rockefeller's grasp, pointed out that the titan's "Christ-like" efforts to "save" drowning refiners included ironically drowning those who refused to come aboard Standard Oil. Did Noah kill any animals who refused to come on the ark? Did Christ drown any people who refused to be saved? Clearly not. Rockefeller's application of religion to his monopolization is thus suspect in terms of his actions. It is possible that Delay suffered from a similar rationalization or state of denial.

Just as Rockefeller, who attended Church more than once a week through his 90s insisted that things are right between him and his God, DeLay pointed to his faith in Jesus as, in effect, rendering the verdict nugatory in terms of what really mattered. To be sure, DeLay probably did view himself as innocent of criminal conduct. "This criminalization of politics is very dangerous" he charged, "It's dangerous to our system. Just because somebody disagrees with you they got to put you in jail, bankrupt you, destroy your family."[2]  Antithetically, Gary Cobb, the lead prosecutor, averred that DeLay had "put his principles, ideals and beliefs above the laws of Texas." Particularly when one's religious beliefs are invoked along with a criminal defense (i.e., that it was politics that was being criminalized), one should be on guard against the possibility of self-delusion. 

Both Rockefeller and DeLay had immense power, and their respective views of non-culpability bore on their use of power. The ends justifying the means rationale allows for a slippery slope, which in turn can enable delusion with regard to culpability. Of course, in DeLay's case, an investigator could have simply looked at the money exchanges and compare them to the law. According to The New York Times, "a jury determined that he conspired with two associates to use his Texas-based political action committee to send $190,000 in corporate money to an arm of the Washington-based Republican National Committee. The RNC then sent the same amount to seven Texas House candidates. Under Texas law, corporate money can't go directly to political campaigns."[3] Yet as clear as this sounds, it is surprising how divergent DeLay and Cobb were with respect to their respective interpretations. If we take the verdict as correct, we might find it troubling that DeLay not only denied any culpability after the verdict, but also went on to invoke his salubrious condition in virtue of his religious faith. Such an invocation can easily turn into a justification, with the result being that great wrongs, such as the Crusades, can be done in the name of a religion of love. Followers of Jesus, who says not to lift a sword, have done just that in droves through history. DeLay invoked his religious faith and yet acted like one of the money-changers in the Temple. Rockefeller drowned struggling rivals who refused to be bought by Standard Oil, the great “combination” that Rockefeller himself designed as an alternative to destructive competition. Clearly, religion can be manipulated or ignored by even its adherents. Yet it is also possible that religion itself, being pliable on account of the presence of interpretation, support or enable its role in hypocrisy.

For more on John D. Rockefeller's use (or exploitation?) of religion, see God's Gold, available at Amazon. 

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1. James C. McKinley, “DeLay Sentenced to 3 Years in Conspiracy and Money-Laundering Case,” The New York Times, January 10, 2011.

2. Ibid.

3. Ibid.

Business and Religion: Financial Ethics Found Lacking in the Vatican's Institute of Religious Works

In probing corruption leads in the Vatican Bank, Italian financial police stumbled onto a plot in July 2012 to smuggle €20 million into Italy. The alleged culprits included a monsignor, a financial broker, and a former member of Italy’s secret service. For his part, the cleric was said to have had people pretend to give him donations of €560,000 so he could furtively pay the financial broker for his role. Crime, Italian politics, and the Vatican Bank: hardly a novel discordant tune even then. That not just any bank, but that of a church, could stray so far from what would reasonably be expected from a bank whose formal name is the Institute of Religious Works still boggles the mind. 
The intersection of ethics, religion and business is fraught with complexity.  A religious verdict from ethical premises is possible nevertheless. Generally speaking, religion does not boil down to ethics. John D. Rockefeller was unethical in restraining trade when he ran Standard Oil. Yet pressing the railroads for excessive rebates and drawbacks (compensation from the railroads serving other customers) does not de-legitimate the titan’s claim to have been a Christ-figure in saving “drowning” competitors. Theological inconsistency, rather than unethical conduct, would be needed to expunge Rockefeller’s industrial-religious identity. Such inconsistency can be found in Rockefeller having forced competitors unwilling to be bought out into bankruptcy; Jesus did not inflict harm on people who refused to follow him. Human ethical systems cannot limit God, which is omnipotent.
Divine-sourced ethical principles, such as those in the Ten Commandments, are regarded as religious in nature, rather than merely soured in a human ethical system. Accordingly, were Rockefeller to have broken one of the Ten Commandments in running Standard Oil, his commercial-religious identity could be assailed. In the case of Msgr. Scarano at the Vatican Bank, his clerical, not to mention Christian, identities are vulnerable to the allegations that he bore false witness and stole money from the Vatican. That Kant concluded from his ethical system that lying can never be ethical is irrelevant. However, that Kant’s categorical imperative can be re-stated as, Treat other rational beings not just as means, but also as ends in themselves, suggests that Kant’s theory can be understood as the Golden Rule, which is binding in religious terms. Hume’s theory that determining something as unethical “just is” the psychological sentiment of disapproval finds no such corresponding theological ethic and is thus invalid in assessing the commercial-religious identities of either Rockefeller or Scarano.
As with Rockefeller, the case of Scarano begs the question, how can a person so religiously inclined so delude oneself in such matters?  If driving a car well were important to me, I would be double sure that my driving is as flawless as possible. I would ask friends to ride along or follow me from behind to assess my driving. Were one of them to tell me that my passing skills leave much to be desired, I would work on them—maybe even take a driving lesson. Of course, no one can be a perfect driver. So too, Scarano cannot be sin-free. Even so, were I to be a really bad driver and yet represent myself as highly skilled, people would naturally wonder about my state of mind. At the very least, the sustained cognitive dissidence (i.e., allowing for or ignoring hypocrisy in one’s conduct) likely in Scarano’s mind raises the question of the clerical screening process for mental health.
Moreover, that the Institute for Religious Works has been embroiled in charges of corruption time and again suggests that cognitive dissidence has come to characterize the Vatican’s culture. Considering the questionable prioritizing of avoiding a scandal over defrocking and turning in rapist priests, a pattern of cognitive dissidence can be suspected. The question is perhaps what religious works would look like. From this answer, the question would pertain to how finance could be put into service without undercutting the religious nature of the works.
In conclusion, ethical conduct, religion and finance are a tricky business not easily disentangled. A preliminary point can nevertheless be made with some certainty. Specifically, unethical conduct does not necessarily invalidate a religious identity in a person’s commercial or financial role. The ethical principle would have to be part of a divine decree, such as in the Decalogue, to contradict the assumed commercial religiousity.  A human-constructed ethical theory or principle cannot by definition limit God’s omnipotence (i.e., all-powerful), whereas God’s making of a moral divine decree cannot contradict God’s nature, or essence. Both Rockefeller and Scarano can be found culpable in religious-ethical terms bearing on Christianity even though it is possible to be both unethical and religious without contradiction.

Source: Gilles Castonguay and Liam Moloney, "Vatican Bank Probe Leads to Three Arrests," The Wall Street Journal, June 28, 2013

For more on Rockefeller's application of Christianity to his monopoly, as well as more generally the history of Christian thought on business, see my book, God's Gold, available at Amazon.

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The Russian Orthodox Church as a Political-Moral Force: A Case of Religion Overextended?

While visiting the Pskovo-Pechersky Monastery in northwestern Russia in 2000, Vladimir Putin wrote in the guest book, “The revival of Russia and growth of its might are unthinkable without the strengthening of society’s moral foundations. The role and significance of the Russian Orthodox Church are huge. May God protect you.” This statement is revealing concerning what has perhaps fueled the Russian president’s vision, at least ideally.

First, Putin may have a historical perspective, meaning that he did not come into office merely to gain power by enriching his connections (i.e., the oligarchs) and make use of Soviet authoritarian tools he had learned while working at the KGB. Rather, I suspect he looked back at the Czars who had made Russia into an empire well before the Soviets came on the scene.  

Second, Putin’s habit of being a road-block on the UN Security Council may extend beyond his embrace of the absolute or unfettered national sovereignty doctrine to exercising (or announcing) Russia’s might as one empire alongside the E.U., U.S. and China. That is to say, using the veto can effectively demonstrate might without the cost of a military show of force.

Third, Putin wanted to send a signal of his support for the Russian Orthodox Church. Not unexpectedly, the New York Times reported in 2012 on the continuance of the ascent of the Church as a political force in Russia. At the time Archimandrite Tikhon Shevkunov stood “at the center of a swirling argument about the church’s power and its possible influence on [Putin].” Shevkunov’s claim that Putin had saved Russia from “vulgar liberals” who nearly destroyed Russia in the 1990s  must have been music to the sitting president’s ears. Interestingly, however, when the cleric is said to have referred to modern Russian women to “a drunk girl standing by the bus stop,” Putin reportedly replied, “Father, you have gone too far.” Nevertheless, to have such a traditionalist Church on such a sort of power trip in the earthly realm can be dangerous to society in terms of what I would call moral dogmatism.

 Archimandrite Tikhon Shevkunov, head of the Sretensky Monastery in Moscow    NYT

Putin’s identification of the Church with the “strengthening of society’s moral foundations” could lead to those foundations being narrower than simply that which is moral. In other words, a particular view of what counts as moral could delimit the contours of the moral foundation of the society. Such an approach would be dogmatic in the sense of being arbitrary because equally valid moral standpoints differing from the Church’s position would be excluded even though they are moral.

Moreover, to conflate religion and morals as being one and the same ignores the fact that there are many immoral acts lauded in the Bible. More abstractly still, human moral systems, unlike theological claims, are not transcendent in that moral theories are based in our domain. To be sure, religions such as the Abrahamic faiths include moral strictures among the divine commands, but even here the moral commandments are second to the theological ones (or are derived from them and stated very broadly, as in “love your neighbor”). Put another way, were specific moral claims or principles on the same level as the theological, the Book of Job would not make sense. Job was morally not at all blameworthy and yet the theological point of God’s omnipotence (all-powerful) means that the theological cannot (by definition) be limited by what we think is moral. For us to say that Job does not deserve to suffer cannot trump God’s power, as if God were limited by our moral judgments. Do Russian Orthodox lay persons really believe that God likens Russian women to drunk sluts at a bus stop just because Shevkunov happens to hold that opinion?  I doubt it. Moreover, I doubt that God would have “vulgar liberals” inserted into the Bible. For one thing, some of the more sexually “immoral” (by modern standards!) acts by some of the heroes in the text would have to be expunged. 
Sanctioning particular moral views by theological claims and then using political influence such that those views become the cement walls of society’s moral foundations unfairly excludes other moral views from being part of the moral foundation. This is particularly relevant in the case of an empire because it is by definition heterogeneous (i.e., diverse). Different cultures had been brought into Russia at least by the death of Peter the Great. Unless there are moral universals that extend to particular applications, one can expect (as fully legitimate) there to be a bricollage of moral values interlaid in the foundation.  To identify the foundation itself with a particular institution—and one that is not primarily oriented to the moral dimension—is to ask for trouble, as the moral perspectives that are dogmatically excluded must surely in their very legitimacy press their case, either formally or as mounting pressure politically.

Source:

Sophia Kishkovsky, “Russians See Church and State Come Closer,” The New York Times, November 1, 2012.

On religion as distinctly religious and yet applicable to leadership in business organizations, see Spiritual Leadership in Business, available at Amazon.

The Young Messiah: A Film Rendering Religious Meaning as Distinct

The 2016 film, The Young Messiah, admits to being an imagined year in Jesus’s childhood. To be sure, history and even Biblical passages are drawn on, but the genre of the film is fiction. This label seems too harsh, for Josephus, an ancient Jewish historian, mentions Jesus, “the so-called Christ, and his brother James." Josephus was not a believer; he did not believe that Jesus Christ was (or is) the Son of God. So, given Josephus's intent to record history rather than write scriptures or, more specifically, faith narratives, scholars can conclude that at least one historical mention is made of Jesus and his brother as having lived. To be sure, the historian could have been wrong; he may have heard secondhand that Jesus and James did exist, and the teller might have had an agenda unknown to the historian. Even so, Jesus and James are mentioned in one historical account, just as the Hebrews having been in Egypt is mentioned on a historical tablet. We must be careful to distinguish these records from that which is in faith narratives concerning Jesus and Moses. We simply do not know whether that material has any bearing on the historical, as no historical accounts are (as of yet) extant. 
Very little from Jesus's childhood is in the Gospels, so the screenwriter had to use imagination to fill out the gaping holes. Crucially, they were filled with content consistent with, though not in, the Gospels. In other words, the film contains religious meanfulness that is admittedly from imagination in large part, and yet that meaningfulness is strong even so, and can be readily associated with Jesus's ministry. In other words, the film enables the viewer to see that religious meaningfulness need not be from faith narratives directly, and, furthermore, that they need not be conflated with historical accounts--something even the writers of faith and of history would not have done. How, then, can we override their intents, which are clear from their writings. Even today, theologians, for instance, do not regard themselves as historians, and vice versa.

In short, a distinctive religious meaningfulness can be separated from the domain of history without any loss, and history need not be used as a crutch. Human imagine, so informed as it will by both, can produce valid religious meaning. 

The full essay is at "The Young Messiah."