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Testing Hosanna Tabor

You knew it would happen sooner or later. Well, it's sooner. A Catholic school in Massachusetts has been charged with discrimination for refusing to hire a "married" homosexual man. The state court argues that the federal Hosanna Tabor decision does not apply, because he was being hired as a food service manager, and this is not a "ministerial" position.

I admit that I have not actually read the majority opinion in Hosanna Tabor, but my impression has always been that a major point of the victory there was that a religious school gets to decide who is and who is not ministerial staff.

However, it's possible that the Catholic school in this case didn't make an attempt to define the position in that way. That may have been the fatal mistake.

So far, I'm not seeing any word in the news about whether the school is appealing the state court's decision on constitutional grounds.

This interesting comment appeared in the comments thread at TAC:

Again, it is just my observation–being evangelical myself, but with one side of the family being Catholic and attending Catholic schools–I suggest that any Catholic schools that want to avoid these situations are going to have to tighten up the faith language in the job applications for both staff and students given the now dominant legal philosophy. Catholic schools have for a long time accepted wider arrays of students and employees than many Protestant schools and become more a schooling option for secularists who want better education than the public schools provide rather than Catholics persay. You can think of this as a good thing as long as the legal system leaves you alone, but increasingly that is not likely to be the case.

Most Evangelical schools have always had a tendency to be stricter on things like this and defined all staff roles as faith-based. As an example, in the school I attended lo, 30+ years ago, the lunch ladies (“Food director” and assistants) and the janitors were required to rotate and lead the prayers before lunch and other activities (e.g. sporting events) on a daily basis in addition to attending a certain number of chapel services with everyone else, etc. They also occasionally came into the classrooms to share perspectives too (particularly Home Ec, Woodshop, and Bible). Their employment applications specified that they had to be knowledgeable in scripture, live upright in all aspects of their lives so as to be examples for students at all times just as much as the teachers.

What do you know? I've been recommending this all along, and it looks like some of the evangelical schools were ahead of me, at least several decades ago. And they did it when they didn't even have to worry about such disgusting court challenges. They did it just because they really were running a unified religious community.

Christian schools must do this. All Christian schools. If you want your school to be a true Christian community in which the employees are role models for the young people, then you have to make that explicit and apply it, from the job application process onward.

Let's not be fools: The left hates not only Hosanna Tabor but all religious exemptions. If they could, they would close down any Christian school that maintained any Christian identity that contradicts their agenda. They will attempt to whittle down exemptions and eventually eliminate them altogether. "Oh, come on. Somebody who's running the cafeteria doesn't need to believe all that stuff you guys believe." "Oh, come on, this person is just teaching math. How can that be a ministerial position?" "Well, yes, this person is teaching theology, but why does it matter if he's a gay person? He's not actually ordained."

I have seen in a comments thread one commentator saying that the only reason for refusing to hire this man to be the cafeteria director was that the school officials "didn't want the children to be around gay people."

Well, in a sense, yes. That is to say, they didn't want to contribute to the normalization of homosexual "marriage" by employing someone who openly is in such a "marriage" at their school.

If one acknowledges at all the notion of a religious institution with a clear identity, that makes perfect sense.

Who knows what will happen if this state court decision is appealed. It's possible that the SCOTUS will "clarify" Hosanna Tabor in a more restrictive direction. It's possible that they will ask the school to make an argument that the employee position would have been ministerial. The worry in that case is that the school may not even have foreseen such a demand when advertising for the position and hence may be caught without an answer.

Christian schools, take note, and make sure that you have an answer.

Comments (17)

Even if 99% of religious schools were to have been pro-active and rearranged their internal affairs with this problem in mind, it was inevitable that some school or other be found without a pre-planned defense. For one thing, school entities range in size and complexity, some are little more than co-ops, and they don't have lawyers on retainer or any experience with lawsuits of any kind.

That being said, it is not clear what Catholic schools can actually do that will actually work. Even if they undertook to require all staff, including janitors, to participate in teaching and direct testimonial work (a huge sea change, but theoretically do-able), they still have huge exposure to lawsuits in the matter of accepting non-Catholic students. And refusing to accept non-Catholics will be viewed, in many cases, as contrary to the mission itself. Maybe not quite so definitively as a Catholic hospital refusing to treat non-Catholics, but still, it's a problem.

I still say the Catholic bishops need to fight fire with fire: on the day before public schools open in a city or county, they need to announce that the Catholic schools will not open, and demand that the public schools accommodate the students immediately. Let NYC find itself suddenly short of classroom space for 130,000 students, short by 4,000 teachers - i.e. short by more than an additional 100 whole schools, overnight - without ONE DROP of additional funding available. Let the mayor and the county politicians quail in fear of the tax hikes needed, and even more in fear of the debt load for expenses until the next round of taxes can even take effect. Then, of course, the bishops "reverse course" two days later, due to public outcry and demand. If the courts are going to put them out of business, make it happen with a bang and lots of pain to spread around, instead of dying a slow death of a thousand cuts and letting the local governments adjust over time.

The private (non-church-based) entities might not be able to do anything about it, even if they do try what Lydia suggested. Certainly the despotic tyrants on the left, like those in the Obama administration (i.e. the radicals of the 1960's now sitting in the liberal mainstream, not just the far,far left crazies of today) who are prepared to push an obomination-care agenda with a religious "exemption" that only applies to church-based entities will try to push that same mantra: that the first amendment refers to "churches" and not to religious sentiment generally.

they still have huge exposure to lawsuits in the matter of accepting non-Catholic students.

Not as far as employment practices under Hosanna Tabor. It made no requirement that you _serve_ only those of your own community. That requirement does appear to be found in some wimpy religious exemptions to state and local laws. Looks like it is in the Massachusetts statute (or one of them). But as far as having control over your own ministerial staff, you don't have to serve only those of your own community.

Now, accepting students from outside your community could involve other issues such as refusing to agree that some "transgender" student is really the opposite sex, and so forth. The question there could arise as to whether the school violates "public accommodation" laws. As far as I know, Hosanna Tabor addresses only employment discrimination law, not public accommodation.

http://thinkprogress.org/justice/2015/06/13/3668626/inside-southern-baptist-conventions-devious-plan-defeat-anti-discrimination-laws/

"According to the manual, “[e]mployees with some duties usually performed by (or associated with) clergy are more likely to be viewed as ‘minister-like’ by the courts. Consequently, courts are more likely to apply the ministerial exception to employment law claims based on alleged discrimination” against these employees. In essence, the manual advises that an employer can take a janitor, require them to lead the staff in prayer every so often, and POOF! the janitor is now a “minister” and the employer is free to fire that janitor because they are black, because they are gay, or because they are a woman."

"The most surprising thing about the manual is that it is available online in a place where any lay person, civil rights lawyer, or reporter for a progressive news outlet can download it. Judges typically do not look kindly upon litigants who try to game the law by assigning superfluous duties to their employees in an effort to fool the courts into believing those employees are something that they are not. And employers who follow the manual’s advice may find themselves in hot water once opposing counsel introduces the manual’s advice for employers seeking to circumvent civil rights law into evidence."

It will be definitely interesting to see how this plays out in the courts. There are already mainstream voices on the other side that clearly believe that having various staff lead prayers and the like in a rotation should be proof of discriminatory intent. This does not mean their arguments will win in court, but do we honestly want to hedge our bets that they will not? In addition to this Thinkprogress piece one of the speakers at the recent LGBT conference held by The Atlantic mentioned something along the lines that in order for there to be true "equality" that even churches cannot be exempt from SOGI "anti-discrimination" laws. Again, this is the mainstream left.

I will admit to being pessimistic on these issues. I do think these schools and churches alike need to do everything they can to protect themselves, including having all employees participate in the religious community, that such policies are simply wise and good in and of themselves. I am not convinced there is anything traditionally minded institutions, schools and churches both, can do to avoid being on the wrong side of the (inevitable?) exemption-less SOGI "anti-discrimination" laws forever. When the mainstream of the left/elite already views what traditionally minded institutions do as "discrimination against lgbt's" and that public policy needs to stamp out such "discrimination", what can we really expect to happen?

Think Progress is going to bloviate like that because they are a bunch of hateful leftists, but actually, that manual is going (as far as I can tell) right down the road that Hosanna Tabor very deliberately opened up. It isn't something that anyone needs to hide, and it isn't "gaming" any law. Religious entities _are_ the arbiters of the qualifications of their ministerial staff, and the government doesn't get to second-guess them about that.

Of course, that argument works best if the school or other entity really works to have a religiously unified community. There are all sorts of other ways to make this clear: Require all of your employees to attend chapel, for example. Require their religious duties not just "every so often" but in a clear rotation. Put the religious community issue right into all of your job advertisements. Make them sign a statement of pledge to understood Christian behavior on the grounds that they are all "ministerial role models" to the children/customers/surrounding community as a condition of employment. And so forth. Push it. Make it up front. Make a big deal about it. This is how you show you really mean it and are acting in good faith in creating a holistic religious community and atmosphere.

Not that Think Progress is going to like that any better, mind you.

Nope, they will not like that any better at all. I can only imagine they will say that all of those policies must be based on hatred/animus because no lgbt identifying individual could actually follow them and agree to them and as such are just mere pretext for unlawful "discrimination". Which, of course, should be laughed out of court.

Then again, saying not recognizing same sex relationships as marriages "discriminates" against homosexual identifying persons also should have been laughed out of court.

For what it is worth, I cannot imagine that it is out of good will and intent that they want these kinds of "anti-discrimination" laws to apply in religious schools and churches. A (misguided) sense of good will/intent may be plausible outside of religious communities. Granted, I dont want to be about assessing the motives of others, but this is just too obvious.

The funny thing about _that_ claim about a "mere pretext for discrimination against lgbt people" is that if you've grown up in the rather quarrelsome precincts of American fundamentalism, as I have, you know that it isn't really true. What I mean by that is that it is *at least* as likely that the freedom to fire such staff will be used against someone who is not a six-day creationist or who has been "smoked out" as not really holding to inerrancy in the required sense or, in a really strict organization, who drinks alcoholic beverages in the privacy of his own home. And I'm not making that last one up. Moody Bible Institute just *last year* rescinded the teetotal requirement for faculty, though they are still not permitted to drink on campus or with students (which is actually fine as far I'm concerned). And I know some friends who think that Moody was wrong, not for prudential reasons, but because they think teetoalism is mandated by God. Those kinds of issues come up fairly often because they are internecine battles and arise among Christians themselves.

Lydia and DR84,

The idea behind that ThinkProgress quote I like the most, which really exposes the insanity and craziness of the Left, is the idea that churches and religious organizations just can't wait and are excited and eager to use that Hosanna Tabor manual so that they can fire black and female staff. Because if there is one thing we all know about religious people, is that more than anything, they want to unjustly discriminate against black folk (and women!)

The madness will never end...

It really is madness. For me, that piece is the most definitive example I have come across that they are not at all about live and let live. There is no conspiracy, they really do want to use these "anti-discrimination" laws to hinder or destroy traditionally minded religious institutions.

I had been thinking about this earlier, just as a hypothetical (and please do not take the below as advocated for anything):

What if a compromise was proposed with regards to the Equality Act? The one where they want sexual orientation/gender identity "anti-discrimination" law to be effect in nationwide with no exemptions.

The compromise is that the following statements (or something like them) will be added to the Equality Act:

1. Beliefs about marriage, what it is and what relationships are marital, and beliefs about sexual morality can be sincerely held religious beliefs and are not necessarily hostile/discriminatory against sexual orientation or gender identity.
2. Religious institutions, including churches and schools, are the sole arbiter's of their religious staff. These institutions have full say in who does and does not qualify for a ministerial exemption.

I do not believe either of these statements contradicts the goal of nationwide sexual orientation/gender identity "anti-discrimination" law with no (religious) exemptions. Some may quibble about the ministerial exemption, but that already exists and would not be overturned by this act anyway. Both statements are also neutral and as such could equally protect them and their institutions.

Does anyone think that this compromise would be accepted? I think this is a question answers itself.

Frankly, I strongly doubt just statement 1 being added would be accepted.

It would not be accepted. Another point to remember is that statement 1 implies that institutions without official religious affiliation (say, a bakery or photographer!) might be able to make a religious liberty case against participating in celebrating sodomy. Some people _are_ trying to get this kind of thing passed even at the state level, and it's being treated as some kind of horrible fascist proposal, even when the state laws are just straightforward copies of the existing federal religious freedom restoration act and make no _explicit_ reference to sexual orientation.

And that is the zero-sum game.

Which, in my opinion, means that no compromise should have been made _ever_. People should have just admitted that there are times when it is _perfectly fine_ to discriminate on the basis of _orientation alone_. And so forth. I noticed in one story about the school in the main post that they tried to say that they are not discriminating against the would-be cafeteria manager on the basis of his orientation but on the basis of his being sexually active.

That ship sailed so long ago that its sails are not even visible anymore on the horizon. It's like they have been living in a cave that they would even _think_ such an argument would work. And yet in some venues Christian leaders have actually _accepted_ policies that say that one cannot and ought not "discriminate on the basis of sexual orientation" while piously declaring that they would never do so, because orientation by itself is not someone's fault, is not a sin, etc.

The proposed Equality Act specifically revokes RFRA laws. This might undermine any protection statement 1 offers for bakers, etc. Maybe even for religious institutions facing hostile workplace suits. I had in mind it may protect employees of "secular" companies who are known to hold traditional views. It may offer them some defense that their views really are sincere and religious and thus getting fired constituted religious discrimination.

Anyway, it seems the other side has figured this "no compromise" thing out. Any indication whatsoever in law that our views are not based on hatred of them, in all cases, is unacceptable. They are not going to stomach any protection, no matter how thin, for traditionally minded employees in (secular) workplaces.

1. Beliefs about marriage, what it is and what relationships are marital, and beliefs about sexual morality can be sincerely held religious beliefs and are not necessarily hostile/discriminatory against sexual orientation or gender identity.
It would not be accepted....And that is the zero-sum game.

This has to become the common understanding of Christians here: the secularists are themselves saying "we cannot live in peace with you when you allow your understanding of marriage, of sex, of morality, of the good, to be expressed in actions that affect others".

What is the natural consequence of A saying to B "I cannot live in peace with you"? Either (1) A and B are forced to co-exist without violence by a neutral third party, or (2) One suppresses the other outright, or (3) one imposes on the other limitedly - e.g. to the extent of promoting one but not directly penalizing the other; or (4) they live separately.

Secularist WANT to pretend that they are demanding (1), but you will notice the "neutral 3rd party", i.e. the government, is being DEFINED in secularist terms, as is the so-called "neutral condition". In their minds, "neutral" means no God or God-driven ideas in the public. It is a rather one-sided, narrow, close-minded, and intolerant notion of neutrality, to be sure. In reality, there CAN BE NO SUCH THING as a neutral government, because government must act for some perception of "the good", and this is precisely at issue between theists and secularists.

(3) is what this country tried to realize from @ the early 1800s to 1947 (and which failed), the soft sort inequality of favoritism for Judeo-Chritian faiths over other religious faiths and the various atheistic faiths.

(2) is just what we are getting to now. It is, according to every definition prior to the Age of Endarkenment, religious suppression.

(4) is rejected without being considered.

Are there any options I haven't listed?

If seculars can finally admit openly that what they intend is that society will not permit the full expression of the Christian faith, rejecting even the private* expression of core demands of Christian morals, Christians will be faced (once again) with the stark choice: submit to society and deny Christ, or embrace Christ and refuse to obey society - like the martyrs. For some of us, it will indeed be just that blatant, and the spiritual dangers just that real.

* It used to be radical wing-nut liberalism that declared "raising a child in the faith is child-abuse". Like the case with advocating murder of infants, you will now find this thesis supported in so-called mainstream venues, by supposedly sober and moderate thinkers. Ask yourself what you will do when it becomes officially illegal, as child abuse, to tell your child about God and Heaven and Hell.

Tony, in which category would place a society that simply does not have any special recognition for homosexual relationships and also does not treat a woman who says she is really man as if she is a man? Assuming that some people in this society want special recognition for homosexual relationships and also believe there are biological females that are truly men. I am not convinced that it is fair to say these people are at all being suppressed if they are not getting what they want in these areas. I am also not convinced this is society is truly co-existing when side actively wants to change the status quo.

"This has to become the common understanding of Christians here: the secularists are themselves saying "we cannot live in peace with you when you allow your understanding of marriage, of sex, of morality, of the good, to be expressed in actions that affect others"."

To take this even further, it seems to me that they cannot even abide an lgbt person having to work in a cubicle next to someone who holds our views even if they are never spoken of in the workplace. It also is bad enough that this is basically what is being said in broader society. However, they are even unable to live in peace if we wish to run churches and schools according to our beliefs. That is simply unbearable for them, because people who identify as lgbt will not be treated in our institutions as they think they should be.

"* It used to be radical wing-nut liberalism that declared "raising a child in the faith is child-abuse". Like the case with advocating murder of infants, you will now find this thesis supported in so-called mainstream venues, by supposedly sober and moderate thinkers. Ask yourself what you will do when it becomes officially illegal, as child abuse, to tell your child about God and Heaven and Hell."

I believe it is already common for people to speak of our beliefs about marriage and sexual morality as being abusive to children, particularly so called lgbt children. I hope I am wrong, but we may be a few trumped up social science studies from having our children being taken if anyone catches wind what they are taught in the home or what church they go to. Christians can thrive even if we cannot have church buildings and run accredited schools. I am not sure we can if our children are taken, or even if it is just a real risk that they might be. If this comes to pass (and I am *not* predicting it will), this strikes me as a soft form of genocide. Just a much less bloody way to get rid of an undesirable population.

Tony, in which category would place a society that simply does not have any special recognition for homosexual relationships and also does not treat a woman who says she is really man as if she is a man? Assuming that some people in this society want special recognition for homosexual relationships and also believe there are biological females that are truly men.

Sane. It's got nothing to do with religion. When the bank - with full society approval - refuses to accept a poor man's view that his bank balance "really" includes a $1 million deposit and insists with the full force of the law that it does not, this is not "suppression" of anything, it is enforcing reality in the face of those who don't like reality. To be a government is to tell people to do things they wouldn't otherwise do.

I am not convinced that it is fair to say these people are at all being suppressed if they are not getting what they want in these areas.

Right. Exactly right. But we do have special terminology for people who are told by government they can't do what they want in regards to their religion.

"Let's not be fools: The left hates not only Hosanna Tabor but all religious exemptions. If they could, they would close down any Christian school that maintained any Christian identity that contradicts their agenda. They will attempt to whittle down exemptions and eventually eliminate them altogether. "Oh, come on. Somebody who's running the cafeteria doesn't need to believe all that stuff you guys believe." "Oh, come on, this person is just teaching math. How can that be a ministerial position?" "Well, yes, this person is teaching theology, but why does it matter if he's a gay person? He's not actually ordained.""

I agree that they would close down any Christian school (and church) that contradicts their agenda. I am also, for the most part, convinced that unless something unexpected happens that they will get what they want or at least nearly so. I think it is possible that they overreach and there is a backlash against them that broadly spares Christian institutions. I also think it is possible that their movement loses some momentum, and the next generation simply is not as motivated to continue to pursue the broadly speaking, lgbt agenda, with the same fervor. Lastly, there is the (dim?) possibility that when the day comes, the Supreme Court rules in our favor. Above all, even if they succeed Christianity and traditional belief can still thrive in the shadows.

That all said, does anyone here basically disagree with the above? Am I more pessimistic than I should be?


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