Red Mass Marks New Supreme Court Term; Key First Amendment Case Ahead
The Justice Department and EEOC challenge ‘ministerial exception.’
BY JOAN FRAWLEY DESMOND
| Posted 10/3/11 at 3:09 PM
WASHINGTON — The 2011 Red Mass, held yesterday in the nation’s capital, marked a new term for the Supreme Court.
Briefly forgotten amid the spectacle of crimson vestments and a Knights of Columbus honor guard at the Cathedral of St. Matthew the Apostle was a critical First Amendment case that will get its day at the nation’s high court. On Oct. 5, the justices will hear oral arguments for Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553.
The case turns on whether a Lutheran church, which fired a teacher at a church school, should be subject to federal anti-discrimination laws protecting disabled employees.
The Lutheran church contends that the intrusion of the courts in this matter “would be a revolution in relations between church and state.” The U.S. Conference of Catholic Bishops backs that position, arguing that the nation’s courts have long supported the “ministerial exception,” which allows churches to make appointments without interference.
The bishops are deeply concerned that the Justice Department has sided with the Equal Employment Opportunity Commission, thus bolstering the challenge to the ministerial exception. Protestant denominations are also following the case with alarm.
“This case is hugely important for all Christian denominations and every religion. It is the first time the Supreme Court has heard a ministerial-exception case,” said Michael Moses, associate general counsel for the U.S. bishops’ conference.
The Red Mass drew five of the six Catholic justices on the Supreme Court: Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas.
Echoes of Benedict in Germany
At the cathedral, the justices were joined by a throng of legislators, led by Speaker John Boehner, R-Ohio, as well as members of the diplomatic corps.
Cardinal Donald Wuerl of Washington celebrated the Mass, and Archbishop J. Peter Sartain of Seattle, the homilist, kept the focus on fostering the spiritual foundations of democratic governance.
Archbishop Sartain called on the assembled justices, government representatives and lawyers to commit themselves to the pursuit of the good and the true, anchored in a Christian understanding of human freedom.
“St. Paul recognized that Christian freedom is not only freedom ‘from’ the constraints of sin, but freedom ‘for’ positive striving for fulfillment in Christ, a natural and critical outgrowth of faith and one’s desire to live life to the full, peacefully and integrally,” said the archbishop.
“He also knew that at the heart of the Gospel is a mandate, which both draws challengingly on the deepest resources of human freedom and opens up for the individual and for society the most complete fulfillment possible: and that is the spirit of loving self-giving, made manifest in acts — in lives — of total sacrifice.”
In an echo of Pope Benedict XVI’s recent address before the German parliament, Archbishop Sartain noted that King Solomon “caught God’s eye” because he asked not for power or wealth, “but for understanding, so that you may know what is right.”
The homily offered a gentle response to secularists who view public servants that are also committed Catholics as a threat to the separation of church and state.
Catholics believe in a Savior who came to serve and not be served. Thus, it remains “impossible to overstate the importance of the perfection and integration which self-forgetfulness, generosity and humility bring to a Christian’s life of service,” Archbishop Sartain said. “Why? Because these virtues manifest our desire not just to do well, but to do the good and to deliberately manifest in our lives the One Who Is Good.”
It’s Up to the Churches
The annual Red Mass in the nation’s capital has become the unofficial marker for another Supreme Court term, which traditionally begins the following day, as it did this year.
The assembly of government leaders at the crowded 58th liturgical celebration suggested that the nation continues to respect the central role of faith communities. But Church officials have become alarmed about growing threats to religious freedom generated, in part, by the federal government.
In recent months, Church officials contend, the Obama administration has issued a number of regulations that challenge the freedom of Catholic institutions to administer their programs according to their religious mission. In the wake of the Department of Health and Human Services’ interim rule to mandate that virtually all employer-provided health plans include contraceptive services and sterilization, the U.S. bishops urged the faithful to register their concerns with the federal government.
It is not clear when the HHS will finalize the list of mandated preventive services for women, which are part of the new health-care insurance reform bill. A call to the office of the HHS assistant secretary asking for the expected date when the news would be announced was not returned.
The constitutionality of some elements of the bill has been challenged in the courts, yielding different opinions. The Obama administration has asked the Supreme Court to hear the case, and most experts predict the high court will do so, possibly this year.
Now, the bishops are closely following the Obama administration’s challenge to ministerial exception in the Hosanna Tabor case before the Supreme Court. The USCCB has filed an amicus brief on behalf of the Lutheran church.
On Sept. 30, a press release issued by the USCCB employed unusually strong language to characterize the Justice Department’s stance in the Hosanna Tabor case
as an “attack on the critically important ministerial exception,” a constitutional doctrine accepted by every court of appeals in the country that leaves to churches (not government) the power to make employment decisions concerning persons working in a ministerial capacity.”
Michael Moses, the associate general counsel for the U.S. bishops’ conference, argues that it is “up to churches, not the government, to make employment decisions about people who are serving in ministerial capacity. Whether a church fires a youth minister or hires a pastor, the government needs to keep its hands off these decisions.”
He characterizes the position of the federal-employment commission and the Justice Department as a “radical” departure from accepted constitutional doctrine.
The EEOC counters that respecting the ministerial exception in such cases “would critically undermine the protections” in federal anti-discrimination laws.
Moses said it was “hard to predict the impact of the case until we see the opinion: There are different ways you can win or lose a case.”
Carl Esbeck, a professor at the University of Missouri School of Law, also describes the position of the Department of Justine and the EEOC as “fairly extreme.”
Esbeck noted that the Obama administration has provided both a “purist” position and a fallback position, “which is not uncommon. You state your purist position — the preferred position. Then you say, “Well you could still rule in our favor by taking a narrower position” — by finding on behalf of the teacher. That is what they did in their brief.”
The “purist” position, in Esbeck’s view, is a “form of ‘neutrality’ — what I call a ‘religion-blind government. In other words, the government doesn’t have to take into account that there are religious citizens with beliefs and practices. And that means there is no ministerial exception.”
The “fallback” position, he said, is that the “ministerial exemption is only for clergy: The Lutheran school teacher had an ecclesiastical office, but she was not clergy. They leave it open whether even a nun is clergy. They are members of a religious order, but are they clergy?”
As the Supreme Court begins hearing oral arguments in the case, the federal government’s prominent role will be critical.
“Whenever the Department of Justice is involved, it is standard procedure that the justices of the Supreme Court give special attention to the brief of the United States of America. It is not just a private party. Here is the government acting on behalf of the people. This is the position of the Obama administration,” said Esbeck.
“The Supreme Court doesn’t have to follow this, but they can’t just shrug this off.”
He applauds the U.S. bishops’ decision to establish a committee on religious liberty, and predicts that as the bishops once fomented public opposition to Roe v. Wade, they will now lead the fight to bolster religious liberty.
Richard Garnett, a top constitutional scholar, endorses a more aggressive response.
Said Garnett, “When the government attempts to regulate such matters — for example, when it attempts to apply anti-discrimination laws to the relationships between religious communities and their ministers, it oversteps and violates the separation of church and state.”
Register senior editor Joan Frawley Desmond writes from Chevy Chase, Maryland.
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