Wednesday, August 16, 2017
A few days back, I noted a welcome decision by the Court of Appeals for the Second Circuit in a ministerial-exception case. I didn't mention in that post the fact that, along the way, the lawyer for the employee had repeatedly made anti-ministerial-exception arguments that were so overheated (and, frankly, anti-Catholic) I felt sorry for the judges and law clerks who had to work, I'm sure, to find actual arguments to engage. Well, if you want an example of (a) how not to write legal arguments and (b) the unhinged nature of some of the opposition to religious freedom for institutions, see this petition for rehearing. Here's a taste:
The Panel’s opinion, left uncorrected, will be remembered as the Dred
Scott10 of religious liberty cases. Like Dred Scott, it will be correctly seen as the
judiciary ignoring the rights of an individual for the sake of powerful interests,
there slave owners and here, the Roman Catholic Church and Christian Right. And
just as Southern law eventually deemed someone with a tiny fraction of African
blood as a “Negro” whose rights could be diminished, the Panel’s decision will
allow greater and greater expansion of who a “minister” is, so that eventually a
huge percentage of Church-affiliated or “religious” employees will be deemed
ministers by the courts (even if not by their Churches), and virtually all employers
immune from civil law.
In the Roman Catholic elementary and high schools alone, both teachers31
and principals will be faced with both the actual or the threatened loss of their civil
rights and their own First Amendment freedom. This may include around 100,000
parochial school teachers and principals, and because these educators educationally
and physical supervise their wards, the Panel’s ruling also imperils the over 2.3
million parochial school children who are educated today in these schools. Then
double that number for all non-Catholic school, and then add all other Churchaffiliated
workers, and we have a huge number of Americans who will soon
discover that the federal courts, let by the Second Circuit, have taken away their
civil rights on the altar of Organized Religion.
And . . .
The undersigned humbly requests that the Court seriously and thoughtfully
consider this Petition. This is a tremendously important case. In the big picture, it
is more important than a death penalty case or a billion dollar antitrust case,
because what is at stake is our democracy.