Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, January 5, 2016

A Washington Post piece on SSM, religious freedom, and the ministerial exception

This recent piece, by Michelle Boorstein, might be of interest.  Prof. Doug Laycock (among others) is quoted as saying:

“For the Church, they are employing this guy who flouts their teachings. His presence on the payroll undermines what the school is trying to teach the kids and what the Church is trying to preserve among the adults,” Doug Laycock, a University of Virginia law professor who specializes in religious freedom, wrote in an email.  “These battles over religious doctrine should be fought out within churches, not in the secular courts.”

Unfortunately, the piece consistently frames the issue as involving a conflict between "conservative" religious groups and the antidiscrimination norm.  This framing is common, and rhetorically powerful, even if not entirely accurate.  

Michael Sean Winters has a long blog post about the article, and the larger issue, here.  And, he provides a link to Cardinal Wuerl's statement, which is here.   Among other things, Cardinal Wuerl says that "the Church . . . enjoys freedom of religion to decide who will carry out Catholic ministry. This includes the right to determine when conduct is otherwise adverse to the Church’s ability to fully pursue its mission and interests."  He's right.

I agree with Winters that the Church should not "go looking for a fight" with respect to these matters.  However, I think it needs to be said that (a) others are "looking for a fight" -- that is, there are highly motivated litigants and well-funded activists for whom it is important to use litigation and administrative complaints precisely in order to undercut the religious freedom of the Church's institutions -- and it is naive and hazardous to imagine otherwise and (b) it is not such a bad idea as Winters suggests for Church leaders to listen to the lawyers when it comes to writing contracts, manuals, policies, etc., that will help to protect not merely the Church's legal rights (as Winters suggests, the Church can and should do better than simply standing on her rights) but the Church's religious freedom.  The "case-by-case" approach that Winters endorses has a lot to commend it but, at the same time, it can create legal difficulties in those cases where the Church has to insist on hiring-for-mission.


Garnett, Rick | Permalink