Saturday, May 9, 2020
In anticipation of the "ministerial exception" cases being argued on Monday, a reminder about our brief from the St. Thomas Religious Liberty Appellate Clinic, which shows that colonies' narrow definitions of minister, including required education credentials, helped spur founding-era religious-liberty protests by Baptists and others, ultimately contributing to adoption of the First Amendment. There is a little more scholarly detail in this article by my students, Nathaniel Fouch and Erik Money, and me.
Religious-school teachers who have significant functions in teaching religion classes or religious approaches to other subjects, or in planning, leading, or overseeing religious exercises, fit within the proper definition of "minister"--regardless of whether they have a ministerial training or formal title as the 9th Circuit required in these cases. Founding-era religious-liberty objections ran specifically against credentialing requirements that prevented organizations from extending leadership to laypersons with the gifts and commitment to teach or lead in religious matters.
In his "Appeal to the Public for Religious Liberty" (1773),Isaac Backus, leader of the Massachusetts Baptists, attacked New England colonial laws that required “each parish to settle a minister” but then disqualified teachers who lacked the government’s preferred training: a college degree. The laws, Backus said, violated the principle that God “gives gifts unto men in a sovereign way as seems good unto him." Religious groups, not the civil judiciary, should determine the relevant gifts, talents, and credentials for their teachers and leaders.