Liberty Insider

Ministerial Exceptions And Prisoners

Three Angels Broadcasting Network

Program transcript

Participants: Lincoln Steed (Host), Alan Reinach

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Program Code: LI000138


00:22 Welcome to the "Liberty Insider."
00:24 My name is Lincoln Steed, Editor of Liberty Magazine,
00:27 and we're going to discuss some very important
00:32 court cases relating to Religious Liberty.
00:34 Remember this program brings you news, views, discussion
00:37 and up to date information on Religious Liberty
00:39 issues in the U.S and overseas.
00:42 But these cases relate to the U.S.
00:44 And my guest Alan Reinach, Attorney,
00:47 so I think you can give us some
00:49 inside information on these.
00:50 There is a court case that's really currently
00:53 as we film this, and of course
00:55 we don't when it comes out
00:56 and when the decision will come down,
00:57 but the Supreme Court is currently looking at case,
01:01 Hosanna-Tabor versus
01:02 you can probably give the full title.
01:04 Well, it's the actually the
01:07 Equal Employment Opportunity Commission
01:09 that filed the case.
01:11 Presenting the Hosanna-Tabor!
01:12 Hosanna-Tabor Evangelical Lutheran Church and School.
01:16 And it has, I think myself some incredible implications
01:20 way beyond just, you know, how they displays this case
01:22 because it's concerning the exception,
01:27 ministerial exception given to churches
01:30 and church run operations.
01:32 Let's put it in context before
01:34 we get into the facts.
01:35 The real issue is whether Christian schools
01:38 will be allowed to remain
01:40 Christian schools in America whether...
01:42 Expedient and even church organizations maybe
01:45 come under governed oversight
01:46 like never before at this point.
01:47 Can we as Christian schools hire people
01:51 who we think are representative
01:54 of our faith to teach into transmit the faith
01:57 to our young people or is the State gonna
01:59 come in and tell us whom we can or cannot hire,
02:03 and in fact require us to retain teachers
02:07 that we deem unsuitable to transmit
02:10 the faith to our young people?
02:11 Now I will give personal preface
02:13 to this and of course, you now,
02:14 probably challenge that take it another direction.
02:16 But I think this is very hazardous
02:20 because of an anti-Satan to this
02:23 where in a number of cases Christian colleges
02:27 wanting government funding have seen it fit
02:30 to de-minimize their religious function,
02:33 which was ill-advised in my view, ill-advised because...
02:37 Can we name the institute?
02:39 No, but there is more than one. We oppose that.
02:42 Yeah, but there is more one,
02:43 but there is one that I have...
02:44 I got in trouble for opposing it.
02:47 But the dynamics were very interesting.
02:48 Clearly it was an argument of expediency,
02:51 it's the church constituency.
02:53 So, on the one hand... Always believed and still hope
02:55 that these institutions are promulgating...
02:58 You want make your institution appear
03:00 to be nonsectarian in order to qualify
03:03 for government funding.
03:04 And now when this exception principle comes up
03:08 suddenly we have to prove what I think has been
03:12 the case that there is pervasively religious
03:16 function, and this is..... or church
03:17 related function of the schools.
03:18 And this is really the problem
03:19 is that the courts no longer understand
03:24 what religious education is, if they ever did.
03:27 And so they looked at the status of a teacher
03:31 in Lutheran school who, you know,
03:35 how religious were her functions well let's see.
03:39 She taught religion classes
03:41 four days a week. Can I get back...
03:43 She read here students three times a day in prayer,
03:46 led a chapel service school wide twice each year.
03:51 But the courts have said that she was not a minister,
03:56 was not sufficiently engaged in religious activity
04:00 and therefore she could sue for discrimination.
04:03 What.... I mean she had some health issues
04:06 as I remember it was, what's the illness
04:10 when you fall asleep, Narcolepsy. Well...
04:13 She had narcolepsy and it appears
04:17 that was the issue that led them to dismiss her.
04:20 And her sue claims that's irrelevant because of,
04:26 sorry, yeah, she claimed that, the school claimed
04:29 that is ministerial exception,
04:31 so they have the right.
04:32 So let's bring this in contacts.
04:35 They can't bring these conditions forward.
04:38 The courts have generally recognized
04:40 that because of the first amendment,
04:42 because of what Christians have come to despise
04:46 the separation of church and State,
04:48 because of the separation of church and State
04:51 the courts are gonna stay out of telling the churches
04:55 about how to run their internal affairs,
04:58 and one which has to do with who is suitable
05:01 to be a minister within the church.
05:04 Well the Lutheran schools like the
05:07 Seventh-day Adventist schools,
05:09 we give a ministerial credential to teachers,
05:13 why because we regard teachers as performing
05:18 a vital ministerial function in transmitting
05:22 the faith to the kids.
05:23 But all the courts see is the education
05:26 to them is secular not religious.
05:29 And just because you have a Bible class
05:31 for 45 minutes or an hour in day or you pray
05:35 with that kids that does not make you a minister.
05:38 But the woman who is suing here,
05:40 she actually had accepted the both privileges
05:45 and the responsibilities of a ministerial license,
05:49 a ministerial credential, she was a minister.
05:52 But that I understand that different churches
05:55 in different ways formerly recognize different
05:58 employees as other a church pastor or minister,
06:03 right, or teacher with the ministerial
06:04 accreditation, right.
06:06 But that's not what determines whether or not
06:08 the States gives them that exception.
06:11 Well, in this case alright...
06:12 ...it is to establish within the church environment...
06:14 in this case... So there's no synchronicity
06:16 between the Church determining
06:19 this person is a minister
06:20 and the State recognizing it,
06:21 that's not really what is stake here.
06:22 This case is up before the Supreme Court.
06:25 It hasn't been argued yet.
06:26 Probably in the fall sometime,
06:29 by the spring of next year of 2012
06:33 is when a decision would be expected.
06:37 The courts, State and Federal courts
06:39 all over the country have been all over
06:41 the map on how inclusive or how narrow
06:44 they want to define the freedom of churches
06:48 to hire and fire clergy and ministers
06:50 and who is covered by this exception.
06:52 There is lot of stake isn't it?
06:54 Really in some ways they are very rude,
06:56 the operational autonomy of a church
06:58 organization from the State.
07:00 No question, because what this, look.
07:02 There are protections built into Federal law
07:06 that you can hire and fire ministers
07:09 and discriminate on the basis of religion, okay.
07:14 But the ministerial exception covers
07:17 discrimination of any kind,
07:19 so for example race discrimination, gender, age,
07:23 and in this case disability.
07:25 And it's unseemly it's a violation
07:29 of religious freedom for the State
07:31 to intrude on the internal affairs of the church.
07:35 But we learned long ago that when it comes
07:38 to a lot of our Labor Laws like do we have to comply
07:41 with the Equal Pay Act and pay women
07:44 the same has what we pay men.
07:46 Yes we do. We have to comply with minimum
07:49 Wage Laws and all kinds of Labor Laws
07:51 just because we are church
07:52 we still have to treat people
07:56 according to the Labor Laws.
07:57 But this has to do with how we select
08:01 and who we deem suitable to teach
08:04 children in a Christian school.
08:06 And so this really gets to the heart of whether
08:09 we're even permitted to operate
08:12 Christian schools in this country
08:14 because if we can't select our own faculty
08:18 for our schools then we might as well close up shop.
08:21 It's true, and then we don't need to talk
08:23 about it here but I need to make an illusion
08:25 to there is parallel gruyere developing around
08:30 home schooling and the State control.
08:32 So Christians who in the past have either
08:35 had church schools or educated their children
08:38 themselves may find that under extreme pressure
08:41 by law as well as by society to send their
08:44 children only to a State school.
08:46 And, you know, if you want of getting
08:49 a little glimpse of how important it is
08:51 that we keep our Christian schools.
08:53 I did a radio show on my Freedom's Ring program
08:57 a few months ago about four Baptists families
09:00 in Germany that were arrested
09:02 because they objected to their fourth graders
09:07 participating in the sex-ed curriculum.
09:10 They were being taught a very progressive...
09:12 This is a big reason for lot
09:13 of them home school of course...
09:14 And so you know there is all kinds of reasons
09:18 why public education can get out of hand
09:21 and why we need our Christian alternative.
09:24 Yeah, and of course this whole creation
09:26 Evolution debate is, sure, or is as of many people
09:30 of faith reason to send the children to public
09:32 to private religious schools. No questions.
09:34 My kids learned far more about
09:37 Evolution in Christian schools,
09:40 but they learned it from the standpoint of a biblical
09:43 worldview so they understood the weaknesses of it.
09:47 They know it inside out far better than kids
09:50 in public schools, yeah.
09:51 But they also understand limitations.
09:53 You know, currently within Seventh-day Adventism
09:55 there is a bit of vibrate debate
09:57 you don't need to get worried about,
10:00 how evolutionist is being taught
10:02 in one of our colleges and this lot going on
10:05 we don't need to share here.
10:06 But the underlying thing people need
10:07 to understand there is a great advantage
10:10 in a Christian school to be taught
10:12 something like Evolution,
10:14 but it's not though in unfiltered manner
10:16 it though in relationship to their faith. Right.
10:18 I would be very unhappy if in an Adventist school,
10:23 college or whatever that they never taught
10:26 about Evolution they would be sitting
10:27 to ducks to go out in the world.
10:29 They need to be forewarned, educated, and informed.
10:31 I know, you know, I'm on the same kind premise.
10:34 You know, we're sitting here in the studio
10:36 a few days before the raptures been predicted.
10:39 Well, I taught my kids all about the rapture
10:42 in the context of verses like, you know,
10:45 the Lord shall descend from heaven with a shout
10:47 and with the voice of the archangel
10:49 and the trump of God
10:51 and it's gonna be so quiet,
10:53 nobody is gonna hear it, yeah.
10:54 They got it. They understand.
10:57 You know, you have to expose kids
11:00 to these ideas in a context that helps them
11:03 to think for themselves and understand the depth of it.
11:06 So, if you've got any guess to know
11:07 where this is going,
11:08 it's always had the double guess to Supreme Court.
11:11 But do you think, they are going to close
11:12 or narrow or widen the ministerial exception.
11:15 What are the tea-leaves that
11:17 we can read into the situation?
11:18 You know, this Supreme Court
11:22 is kind of funny on religious issues.
11:24 They have been very hostile to the establishment
11:27 clause and this arguably is doctrinally
11:31 an establishment clause case
11:33 because it's Church of Economy,
11:35 it's the State keeping its hand off the church,
11:38 separation church and State.
11:40 But the court has been, this Roberts Court
11:42 has been pretty good on understanding
11:45 free exercise issues.
11:47 And of course there is an element of free
11:49 exercise here, yeah.
11:51 At the same token, when it comes to employment
11:54 the court has a mixed record
11:57 but they tend to favor the business
11:59 over the employer, employees,
12:02 although there have been some
12:03 good cases for employees.
12:06 My sense is that we will muddle through
12:10 somehow with a reasonable protection.
12:14 They will endorse the concept
12:17 of a ministerial exception
12:19 which is a First Amendment Principle,
12:21 it's in a constitutional premise that the court
12:24 stay out of telling the churches
12:27 who they can define as ministers.
12:29 Am I right in presuming not everything
12:30 has to go to the Supreme Court,
12:32 the mere fact that they have taken it,
12:33 must show they haven interest in this topic?
12:36 Well, okay. Typically cases go to
12:39 the Supreme Court when the lower courts
12:42 are divided and in conflict about
12:44 how they are applying the law.
12:46 And that's what's an issue here,
12:47 is a conflict among the circuit courts of appeal.
12:52 We'll be right back after a break to conclude
12:54 our discussion of this very distinct Supreme Court
12:57 case and go on to another one that
12:59 you may find even more interesting.
13:00 Stay with us don't, go away we'll be right back.
13:11 One-hundred years, a long time to do anything
13:14 much less publish a magazine,
13:16 but this year Liberty,
13:18 the Seventh-day Adventist voice of religious freedom,
13:21 celebrates one hundred years of doing
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14:20 One hundred years of struggle,
14:22 one hundred years of victories,
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15:09 Welcome back from the break.
15:10 Before the break I was talking with Alan Reinach
15:14 about a very interesting ministerial exception case.
15:18 But there is another case that we should share
15:22 that gets to my sensibilities
15:24 more on prisoner's rights.
15:26 And this is a case that Supreme Court
15:28 already decided earlier this year.
15:32 Now, I'm a student of prophecy
15:35 as well as the student of Current Day events.
15:38 It strikes me first of all that we are rapidly
15:41 moving into what the Bible portrays
15:43 last day events where who knows when Gospel
15:47 come when the final persecution will come,
15:50 but this clearly a predicted time of general
15:52 application not just persecutions as they exist
15:55 in different countries when Christians,
15:57 people of faith, can be expected to be in prison
16:00 for more gratuitously for their faith.
16:02 And it troubles me that even in these good times
16:06 when you are brought up on crime and sent to prison,
16:09 you lose lot of your rights, of course,
16:11 and as well as that there is more prejudice.
16:14 There is whole different atmosphere often
16:16 over at force in a prison.
16:19 And this case concerns the right
16:22 to access for religious materials.
16:24 So let's put this in context for a minute
16:27 because as you say you commit
16:29 a crime you're locked up.
16:31 You have forfeited many of your rights.
16:34 But there is something so basic to humanity
16:37 and so basic to our country that you don't forfeit.
16:41 And that is your basic religious freedom
16:44 to have a Bible or religious literature
16:48 and to participate in worship services.
16:51 We have laws to that effect.
16:55 I get letters all the time.
16:56 I had one just week ago from someone
16:58 saying that they have been forbidden
17:00 or at least severely blocked in their
17:05 application to get a Bible, right.
17:07 So even though we say that they happen easily.
17:09 Back in the 90s when the Supreme Court
17:12 decimated the Free Exercise Clause
17:15 with the infamous peyote case, congress
17:17 responded past a broad statute protecting
17:22 religious freedom, Religious Freedom Restoration Act.
17:24 Supreme Court struck it down
17:26 and said it's too broad you have to have
17:30 a statute that remedies a specific problem.
17:34 So Congress held hearings
17:36 and in those hearings there were two big
17:39 problems that emerged what were the great
17:42 free exercise problems in American life.
17:45 One had do without churches are treated
17:48 in the land use process in there communities.
17:51 And the other one had to do with the rights
17:53 of prisoners and how prisoners' access
17:57 to religious services, access to literature,
18:00 is routinely denied.
18:02 And so Congress stepped in
18:04 and applied constitutional protection
18:07 and a statute past in the year 2000
18:09 affectionately known by its acronym, RLUIPA,
18:13 Religious Land Use
18:14 and Institutionalized Persons Act.
18:16 And it put the onus in, you know,
18:20 in the case of prisoners on prisons to respect
18:22 the freedom of religion of the inmates.
18:26 Yeah, little aside for those that regularly
18:29 watch this program, what we missed often
18:31 spoken about from RLUIPA is churches, land use, yeah,
18:35 which is a huge problem, which is a huge problem.
18:37 And I think it continues on a lower level.
18:39 There is lot of community objection
18:41 on many occasions to church coming
18:44 in buying land and building the church.
18:46 Well the community policy is always
18:48 is loss of tax revenue, yes,
18:51 and they see the people coming in.
18:54 If you look at anywhere where there is growth
18:57 just not too many places right now
19:00 in terms of the housing market,
19:01 but all of these communities they plan out,
19:04 you know, how many houses they are gonna built,
19:07 they don't allocate places to put churches,
19:09 yeah. It's atrocious really.
19:12 Anyhow we are not dwelling that.
19:14 I think an underlying social problem is that
19:16 more and more of those churches
19:18 and those that attend them represent an out
19:19 of the neighborhood phenomena not necessary
19:23 joining from the community,
19:25 but that's still a legal right to, you know,
19:28 to find some land and people drive
19:30 from 20, 30 mile all the way to...
19:31 You build a certain number houses you gonna
19:34 allocate so much land for gas station,
19:37 it should be absolutely, for grocery stores
19:38 and there is no palace to put a church, yeah,
19:41 doesn't make any sense.
19:42 People do come in this country
19:44 we still come together to worship.
19:47 So that's the Religious Land Use
19:48 and Institutionalized Persons Act is...
19:50 So this case saw some inverses taxes.
19:53 The issue was whether you can get money damages
19:57 if you prove a violation.
19:59 The prisoner and it's very difficult for prisoners
20:02 ever to win cases by the way.
20:04 But in this case the prisoner won claiming
20:07 that he was denied access
20:08 to Chapel and Religious Services
20:11 and I think also literature that he was denied.
20:15 To point this he won,
20:17 he was awarded damages and courts overturned it
20:21 and said no, under the statute
20:24 you are not entitled to collect damages.
20:27 Because the statute provided
20:30 'Appropriate Relief' is the term,
20:33 which in, you know, in Federal Statutes
20:38 that will always the most basic relief
20:41 if you sue what you get, your money if,
20:43 you know, what you've suffered you get money.
20:45 But the courts are saying, no sovereign immunity,
20:48 the States did not wave their immunity,
20:52 you can't sue them from money so...
20:55 In this case did they reverse those polices,
20:57 they gave to rise to the suit in the first place.
21:00 Is he receiving the religious materials and so...
21:03 I don't know but with the prisoners
21:05 they play so many games they will just move
21:07 them somewhere else and say the case is moved.
21:10 Look, if you can't sue for money either
21:13 in the land use context or the prisoner
21:15 context then the State has no incentive
21:18 at all to follow the law.
21:21 They just dig in their heels and,
21:23 you know, they don't care.
21:25 And this is where we are now.
21:26 This is exactly where we are...
21:28 So this is extremely grave for prisoners'
21:30 rights of religious freedom.
21:31 Earlier we were talking about the importance
21:33 of people joining the North American
21:35 Religious Liberty Association, NARLA,
21:38 and this is exactly the kind of issue
21:40 we need to introduce legislation
21:42 to clarify the statute, to provide money damages
21:47 and people who care about Religious Liberty
21:49 need to be part of an organization like NARLA,
21:52 so that when we introduce it or they can
21:56 right there letters, they can visit
21:58 their congressional offices and we can fix it.
22:00 It's easy to fix. It has to go through Congress.
22:03 Congress has to clarify money
22:06 damages for these violations. Yeah, I think you are right.
22:09 Legislative fixes the only way this will go...
22:11 Well you can't go, you can't appeal beyond the Supreme Court
22:14 But they're interpreting a statute.
22:16 They said the statute was not sufficiently
22:20 clear in providing money damages
22:22 we can go back and we do that often
22:25 if the Supreme Court gets reversed by Congress.
22:28 I think this is shown you are right.
22:29 There is appeal beyond the court,
22:30 but I think it's shown that this is not an aberration.
22:32 I mean this is the standard dynamic
22:36 and it's not about to be changed.
22:38 The on-going problem is pretty much now formalized,
22:42 but I felt for a long time that even though
22:46 we pay lip service to the rights of prisoners
22:50 in practice, behind bars,
22:52 it's the luck of the draw
22:53 what you get and I believe in times of stress.
22:55 Right now if you are someone accused
22:58 of terrorism what will happen,
23:00 if you're someone accused of a sex crime
23:03 we know what happens, the prisoners deal with you.
23:06 And sometimes you need protecting
23:09 from the other prisoners, not just from the State.
23:11 So that whole thing when you have people
23:14 on Conscience issues, we can say Religious Liberty
23:17 is whole array of Conscience issues.
23:19 When you know that if they're put behind bars
23:21 in this country the American legal system,
23:24 the constitution that we hold so,
23:26 we all hold so dear that pretty much evaporates.
23:30 I think that's the reason to do something about this.
23:32 Well they are somebasic things
23:35 that we are to provide for our prisoners.
23:37 Number one a physically safe environment.
23:41 They shouldn't be put in prison to be,
23:43 you know, beaten up, tortured, abused whatever.
23:46 It should be safe and they should
23:48 at least have the freedom to worship God.
23:50 We take away many of their rights
23:54 as we should, if they are in prison.
23:56 But the basic Liberty of Conscience
23:59 the idea that people are answerable to God
24:03 if anything we should be encouraging people
24:06 to develop the spiritual side of their lives
24:11 because that's how they can turnaround.
24:13 Eventually most of the folks we put away,
24:16 guess what they are coming back out
24:19 to be our neighbors.
24:20 And so, you know, what do we want.
24:22 We want them to go to the college of criminal
24:26 achievement and make the prisons, you know,
24:29 a school of criminal endeavor or do
24:32 we want them to actually turn their lives around.
24:34 Absolutely. I think there is another dynamic.
24:36 It's probably not legal discussion to put with this,
24:40 but just a present day reality.
24:42 We know that since 911,
24:44 Homeland Security and whole
24:47 society has looked more closely
24:49 what's happening at the prisoners.
24:50 And we see recruitment for radical
24:54 form in this case Islam, that's true, that's right.
24:57 And the prison system and society
24:59 is starting to look at answers
25:02 of that how we deal with it.
25:04 And I think the net effect is going
25:05 to be unless you are part of one of the major
25:09 religious affections in the United States today,
25:12 they're going to start restricting all religious
25:14 activity in a prison outside of that rationalizing
25:18 that this protects the safety and security
25:20 not only of the prison but of the country,
25:21 that's not gonna come to a good end.
25:23 You know, that's a very interesting
25:27 thought Lincoln and I hadn't,
25:28 I really hadn't given
25:30 consideration to that previously.
25:31 I have seen it developing
25:32 and I only see it becoming more so,
25:35 it's not diminishing.
25:36 Well, we know that outside of the prison
25:38 that the mosques are very concerned
25:41 about FBI infiltration and monitoring and restricting
25:45 the religious freedom because of the
25:47 suspicion of terrorist activity in the mosques
25:50 and, you know, as someone who values religious freedom
25:53 I have, you know, mixed feelings
25:56 so I certainly want the FBI to keep the same.
25:58 Well, it's true. Our sensibilities are blown
26:02 about by government statements
26:05 because we want to feel secure
26:06 and on one level we might believe on religious
26:10 and several freedoms but yet
26:12 then we see this picture of a threat the society
26:14 would easily manipulated, well we are, and in a prison
26:17 the vulnerability is even greater.
26:20 Well, look. If religious freedom means
26:23 anything for any Americans it has to also mean
26:26 something to the most vulnerable
26:28 and to the most despised the ones
26:30 we put away in prison.
26:32 This RLUIPA statute is critical,
26:34 and this issue just shows the importance of people
26:39 stepping up to the plate, being informed,
26:41 getting involved in the North American
26:43 Religious Liberty Association
26:45 and doing your part to protect religious freedom.
26:49 Jesus gave some very interesting responses
26:51 to the challenges thrown out at Him
26:54 by the skeptics in his day.
26:55 On one occasion they asked Him
26:58 about a great catastrophe
26:59 that had just taken place.
27:01 He said, in reply He said those people
27:04 that were killed when that terror fell on them.
27:07 He said do you suppose that they will
27:09 worse sinners than anyone else.
27:11 I tell you no. When we look at those
27:15 who are imprisoned in our country,
27:18 in our society we know that many of them
27:22 are what we would call criminals
27:23 for particular criminal acts.
27:26 But before God can we really say that they
27:29 are less morally deserving than any
27:32 of it or have fallen short.
27:34 And therefore it is in our compass
27:37 I think to defend their rights
27:40 and particularly to make sure that they have access
27:42 to religious services,
27:45 that they have access to Holy Books
27:47 and to religious instruction.
27:49 We can do no better work than to defend
27:53 this in any system of law,
27:55 but to defend those who are under
27:58 the compass of the law,
27:59 under the punishment of the law
28:01 and greatly in need of the help
28:05 that's spiritual advices can give.
28:07 For Liberty Insider this is Lincoln Steed.


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Revised 2014-12-17