Liberty Insider

Hosanna Tabor Supreme Court Ruling

Three Angels Broadcasting Network

Program transcript

Participants: Lincoln Steed (Host), Dwayne Leslie

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Program Code: LI000152


00:22 Welcome to the Liberty Insider.
00:25 This is the program bringing you discussion
00:27 and news and updates on religious liberty
00:30 developments around the world
00:32 and with some focus on the United States.
00:34 My name is, Lincoln Steed, Editor of Liberty Magazine.
00:37 And my guest on the program is, Dwayne Leslie.
00:40 Welcome Dwayne. Thank you, glad to be here.
00:42 You're the Legislative Liaison
00:44 for the Seventh-day Adventist Church,
00:45 just to put you in a context for our regular viewers.
00:49 I want to talk about a Supreme Court case that
00:52 as we record this hasn't quite been settled,
00:54 but it just recently went before the Supreme Court,
00:57 they've heard oral argument.
00:59 And now we're waiting to see, what happens.
01:01 But it's the Hosanna-Tabor case.
01:05 What is this concern?
01:06 Well, it's actually interesting case in it.
01:08 It's shaping up to be one of the most
01:10 important religious cases over the last 20 years.
01:14 In this case, it will really decide
01:16 to what extent a religious organization
01:20 can oversee its hiring decisions
01:25 of employees that are deemed to be ministers.
01:29 You know, why should a church,
01:32 in fact you can use the word,
01:33 but it all hinges on exemptions, doesn't it?
01:36 Why should a church have an exemption from the state?
01:40 Well, what happens is that,
01:41 you've two conflicting issues that are at play here.
01:45 You know, church is traditionally
01:46 as part of freedom of religion,
01:48 have the right to decide who can be a minister
01:51 under their particular organization.
01:54 But then, they're other rules in this country
01:56 that say that employees cannot be
01:59 discriminated against in the public specter.
02:03 And so in this case though,
02:05 there's been an exception that says,
02:07 churches have pretty much unfettered right
02:11 to decide who can and cannot be a minister
02:15 and can make decisions on hiring and firing
02:19 without any inference from the government.
02:21 So what led to this issue
02:24 being discussed by the, Supreme Court,
02:26 there's always a particular case? Sure,
02:27 So what are the particulars, what happened?
02:30 Well, in this specific case we had a school teacher,
02:34 Cheryl Perich, who was,
02:36 she was suffering from a disability
02:38 or that's what she claimed
02:40 and so that impacted her performance
02:43 and so she actually asked to take
02:44 some time off to focus on that.
02:47 The school subsequently replaced her
02:49 and when she felt she was ready to comeback,
02:52 she was not able to get her job back, and so--
02:56 Sorry to interrupt, but you know,
02:57 I read a bit about this recently
02:59 and it reminded me of something that I've noticed
03:01 and I've heard others comment on.
03:03 The, the--some of the particulars
03:05 of this sort of embarrassment,
03:09 you and I might not act that way in that situation,
03:11 but it raises a bigger question.
03:14 Like when I read what she did,
03:17 if I was the employer I'd be a bit bothered too,
03:19 because she got sick,
03:21 she took leave which they granted.
03:23 And then she told them
03:25 that she was coming after they've gotten
03:27 their replacement teacher.
03:28 She says, oh I'm coming back such a,
03:30 such a day and they didn't acknowledge it.
03:33 And she just turned up
03:35 and when she turned up there was a bad scene
03:37 and she says, well I'm ready here,
03:39 I can do what I-you know, no problem.
03:41 And they thought well, we've a replacement teacher,
03:44 this would be disrupted to sort of pull that person
03:47 at a moments notice when,
03:48 you know, they hadn't agreed with her
03:50 and then she got offended said,
03:52 well I'm gonna sue you, going to invoke,
03:57 you know, a government.
03:58 Right, it was a disability claim,
04:00 she said, I'm being discriminated against.
04:01 But, you know, looking at it
04:02 just from a human relation point of view,
04:04 I think there was a conflict precipitated that
04:08 that with other individuals and in better times,
04:10 it might not have gone that way.
04:12 But given that it developed,
04:14 there is a very real issue for churches
04:17 and for how the government relates to them.
04:21 And on one level I've even argued against it,
04:25 you know, not against this case,
04:26 but the early Adventist church to go back
04:30 to Adventist history had a fierce debate
04:32 as to whether the church should have tax exemptions.
04:37 You know, why we, why should the state grant
04:41 and why should the church expect
04:45 that it would get some special treatment on tax.
04:48 And, you know, because that was settled in the end
04:50 and I remember, reading that, Ellen White,
04:53 said to early Adventist church.
04:55 She says, you know, God still moves upon kings
04:58 and princess and authorities to grant favors.
05:01 So it's not immoral for favor to be granted,
05:04 but it is a favor, isn't it? Right.
05:06 And, you know, you can trace the history
05:08 of special dealings between church
05:10 and states through the years.
05:11 But where this seems to hit the fan to me,
05:13 is it's an old assumption, that is not bad,
05:18 but it's, you know, has historical antecedents.
05:20 And old assumption of that special treatment
05:22 is running hot up against new rights
05:26 and not just privileges,
05:29 protection for people of disabilities.
05:32 Of course sex, and race, and now sexual orientation,
05:39 these things have been protected in the workplace.
05:42 And will the church be required
05:44 to grant what seems reasonable to most people.
05:47 Well, and that's why this case is of such great importance,
05:51 because if there is not deemed
05:53 to be this ministerial exception,
05:56 then the church would be required.
05:57 It would then be a slippery slope in terms of
06:00 having the government make decisions to say,
06:03 well, you the church cannot govern yourselves
06:07 according to your religious beliefs.
06:09 Now, we're just placing an article on Liberty Magazine,
06:13 written by a lawyer who you and I both know
06:20 and he studied the case and read the,
06:22 well actually he went to hear some of the hearings,
06:25 the arguments before the Supreme Court.
06:29 And as I read over that it struck me
06:31 that the issue of how the Catholic Church
06:34 is related to certain things including the priestly scandal
06:42 with sort of front and center
06:43 and it's an interesting discussion,
06:44 because, isn't six of the nine justices
06:48 were themselves Roman Catholics.
06:50 And I've seen no evidence that
06:53 the comments were colored by that,
06:54 but that's tension that's interesting.
06:57 The whole world has been watching for some years now,
07:00 as this priestly scandal is blown outside.
07:03 Is it, is it even comprehensible
07:06 that there will be a status quo in this exemption
07:08 even as this scandal troubles
07:11 people within and without the church
07:12 Well, but I think the problem is that
07:15 where do you draw the line,
07:16 because what we don't want to do is have courts
07:19 making decisions based on applying religious principles.
07:24 And the court has been very hesitant to do that
07:26 and if you look at the transcript
07:28 from what some of the justices were saying,
07:30 they don't really want to do this.
07:32 But part of one of the determining task is,
07:35 what it constitutes a minister.
07:36 When if someone is a priest, a pastor, a rabbi,
07:39 they clearly fall in that category.
07:41 If they are janitor or sort of lower level employee,
07:46 they clearly are not.
07:47 But, you know, who is in that middle category
07:49 and how far down does the protection extend.
07:51 So do you see any evidence
07:52 they're going to narrow
07:54 the definition of one of minister?
07:56 I think, it's really up in the air.
07:58 I mean I think the questioning,
08:00 I mean the government took the EOC
08:02 sort of came forth position that,
08:04 it was not the easiest to defend in the oral argument.
08:07 But I think that at the end of the day,
08:10 I hope that they'll preserve the exception.
08:12 Yeah, now I need to make it clear too,
08:14 from the perspective, we're working for the church
08:19 and from the perspective of being a church insider
08:22 and knowing what we were doing
08:24 and what needs to be protected.
08:25 Of course, we want the Supreme Court
08:27 to uphold this exemption that really protects
08:31 the integrity of church operation.
08:33 Hiring and firing and how the ministers operate and so on.
08:36 And various church groups have submitted
08:38 front of the court briefs in support of this.
08:42 Whether that's in itself so sacred
08:46 that it can never be touched we will see.
08:51 Because there as I hinted that
08:52 more than hinted that as I brought up before,
08:55 there's no question that we've all been witnessed
08:59 to a betrayal of trust with some priests
09:03 in the Roman Catholic Church
09:05 and all of us wish for then to be some legal accountability
09:09 and we've been uncomfortable
09:11 to see not a church stance to be sure,
09:14 but some administrators within that church
09:17 who've actually sheltered
09:19 some of these perpetrators from legal accountability.
09:22 But those are, but I think that because,
09:24 that's a different case than in the Hassan-Tabor case.
09:28 I understand that it came up in the hearings.
09:31 They did, there was questioning about it,
09:33 but I think both sides rightly wanted to say,
09:36 this is an employment decision.
09:38 And so as in terms of criminal
09:42 or other legal liabilities separate
09:44 from deciding as a church, who can you hire,
09:46 who can you fire without oversight.
09:49 Because I think they purposely said,
09:52 this case is not to determine who the Catholic Church
09:55 can decide is an ordained priest or not.
09:58 Yes, true, they did discuss about ordination.
10:03 From when I first heard about this,
10:04 it sort of evoked historical analogs to me.
10:09 And I've always been taken by the story of,
10:12 Henry the II and Thomas Becket.
10:15 In fact, just a few days ago at home
10:17 we watched one of the old oldies with,
10:21 Richard Burton and Peter O'Toole,
10:27 acting out this story.
10:28 And it was a major event in English history,
10:32 where, Henry II, as descendent of William the conqueror,
10:37 hundred and some years removed from the conquest of England
10:41 and a Norman, and while we think of England,
10:46 as being the dying place,
10:47 the Normans really had ground down the Saxons,
10:50 it was not a nice occupation.
10:52 And here he had a friend, Thomas Becket,
10:56 who he trusted implicitly, Thomas Becket, was a Saxon.
11:00 He elevated him to be Chancellor of the Exchequer,
11:03 pretty much the top job working with the king.
11:06 He was in charge of the financial operations
11:09 of the government and the king got into
11:11 some trouble with the church.
11:15 The church said and I remember the exact issue,
11:19 the church said, that you,
11:22 the government courts are not empowered
11:25 to judge a priest who commits a civil crime.
11:29 We'll judge him ourselves.
11:31 And the king of course wanted to deal with it.
11:35 And he finally dreamed up the way to control the church.
11:38 He appointed his friend, Thomas Becket,
11:41 to be archbishop of Canterbury.
11:43 And even as I saw the movie the other day
11:46 and thought again on him, I don't know how he,
11:48 he pulled that off,
11:49 because on the face of it, it was just silly.
11:53 Thomas Becket, had taken ordnance
11:55 briefly early in his life
11:57 and on that technicality he had him ordained as a priest
12:00 and confirmed as archbishop of Canterbury the same day.
12:03 And the dynamic of the story
12:06 is that once installed as archbishop,
12:08 Thomas Becket, then defended his new loyalty
12:11 rather than his old loyalty and so was the classic
12:13 confrontation of the church and state.
12:16 And, Thomas Becket, was eventually murdered
12:19 by zealous knights who took the king in his word,
12:23 when he said, "Who'll rid me of this meddling priest?"
12:26 But I thought about this as I listened to it
12:28 and in some ways the reformation
12:29 in England was the end of that story.
12:31 Because the first act that Henry VIII did
12:34 was to take control of the church properties
12:37 and of church Canon Law,
12:38 he took it under the civil authority.
12:41 And it's interesting to see you to draw those two parallels.
12:44 Yes, it's not quite analogist, but there's some similarities.
12:48 We'll be back after the break to discuss further,
12:51 the Hassan-Tabor case, before the Supreme Court
12:53 and some ramification that there might be for us today.
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15:03 Welcome back to Liberty Insider
15:06 with guest, Dwayne Leslie.
15:08 Before the break with, Dwayne,
15:11 I was--we were talking about
15:12 a very important Supreme Court case
15:15 that as we're recording this is still being debated
15:18 or analyzed by the justices node the termination yet,
15:22 the Hosanna-Tabor case of ministerial exception.
15:28 Explain a little bit more on it.
15:30 We talked a lot about it, but I'm little afraid,
15:34 from what we both said
15:35 that we maybe sort of muddying the issue for our viewers.
15:38 What in its rural sense,
15:39 what are we talking about here?
15:41 Sure To be clear,
15:43 this case really governs how a church can decide
15:48 who to hire and who to fire
15:50 under what they consider to be a minister.
15:52 And so with this case is really looking at is
15:55 who falls into that minister,
15:56 because the plaintiff in case was a school teacher,
15:59 but also was deemed under the Lutheran faith
16:02 to be a commission to minister.
16:04 And she tried to claim that she was not--
16:06 But the Lutheran church gave reasonable reasons
16:10 at least under the old or the present scenario that yes,
16:15 she has some religious functions.
16:16 She takes devotions and so on,
16:18 so we expect her to fulfill religious duties.
16:23 Right, because even though her job is primarily
16:25 to be a teacher to the children,
16:27 she did lead them in the worship.
16:29 And so, and she did have other religious functions
16:32 and so the court spent some time trying to decide,
16:35 well, how do you determine that.
16:37 And famously, I think, Justice Roberts,
16:39 asked while the Pope has secular functions
16:44 and religious functions,
16:45 so would he be deemed a minister?
16:47 Yeah. With the twinkle in his eye.
16:51 So and again if this had been a pastor
16:56 that had done the same thing,
16:58 this case wouldn't be here.
16:59 But it's how far is the exemption
17:02 and should the exemption continue to exist?
17:07 Or how far does it apply,
17:08 does it apply to sort of midlevel employees,
17:12 who do some secular and some religious--
17:16 Now, let me throw a real wildcard at you since we,
17:19 I want to have an open discussion here.
17:23 I know on this program at least some years ago,
17:25 we've some discussion about some church schools
17:29 or church colleges anxious to get government money.
17:34 And they, to get the money
17:37 they needed to prove that they were not very religious.
17:41 So they based an argument,
17:43 that yes they were run by a church,
17:45 but they were pervasively sectarian one.
17:49 Oh, not. No, I'm not getting the right word.
17:51 Secular, secular, pervasively secular.
17:55 Well, that's not so at least
17:58 by the Seventh-day Adventist institutions
18:00 and I think most other church
18:01 run higher institutions of higher learning,
18:06 the whole point the church
18:07 gets into it is to encourage faith
18:09 and to steer people toward a religious viewpoint.
18:13 They're not neutral, they're not empty
18:15 of religious sentiment.
18:17 But to get the money,
18:18 some schools have been advancing
18:20 an argument that seems to me,
18:22 works a little against this ministerial exemption
18:27 for people that are working for the church,
18:30 that are advancing its beliefs,
18:32 but yet not formally ministers.
18:35 Right, then I, but I think again the point comes back
18:39 to is that when people have religious functions,
18:41 what we don't want to do is have the court system
18:44 determining the validity of faiths
18:49 particular religious practices, absolutely, not no.
18:52 And I under achieve but I don't think
18:54 that's gonna happen out of this case directly.
18:56 But I just have a fear that they may narrow
19:00 the determination of who is a minister.
19:06 Right and but again I don't-- but for most churches
19:10 there's a pretty clear distinction often times
19:12 between who's a minister and who's not.
19:14 Yeah. Well, and it also intersects with the debate
19:17 that is not confine to any one church.
19:19 you know, ordination of women and--
19:21 Right, so, which we wont' even go there.
19:24 No, but again in the oral argument,
19:27 they took great pains to sort of distance
19:30 and show that this case was not about ordination of women.
19:35 Well, the mystery to me on this
19:36 and its hard to do double guess the Supreme Court
19:40 and as a lawyer I know that
19:41 people have not a good track record
19:43 on trying to double guess them,
19:44 but just think of the dynamic.
19:46 There are many issues that bubble up
19:49 through the legal system that could be taken
19:53 by the High Court, but they don't take everything.
19:56 They take things, it seems to me
19:58 from what I know less for the case at hand than
20:02 what it might represent larger issues,
20:04 so they're choosing.
20:06 So they must have a reason for this,
20:08 so what would their reason be for taking this.
20:12 The exemption has not really been seriously threatened,
20:14 so are they taking it to protect the exemption,
20:19 doesn't seem so to me.
20:21 yeah, it will be interesting to see how this comes out.
20:24 So what's in their mind? Yes.
20:26 And I think, again looking at the oral argument,
20:29 it's, there was some, there is a high degree
20:32 of skepticism in the argument that was put forth
20:34 by both the plaintiff and the government.
20:37 Because they really sort of had to control it themselves
20:39 to figure out argument that didn't run a foul
20:43 of traditional free expression of religion,
20:46 but still wanted to give the opportunity
20:49 to bring claims for employment discrimination.
20:52 By the way in this job, I've had to be careful.
20:58 I had to carefully study how lawyers present
21:00 the law or the constitution.
21:03 And I've read the transcripts
21:05 and heard some of the presentations
21:07 before the Supreme Court
21:08 and it has amazed me like you say some of the lawyers,
21:11 more brilliant individuals that I can ever hope to be,
21:15 certainly more knowledgeable in the law
21:17 that I could ever dreamed to be.
21:18 But still just on the faces of it,
21:20 here are some of the arguments,
21:21 they're fantastical, right, convoluted reasoning.
21:24 And the justices are very good at,
21:26 particularly what interest me as a lawyer
21:29 is the hypotheticals that they give
21:31 and again asking about the Pope
21:33 and how the-would the Pope be considered a minister.
21:35 That's a good way to highlight
21:37 some of the flaws in argument.
21:39 Well, this is, it's out of context a bit,
21:42 but it's a good time for me to bring it up,
21:44 because this is pertinent to our discussion generally.
21:47 I listen to one fairly recent Supreme Court case
21:53 with oral argument and I could not believe it.
21:56 When I heard the Justice's bounce among themselves
21:59 for maybe ten minutes about how appropriate
22:03 it was for the government to build
22:05 a religious structure for a certain religion.
22:08 And they got to joking about it.
22:10 It was so lighthearted
22:11 that it was actually a little ominous to me.
22:13 But they came to the joint decision that as along,
22:17 if the government built,
22:19 I forget which church they settled on,
22:21 but they named cathedral or something,
22:23 if they build one cathedral,
22:25 as long as they then build them
22:26 for anybody that wanted it, things were hunky-dory.
22:31 I know, you are as perplexed as I am,
22:32 because on the face of it
22:33 that was against the establishment code absolutely.
22:36 But they seem to, I can't say that all,
22:40 none of them went with it, but there was no counter voice
22:43 and it bounced around at least
22:44 four or five of them loved the idea.
22:47 So they thought as long as they're even handed about that
22:49 the government could build churches.
22:52 And so I wonder really what thinking is developing
22:56 in our highest judiciary like that.
22:59 Well, there's a whole body of law,
23:00 maybe that's another show
23:01 with you know religious land use.
23:04 But now that's why I think there is a so much attention
23:07 being paid to this case,
23:08 because there is a high degree of scrutiny,
23:11 judging from the questions,
23:12 it's really hard to say and so would it be curious.
23:14 Well, we-we've now placed two articles
23:17 in Liberty Magazine on this topic
23:18 and I expect the third when the case comes down,
23:20 because I agree with you.
23:22 I think this is in my judgment
23:25 just as an observer in the last 13 years,
23:27 it's the most important Supreme Court case
23:29 relating to religion that I've seen.
23:32 It may turn out to be a non event
23:34 if they judge it in a moral way.
23:36 they could judge it very narrowly.
23:38 But there is a lot of stake here, right.
23:41 I mean there has been some other important,
23:42 ones like the challenge brought by an antireligious group,
23:46 the Freedom From Religion Foundation,
23:47 against the government's faith based initiative.
23:50 I thought that was a huge case,
23:52 but it ended up as nothing, because the Supreme Court,
23:54 as they've so often done likely said,
23:56 well, they have no standing.
23:59 This was a group speaking on behalf of people,
24:01 but they needed the case of somebody
24:03 who would have really been impacted by this.
24:06 And as a net result I think they took off.
24:09 I hope it's not true, but my reading of that case
24:11 was that in essence citizens can't easily challenge
24:16 any action of the state crossing the line
24:20 of separation of church and state.
24:22 You just, it's not your business anymore.
24:25 Because it, because from standing.
24:27 Yes, I think they took it off the table.
24:30 Well, I'll go back to what narrowly they said,
24:34 because this came out of the, White House,
24:37 because it was done on the government
24:38 appropriation not by statute.
24:41 And you're just the citizen who and not,
24:44 you can't prove that you were impacted by,
24:46 you know, you can't say anything.
24:49 It was a very odd sort of a logic,
24:51 but they clearly as you know dismissed it
24:53 because of lack of standing and no one much worried,
24:57 because there is not great sympathy
25:00 to a group that are opposed to all religion.
25:03 Right, The Freedom From Religion Foundation
25:05 and I think even lot of secular
25:07 so a little squeamish about a group that just wants
25:09 to drive religion out of every nook and cranny in society.
25:13 Right and could said there's not necessarily
25:14 lot of support for that, no.
25:17 Even among people who want
25:18 separation of church and state
25:19 but they don't want freedom from all religion.
25:22 Yeah, so we're getting down to the final minutes.
25:28 I'd certainly we can encourage our viewers
25:30 to pay attention to this that there are issues
25:33 that bubble up from time to time
25:35 that have great ramifications.
25:37 They should be studying the news to see where this goes.
25:39 They should recognize that a church has a legitimate right
25:43 to protect the integrity of its ministerial force
25:46 as well as those that work for it really in any environment
25:49 you don't really want the janitor
25:54 at the church school to be,
25:56 you know, a Satanist for example.
25:59 Thankfully, lot of them but--
26:00 So the church has legitimate things were it might be,
26:05 on other roles outside in the secular environment
26:08 might be acting somewhat prejudicially but its,
26:10 it want the integrity of mission
26:13 to be worked out through its workforce.
26:15 Right and I think that
26:17 and again like we mentioned early on.
26:19 There is a certain tension that comes
26:21 in these kinds of cases because on the one hand
26:25 again you have the religious application issue.
26:29 But then, you, the government say we don't want
26:32 to allow discrimination in hiring decisions.
26:35 But ultimately if you've to air on that side,
26:38 I think you really have to air on that side
26:39 of protecting religion and religious institutions
26:43 that have a right to hire and fire people in accordance
26:47 with there own religious principles
26:48 and that's what important.
26:51 It's amazing to study throughout history
26:54 and see how often the debates between church
26:57 and state where over
26:59 who had the purgative to administer laws?
27:03 Liberty Magazine and this program argues
27:05 for the separation of church of state.
27:07 But that separation was not easily gained.
27:10 It once was that the church told the state,
27:13 had to administer even civil laws.
27:16 Then once was in England particularly a time
27:19 when the civil powers tried to say to the church powers
27:23 that you must answer for civil errors.
27:28 Henry II, tried that with Thomas Becket
27:31 and the result was a matter to the cause
27:33 and the man sainted by the Catholic Church
27:36 and it remained until the Protestant Reformation
27:39 and the Henry VIII, for fully control
27:42 of religious entities by the state.
27:44 In a small way the Hosanna-Tabor case presently
27:47 before the Supreme Court is re-fighting that issue.
27:51 Is there an exemption for the church,
27:56 an exemption for spiritual matters certainly,
27:58 but is there an exemption from civil responsibility.
28:01 Time will tell and the Supreme Court will say.
28:05 For Liberty Insider this is Lincoln Steed.


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Revised 2014-12-17