Welcome to the Liberty Insider.
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This is the program that
brings you up-to-date news,
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views, discussion on
Religious Liberty developments
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in United States and
indeed around the world.
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My name is Lincoln Steed,
editor of Liberty Magazine.
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And my guest on the program
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is Professor Bruce Cameron
and you're the Reed Larson
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Professor at Regent University.
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It's good to be here. And
a few other things as well.
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A few other things as well.
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Very successful
litigator, I know.
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Well, I'm on staff
with the National Right
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to Work Legal
Defense Foundation,
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which is wonderful organization.
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It allows me to
litigate Religious Liberty
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in first amount of cases.
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And since you know
lot about litigation,
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let's discuss a very
significant court case.
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The Supreme Court, only a few
days ago now as we film this,
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finally brought down
the decision on the case
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called Hosanna-Tabor,
what's the second the?
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Evangelical Lutheran.
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Yeah, Evangelical
Lutheran right, that's the--
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I know they had
their oral argument,
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I think it was in
December wasn't it?
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But they brought the
case came down early in 2012
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and so far we had two
articles in Liberty Magazine
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on it because I believe this
was seriously important case.
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We were planning
another follow up case,
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but it turned
out very, very well.
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It's a wonderful decision.
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If you look at what
the US Supreme Court
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has done with Religious
Liberty for last 20 years,
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it's actually
quite discouraging.
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They've had a
number of decisions,
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which I consider to be hostile
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to the employees of faith
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or at best neutral
to slightly a hostile.
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Hosanna-Tabor is
a glorious decision.
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A decision which will
clearly protect ministries
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in running their business.
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I consider this to be an area
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of real concern for the future.
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The homosexual rights
movement is a freight train.
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It's being used to restrict
religious rights is that--
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That's right. It's aimed
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straight at
religious institutions.
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And this is huge clash
because there are many religions
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we believe in discriminating
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on the basis of
sexual orientation,
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morality within the
definition of the Bible
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and of course the
homosexual movement
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is looking to have
sexual orientation protected.
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This is if it were
gender discrimination or race--
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I think this is is syllogistic
style of reasoning or so.
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Well, the Bible--
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I wouldn't
directly equate gay rights
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with....with the civil rights
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or the black
community or the minority.
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Well the problem is
that the target is a church.
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At least that's
the end destination
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because it's the church
in society, which is the one
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that standing up
saying, "wait a minute.
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This is inconsistent with
our understanding of God's
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will for the person, for
the family, for society."
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And so it's a real problem
and of course our churches
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has litigated in the past
the issue of, does the church
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have the right to
choose their clerks?
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Do they have the right
to chose who would propagate
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the message to the church, teach
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the message of the
church and so Hosanna-Tabor
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is a glorious decision
because it comes down and says,
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'unequivocally
the church is free
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from all
government restraint to deal
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with antidiscrimination
laws when it comes to selecting
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who will teach its message,
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who will lead its congregation?
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Yes, this will
protect any church,
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but the Adventist
church in particular side
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since that's our
immediate concern.
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If a pastor identifies himself
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espousing the whole gay gender
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and acting, you
know, why this, you know,
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advancing that lifestyle.
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You would expect
the church to say,
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well you no
longer representing us.
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If Hosanna-Tabor
had gone the wrong way
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then the church could be
forced to keep him right?
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Well, that's right.
Now the interesting thing
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is that everyone
of the United States
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courts of appeals,
that's the court of right
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below the supreme
court had all recognized
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the ministerial exception
if the issue is raised.
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But they had
recognized it in different ways.
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For example, the ninth circuit
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had very narrowly looked
at the ministerial exception,
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exemption when there was
a compelling fact situation,
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you know, they
thought this is really unfair
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then they would trade
on the churches right to,
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to choose, it's--
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And that's I thought was
coming down with the part.
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I thought that, I never
thought the Supreme Court
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will do away with the
ministerial exemption.
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But I thought they
would make it far more narrow
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only for actual
ministers of religion
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and only for things related
to the practice of religion
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and fulfilling the duty
not for employment criteria
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like the
discrimination on handicap
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or race or sexual orientation.
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So this is very good.
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I mean it may allow church
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to act in
unfortunate ways as far
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as the employee,
but absolutely protects
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the integrity of the message
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of projection of a
church, doesn't it?
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Well, if the church
acts inappropriately
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with regard to its employees God
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will be the judge,
and not the E.E.O.C.
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Well yes. That's the good news.
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Not the judge.
And he will not bless
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and he might even curse.
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Well, that's exactly what.
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You know, this
decision is of great importance
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to the Seventh-day
Adventist church as well,
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because we've this
huge religious mission
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in the educational field.
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I mean we have the largest
protestant religious system
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in the United States and in
the world as I understand it.
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And so,
Hosanna-Tabor was really dealing
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with a teacher as
opposed to a pastor
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or priest to withstand up.
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But she was being accounted
for purposes of the exemption.
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She was being counted
as a ministerial projection
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of the Lutheran church.
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Right, The
Lutheran church had said,
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you're a called
commission minister
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and so they'd
given her that title.
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But I think this
thing is very clear
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that you can't
be-- if your church,
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you can be able to
determine whether or not
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you'll have the person that
you want teach your message,
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whether or not
you call them a pastor
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or say you're minister.
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The thing is very clear.
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If you're propagating
the message to the church
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then you're a
minister for purposes
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of the ministerial exception.
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Yeah. As a little aside,
this might have some bearing
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on church
organization for ministry.
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It might effect--
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Well, a church
perceives its own ministers.
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Well, it's possible that church
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may try to change labels
to try to pull its employees
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within the
ministerial exception.
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But I think a fair
reading of this opinion says,
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let's precisely what church
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does not need to do and there
are some concurring opinions,
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which say explicitly.
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There are churches
who don't have ministers.
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There everybody
is entitled to select
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who it is that will
propagate and their message.
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Now I was thinking Lincoln,
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may be we're a little
bit ahead of the audience.
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May be they
don't quite understand
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what we're talking
about. I know, thank you.
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This is my role
usually to put it in context.
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And early on I know I
was-- of course regular viewers
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of this program have
heard us talk about this before,
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not you and me,
but this program.
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But yes, what was Hosanna-Tabor
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in its basic outline.
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Yeah, let's see the
story background to this.
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There are federal
statutes to protect employees
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in the private sector
against discrimination
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on the basis of
race, religion, gender,
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national origin that kind of--
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This primarily at Title
VII of the Civil Rights.
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It is Title VII of the
Civil Rights Act in 1964,
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that's, that's correct.
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Plus there are
federal statutes to protect
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you against
disability discrimination,
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require
accommodation in that area.
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And so these cover all
private sector employees,
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virtually all of them.
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So the question is, our
churches covered by these,
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and in the
Hosanna-Tabor case a lady
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who was a teacher
came down with this--
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Cheryl Perich, I
think wasn't it? Yes.
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Came down with
this sleep disorder
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that was preventing
her from doing her job.
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And so the church
school replaced her temporarily
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and then she got back
saying, "I'm okay, I'm fine,
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there is a note from
my doctor take me back."
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And they said we've
already hired someone else here.
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And so she
said, "well, you know,
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I think I'm going to sue you."
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She retained a lawyer.
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She was acting in a way
that was suggested the lawyer
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was telling her what to do
even though the church school
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told her that
she shouldn't show up
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because they had
someone else doing the job.
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She showed up,
demanded that they sign
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that she was there,
and these kinds of things
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that make you think you're
being set up for a lawsuit.
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So the Lutheran
church is just like
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the Seventh-day
Adventist church has a doctrine,
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which says that church
employs church memebers
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shouldn't sue the church.
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This is
inconsistent with the gospel
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that you bring your
church before civil authorities.
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Paul had said
you shouldn't bring
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a fellow believer to this court.
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Precisely. So when, in fact,
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when they wee threatened
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she said that I'm
thinking about suing you
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and they said you're fired.
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So she filed a
charge with the equal
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employment
opportunity commission
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under these statutes we've
been talking about and said,
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you retaliated against
me because I was claiming
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my rights under the
discrimination laws.
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So the question was
can a church discriminate
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against someone
retaliate against someone
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who has a disability claim?
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And that was the legal
issue before the court.
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Or do churches get a
pass on these kinds of cases?
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And in the past,
to been understood,
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they did. Is that right?
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Well, the U.S. Supreme Court
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had not passed on
this issue before.
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They've not adjudicated this.
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The lower courts
had decided this,
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but the lower
courts have said it
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with some
inconsistency with each other.
00:11:24.42\00:11:27.03
No, what I mean is
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the ministerial
exception understanding.
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I mean that's always
been to give the church
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in exception from-- Yes.
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From other requirements.
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Yes, and why is
that. It's because-
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It is a deferral to the
religious nature of the church
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and to keep
separation of church in state.
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Exactly, that the lower courts
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have said this is an
establishment problem.
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The government is not entailed
to dictate to the church
00:11:48.64\00:11:51.96
who should be
its religious leader,
00:11:51.97\00:11:54.97
who should share its message
and so that's the question.
00:11:54.98\00:11:58.04
Now the problem in this case
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was that they
had called teachers,
00:11:59.54\00:12:02.23
the ministerial teachers,
and they had lay teachers.
00:12:02.24\00:12:05.84
And the lay
teachers did the same work
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as the call teachers
and of course this teacher
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was not teaching
religion all the time,
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which is the-- actually
a limited part of her day
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was devoted to
spreading the Lutheran doctrine.
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But in the end, it doesn't
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devote then on
to what percentage--
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Precisely.
They're telling that role
00:12:22.30\00:12:23.33
on behalf of the
church that's enough.
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See, that's one of the
blessings of this case.
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This case is we're not
gonna use to stop watch.
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We're not gonna
decide what percentage
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of your time you'll spent,
you spent in you job promoting
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the churches religious views.
00:12:36.10\00:12:39.06
You're entitled church
to decide who does that.
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This is a very good
case, I think you questioned
00:12:43.28\00:12:46.93
the long term track
record of the Supreme Court
00:12:46.94\00:12:50.34
but I think on this occasion
you've done it, done it well.
00:12:50.35\00:12:52.97
We'll be back after the break
00:12:52.98\00:12:54.29
to further discuss church
state issues in United States
00:12:54.30\00:12:57.36
and the Supreme Court perhaps.
00:12:57.37\00:12:58.96