Participants: Lincoln Steed (Host), Bruce N. Cameron
Series Code: LI
Program Code: LI000169A
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00:22 Welcome to the Liberty Insider.
00:24 This is the program that brings you up-to-date news, 00:26 views, discussion on Religious Liberty developments 00:30 in United States and indeed around the world. 00:33 My name is Lincoln Steed, editor of Liberty Magazine. 00:36 And my guest on the program 00:38 is Professor Bruce Cameron and you're the Reed Larson 00:42 Professor at Regent University. 00:44 It's good to be here. And a few other things as well. 00:46 A few other things as well. 00:47 Very successful litigator, I know. 00:50 Well, I'm on staff with the National Right 00:52 to Work Legal Defense Foundation, 00:53 which is wonderful organization. 00:55 It allows me to litigate Religious Liberty 00:57 in first amount of cases. 00:59 And since you know lot about litigation, 01:02 let's discuss a very significant court case. 01:06 The Supreme Court, only a few days ago now as we film this, 01:10 finally brought down the decision on the case 01:13 called Hosanna-Tabor, what's the second the? 01:17 Evangelical Lutheran. 01:18 Yeah, Evangelical Lutheran right, that's the-- 01:23 I know they had their oral argument, 01:24 I think it was in December wasn't it? 01:27 But they brought the case came down early in 2012 01:32 and so far we had two articles in Liberty Magazine 01:35 on it because I believe this was seriously important case. 01:38 We were planning another follow up case, 01:40 but it turned out very, very well. 01:42 It's a wonderful decision. 01:45 If you look at what the US Supreme Court 01:47 has done with Religious Liberty for last 20 years, 01:50 it's actually quite discouraging. 01:51 They've had a number of decisions, 01:54 which I consider to be hostile 01:56 to the employees of faith 01:58 or at best neutral to slightly a hostile. 02:03 Hosanna-Tabor is a glorious decision. 02:07 A decision which will clearly protect ministries 02:11 in running their business. 02:14 I consider this to be an area 02:16 of real concern for the future. 02:21 The homosexual rights movement is a freight train. 02:25 It's being used to restrict religious rights is that-- 02:28 That's right. It's aimed 02:31 straight at religious institutions. 02:33 And this is huge clash because there are many religions 02:37 we believe in discriminating 02:38 on the basis of sexual orientation, 02:43 morality within the definition of the Bible 02:47 and of course the homosexual movement 02:49 is looking to have sexual orientation protected. 02:54 This is if it were gender discrimination or race-- 02:57 I think this is is syllogistic style of reasoning or so. 03:00 Well, the Bible-- 03:03 I wouldn't directly equate gay rights 03:05 with....with the civil rights 03:09 or the black community or the minority. 03:13 Well the problem is that the target is a church. 03:16 At least that's the end destination 03:18 because it's the church in society, which is the one 03:22 that standing up saying, "wait a minute. 03:24 This is inconsistent with our understanding of God's 03:27 will for the person, for the family, for society." 03:31 And so it's a real problem and of course our churches 03:35 has litigated in the past the issue of, does the church 03:40 have the right to choose their clerks? 03:43 Do they have the right to chose who would propagate 03:46 the message to the church, teach 03:48 the message of the church and so Hosanna-Tabor 03:52 is a glorious decision because it comes down and says, 03:55 'unequivocally the church is free 03:59 from all government restraint to deal 04:01 with antidiscrimination laws when it comes to selecting 04:05 who will teach its message, 04:07 who will lead its congregation? 04:09 Yes, this will protect any church, 04:12 but the Adventist church in particular side 04:14 since that's our immediate concern. 04:16 If a pastor identifies himself 04:21 espousing the whole gay gender 04:24 and acting, you know, why this, you know, 04:28 advancing that lifestyle. 04:29 You would expect the church to say, 04:31 well you no longer representing us. 04:33 If Hosanna-Tabor had gone the wrong way 04:35 then the church could be forced to keep him right? 04:38 Well, that's right. Now the interesting thing 04:40 is that everyone of the United States 04:44 courts of appeals, that's the court of right 04:45 below the supreme court had all recognized 04:49 the ministerial exception if the issue is raised. 04:53 But they had recognized it in different ways. 04:57 For example, the ninth circuit 04:59 had very narrowly looked at the ministerial exception, 05:04 exemption when there was a compelling fact situation, 05:09 you know, they thought this is really unfair 05:12 then they would trade on the churches right to, 05:16 to choose, it's-- 05:17 And that's I thought was coming down with the part. 05:20 I thought that, I never thought the Supreme Court 05:22 will do away with the ministerial exemption. 05:24 But I thought they would make it far more narrow 05:27 only for actual ministers of religion 05:31 and only for things related to the practice of religion 05:35 and fulfilling the duty not for employment criteria 05:39 like the discrimination on handicap 05:42 or race or sexual orientation. 05:44 So this is very good. 05:46 I mean it may allow church 05:49 to act in unfortunate ways as far 05:53 as the employee, but absolutely protects 05:55 the integrity of the message 05:58 of projection of a church, doesn't it? 06:00 Well, if the church acts inappropriately 06:03 with regard to its employees God 06:06 will be the judge, and not the E.E.O.C. 06:08 Well yes. That's the good news. 06:10 Not the judge. And he will not bless 06:12 and he might even curse. 06:14 Well, that's exactly what. 06:15 You know, this decision is of great importance 06:18 to the Seventh-day Adventist church as well, 06:20 because we've this huge religious mission 06:24 in the educational field. 06:26 I mean we have the largest protestant religious system 06:30 in the United States and in the world as I understand it. 06:33 And so, Hosanna-Tabor was really dealing 06:36 with a teacher as opposed to a pastor 06:40 or priest to withstand up. 06:41 But she was being accounted for purposes of the exemption. 06:46 She was being counted as a ministerial projection 06:49 of the Lutheran church. 06:50 Right, The Lutheran church had said, 06:53 you're a called commission minister 06:59 and so they'd given her that title. 07:01 But I think this thing is very clear 07:03 that you can't be-- if your church, 07:07 you can be able to determine whether or not 07:10 you'll have the person that you want teach your message, 07:14 whether or not you call them a pastor 07:16 or say you're minister. 07:18 The thing is very clear. 07:20 If you're propagating the message to the church 07:22 then you're a minister for purposes 07:26 of the ministerial exception. 07:27 Yeah. As a little aside, this might have some bearing 07:32 on church organization for ministry. 07:37 It might effect-- 07:39 Well, a church perceives its own ministers. 07:41 Well, it's possible that church 07:44 may try to change labels to try to pull its employees 07:48 within the ministerial exception. 07:50 But I think a fair reading of this opinion says, 07:54 let's precisely what church 07:55 does not need to do and there are some concurring opinions, 07:59 which say explicitly. 08:00 There are churches who don't have ministers. 08:03 There everybody is entitled to select 08:05 who it is that will propagate and their message. 08:10 Now I was thinking Lincoln, 08:11 may be we're a little bit ahead of the audience. 08:14 May be they don't quite understand 08:15 what we're talking about. I know, thank you. 08:18 This is my role usually to put it in context. 08:21 And early on I know I was-- of course regular viewers 08:24 of this program have heard us talk about this before, 08:27 not you and me, but this program. 08:29 But yes, what was Hosanna-Tabor 08:31 in its basic outline. 08:33 Yeah, let's see the story background to this. 08:36 There are federal statutes to protect employees 08:39 in the private sector against discrimination 08:42 on the basis of race, religion, gender, 08:45 national origin that kind of-- 08:48 This primarily at Title VII of the Civil Rights. 08:51 It is Title VII of the Civil Rights Act in 1964, 08:54 that's, that's correct. 08:55 Plus there are federal statutes to protect 08:59 you against disability discrimination, 09:01 require accommodation in that area. 09:04 And so these cover all private sector employees, 09:07 virtually all of them. 09:09 So the question is, our churches covered by these, 09:13 and in the Hosanna-Tabor case a lady 09:17 who was a teacher came down with this-- 09:21 Cheryl Perich, I think wasn't it? Yes. 09:23 Came down with this sleep disorder 09:25 that was preventing her from doing her job. 09:28 And so the church school replaced her temporarily 09:32 and then she got back saying, "I'm okay, I'm fine, 09:36 there is a note from my doctor take me back." 09:38 And they said we've already hired someone else here. 09:43 And so she said, "well, you know, 09:45 I think I'm going to sue you." 09:47 She retained a lawyer. 09:49 She was acting in a way that was suggested the lawyer 09:52 was telling her what to do even though the church school 09:56 told her that she shouldn't show up 09:58 because they had someone else doing the job. 10:00 She showed up, demanded that they sign 10:03 that she was there, and these kinds of things 10:05 that make you think you're being set up for a lawsuit. 10:09 So the Lutheran church is just like 10:10 the Seventh-day Adventist church has a doctrine, 10:12 which says that church employs church memebers 10:15 shouldn't sue the church. 10:17 This is inconsistent with the gospel 10:19 that you bring your church before civil authorities. 10:23 Paul had said you shouldn't bring 10:24 a fellow believer to this court. 10:27 Precisely. So when, in fact, 10:30 when they wee threatened 10:32 she said that I'm thinking about suing you 10:37 and they said you're fired. 10:39 So she filed a charge with the equal 10:41 employment opportunity commission 10:43 under these statutes we've been talking about and said, 10:46 you retaliated against me because I was claiming 10:51 my rights under the discrimination laws. 10:53 So the question was can a church discriminate 10:58 against someone retaliate against someone 11:00 who has a disability claim? 11:04 And that was the legal issue before the court. 11:07 Or do churches get a pass on these kinds of cases? 11:11 And in the past, to been understood, 11:13 they did. Is that right? 11:15 Well, the U.S. Supreme Court 11:17 had not passed on this issue before. 11:18 They've not adjudicated this. 11:20 The lower courts had decided this, 11:22 but the lower courts have said it 11:24 with some inconsistency with each other. 11:27 No, what I mean is 11:28 the ministerial exception understanding. 11:31 I mean that's always been to give the church 11:33 in exception from-- Yes. 11:35 From other requirements. 11:36 Yes, and why is that. It's because- 11:39 It is a deferral to the religious nature of the church 11:41 and to keep separation of church in state. 11:42 Exactly, that the lower courts 11:45 have said this is an establishment problem. 11:48 The government is not entailed to dictate to the church 11:51 who should be its religious leader, 11:55 who should share its message and so that's the question. 11:58 Now the problem in this case 11:59 was that they had called teachers, 12:02 the ministerial teachers, and they had lay teachers. 12:05 And the lay teachers did the same work 12:08 as the call teachers and of course this teacher 12:10 was not teaching religion all the time, 12:13 which is the-- actually a limited part of her day 12:15 was devoted to spreading the Lutheran doctrine. 12:19 But in the end, it doesn't 12:20 devote then on to what percentage-- 12:22 Precisely. They're telling that role 12:23 on behalf of the church that's enough. 12:25 See, that's one of the blessings of this case. 12:27 This case is we're not gonna use to stop watch. 12:30 We're not gonna decide what percentage 12:31 of your time you'll spent, you spent in you job promoting 12:36 the churches religious views. 12:39 You're entitled church to decide who does that. 12:43 This is a very good case, I think you questioned 12:46 the long term track record of the Supreme Court 12:50 but I think on this occasion you've done it, done it well. 12:53 We'll be back after the break 12:54 to further discuss church state issues in United States 12:57 and the Supreme Court perhaps. |
Revised 2014-12-17