The Slippery Slope to Sharia Law

No, this is not going to be another one of those Islamaphobic rants about how Sharia law is coming to a theater near you any day now. On the contrary, this will be a Judeo-christian-phobic rant about double standards and where the real threat of religious domination comes from.

Recently, the Supreme Court announced in a unanimous decision in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC that a religious institution could discriminate in its hiring practices without repercussions. This supposedly falls under freedom of religion. The case involves a woman who took a medical leave from a Lutheran school due to a diagnosis of narcolepsy. Upon returning from leave she was told her job had been taken and there was no further work for her. When she threatened to sue, she was fired. The Equal Employment Opportunity Commission (EEOC) took on her case as a violation of ADA (Americans with Disabilities Act) protections.

I have no problem with the case being adjudicated solely on the basis of the legitimacy of the ADA claim. What I find disturbing is that the religious affiliation of the school had any impact whatsoever on the case. According to an article in the Washington Post:

Richard W. Garnett, director of Notre Dame Law School’s Program in Church, State, and Society, said the ruling is the court’s most important decision on religious freedom in decades.

“The government doesn’t get to second-guess religious communities’ decisions about who should be their teachers, leaders and ministers,” he said.

via Supreme Court: Discrimination laws do not protect certain religious group workers – The Washington Post.

So religion gets to operate outside the law? Is that what we are supposed to believe? It worked so well in the Catholic church where their brand of internal justice ruined the lives of countless children molested by “teachers, leaders and ministers” who happened to be  pedophiles.

When exactly do we apply this hands-off standard for religion? Why is polygamy not a protected practice within the Mormon church? Why did they have to renounce the practice to maintain their tax exempt status? Perhaps the Roberts Court would like to re-adjudicate that decision? Based on Hosanna-Tabor, if I were a Mormon minister I would most certainly float a test case reestablishing polygamy as legitimate within the church. The Court has established that our government has no right to extend its legal standards to religious institutions, at least so long as they are Christian.

So, the next time you hear some paranoid rant about how we need to protect America from Sharia law, just think about Hosanna-Tabor. We are already on the slippery slope to religious practice trumping American law.

Respectfully,
Rutherford

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104 thoughts on “The Slippery Slope to Sharia Law

  1. Rutherford I wish to make a brief return from exile to say you should read the SCOTUS paper on this.

    http://www.supremecourt.gov/opinions/11pdf/10-553.pdf

    I think it is very telling that his was an unanimous decision and that Kagan has again shown herself not to be the nightmare many (myself included) thought she’d be.
    Key elements to this story are that the teacher wasn’t just a teacher or employee and that she did indeed violate church rules regarding dispute resolution.

    This case is not the Christian boogeyman you want it to be nor a slight of other faiths. In fact the justices went to lengths to talk about all faiths and offer potential food for thought for lower courts who jump the gun in other cases.
    Enjoy the read.

  2. The answer to your outrage is in the case itself, as the question implicated is the “ministerial exception”.

    The salient point that you have neglected to mention is the fact that in addition to teaching a secular curiculuum, the teacher’s duties also included teaching a daily religious course, putting her squarely into the long recognized “ministerial exception” to government regulation on employees of churches and religious organizations.

    IThis distinguishes it from your polygamy canard, although the tax exempt status gag was imposed upon churches long after the practice of polygamy fell out of favor with the official Mormon church, which banned the practice in 1890, and then got serious about ending the practice in 1904.

    http://mormon-polygamy.org/polygamy_discontinue

    Both dates were after the US government officially banned the practice in 1862. You can argue that the LDS church did this as a reaction to constant legislative attacks by the United States Government, to raids by the government on Mormon settlements, or as a concession to allow Utah to join the Union. In truth, I don’t believe that it matters, but seeing as the Federal Income Tax wasn’t made a permanent fixture of government until 1913 with the passage of the 16th Amendment, it is silly to conclude that the potential loss of the 501(c)(3) status was a limitation on the practice. In addition, since the practice is one exercised by individuals and is not sanctioned by any official LDS authority, it isn’t even an instructive straw man that you set alight in your post.

    Then there is the matter of the application of the 501(c)(3) status itself. Churches were only added to Section 501(c)(3) exemptions in 1954. But even so, churches do not need to apply for the status to be tax exempt. IRS publication 557 clearly states “Some organizations are not required to file Form 1023. These include:
    Churches, interchurch organizations of local units of a church, conventions or associations of churches, or integrated auxiliaries of a church, such as a men’s or women’s organization, religious school, mission society, or youth group. These organizations are exempt automatically if they meet the requirements of section 501(c)(3). ”

    What is more, under section 508(c)(1)(A), churches are automatically tax exempt, and according to Publication 526, they do not even have to be registered as a 501(c)(3) in order for dontations to them be tax deductable, because they already are. Nor are they required to fill out tax returns.

    This is something that you could have found out for yourself by spending 30-40 minutes (if you read slowly) with a search engine before you ever began typing this hot mess, but then that would have meant that the end product couldn’t mirror the narrative that you wanted to put on this.

    You should be ashamed of yourself, as you can, and have done better.

  3. I wimped out on going to Jerusalem. My wife will almost be 8 months pregnant, by then. I can’t get myself to leave.

    The dude I lift weights with is an exec with more flying miles then he can possibly use.

    When I turned down going to Jerusalem he seemed kind of relieved. He thought my wife might want to kill him. (She was cool with it). In fact, he wouldn’t book my flight until he came over to my house and talked to my wife.

    When he was on his Ipad, my 2 year old was climbing on me and my pregnant wife was sitting on the couch with a big lady bump.

    I just couldn’t leave the fam.

    My buddy says I have a free round trip flight to Israel anytime I want it.

    I’ll go. Just not this Easter. One day.

    He will only give me the miles to go to Jerusalem, as he thinks it’s funny that I really want to go. I was giving him shit about him being 1% and to give me the miles. He jokingly said “fine, but only if you go to the Holy Land.” He thought that was a funny one. But I jumped all over it!

    I feel like such a pussy crusader right now.

    Dickhead, the Kittyhearted. A Pussader.

    I’m kind of bummed. i was so excited about it all week.

  4. R, this post is the pinnacle of incoherent nonsense. Read the opinion. You’re not worthy of forgiveness until you do.

    Religious institutions should be fee to determine who teaches their doctrine, not the state.

    You wrote this just to stir shit up. You’re not this dumb.

    Missing Tex?

  5. Religious institutions should be fee to determine who teaches their doctrine

    So the minute she “crossed the line” from exclusively teaching secular subjects she lost her rights to proper employment practices?

  6. Alfie thanks for the link. I’ll give it a closer look over the weekend. I would expect nothing different from Roberts, Scalia, Alito and Thomas. I want to understand how Kagan and Sotomayor rationalized this one.

  7. Rabbit FWIW I think you made the right decision. No way in hell would I take my 8 months pregnant wife to Israel.

    As for the narcolepsy, laugh if you like but it is a legit condition. I’d be really interested to know if the school would have won the suit without any reliance on church/state separation. Hey, if she deserved to be canned cos narcolepsy simply isn’t compatible with teaching, I’d have little to quibble about. But the religious slant on this still pisses me off.

    As I told Alfie, I’ve got more readin’ to do.

    P.S. Can’t wait for Pfesser or GypsyKat to pipe in on this one. 🙂

  8. How they rationalized it?

    They applied THE LAW, something you apparently know very little about.

    Yes, in doing what she was hired to do, teach doctrine, as well as her secular subject, her employment became religious in nature, which means that the government’s authority over the conditions of her employment ceased

  9. And the reason for not allowing government to interfere with the hiring and firing of ecumenical staff and clergy is to preserve the free exercise of religion which is protected by the First Amendment.

    Anything less would be an unconstitutional encroachment on the sovereign authority of the church.

  10. And as for her “rights to proper employment practices”, she knew who she was being hired to work for. It wasn’t like she woke up after an unscheduled nap and said “Oh shit! I work for a church school, and give religious instruction in the performance of my duties?”

    When you take a job like that, you know what it means.

  11. R keep your focus on cited law for the deeper angle but also that she was “called” not a lay teacher/employee and that the basis of her termination is more focused on violating the internal dispute resolution thing the church has in place. It is that latter that is the basis for the Court to be just as fair to other entities in the future ergo my comment that this isn’t the boogey man not by a stretch.

  12. For what it’s worth:

    a) I wouldn’t travel to israel 8 months pregnant myself, but their hospitals are among the best in the world

    b) In defense of all my mormon friends, it is primarily the Fundamentalist LDS church that is interested in polygamy now – and practice it. They are rather distinct separate community, not unlike the anglicans and the catholics.

  13. The “top” legal experts in the country say it’s legal.

    Legal and fair are two different concepts. Is it appropriate for one group of Americans to be treated differently from another in matters of workplace rules, because one is working for a protected entity? hmmm….

  14. Rutherford @ #84
    “Raji, then I guess my question is are we talking more generational than racial?”

    Yes, I think we are!

    Smart move, Rabbit. Jerusalem will always be there (we hope)

    As to “The Slippery Slope to Sharia Law”, Rutherford, were you trying to ignite some fires or as Tigre said, missing Tex?

    BIW says it all “And as for her “rights to proper employment practices”, she knew who she was being hired to work for.”

    It’s called consequences!

  15. So, Raji, let me put forth a hypothetical for you:

    I believe that my employees should be spanked if they do not perform up to snuff (especially the cute female ones!)

    I hire a secretary and ask her to sign an agreement that, if she doesn’t meet my expectations, I can spank her. She signs this before I agree to hire her.

    She (of course) doesn’t meet my specifications and the consequences ensue. (I believe you used that word, “consequences.”)

    She later decides to sue me. Was this appropriate, or did she know the “consequences” before she signed on?

    This is a real case, by the way – not me, of course…

  16. Raj, this is a matter of “damn the facts, damn the laws, and damn the history, because there is a church that MUST be put in its place by people who don’t like churches.”

    C’mon man. It simply isn’t fair to allow them to hire and fire those who are teaching their doctrine and performing clergy functions without government interference. Government knows best.

  17. “Raj, this is a matter of “damn the facts, damn the laws, and damn the history, because there is a church that MUST be put in its place by people who don’t like churches.”

    That’s one way of looking at it. Another might be, “Are we willing to continue to ignore the concept of Equality Before the Law in order to give special privileges to certain groups – just because we have traditionally done so.”

    They are fighting this fight in Europe right now, over Sharia. But that’s OK, because it is abuse by THEIR religion, which is anathema. Abuse by OUR religion is OK because, well………because we have always allowed abuse and it’s HISTORY AND TRADITION!

    No, we wouldn’t want to address the historical abuses of OUR church, would we?

  18. The salient point here is that the justices made the decision they did based on the law. The question may be whether or not the law should be changed, but that’s immaterial.
    The argument to me seems still to have involved some discretion on their parts. Because she said “they fired me because I have a condition protected by ADA”. They said, “That isn’t why we fired her at all–it’s because she didn’t fulfill her responsibilities as required”. And really, as an employer, all you have to do is prove that’s true (via history of counseling, warnings, etc.) They may have been lying about why they fired her, but…
    As both an employee and an employer, I see both sides. The extreme case of always believing the employee could result in a situation where once you hire someone, you are forced to keep them forever, regardless. Talk about a disincentive to hiring.

  19. Well, Rutherford, the topic is interesting, but I think the court decision was right in this circumstance.

    It may truly have been one where the church did not cite the handicap as a reason for firing, even if that was their real motivation.

    There are several interesting things in reviewing this that come to my mind.

    First, I read where they asked her to be a “called” teacher, as opposed to a “lay” instructor. That seems to contradict a true “calling” in my book. In the Christian faith “a calling” is a prompting from God, not something humans decide among themselves. If the account is true, the institution essentially shot themselves in the foot with this one. This practice would undermine their scriptural integrity, however, and not their legal hiring/firing status.

    Limping along and acting with illegal intent are completely different.

    Second, it seems she bypassed the institution’s established remedies and went directly to a secular source to support her cause. This is supposedly why they “fired” her.

    True, the nonprofits need to follow the rules established in our society when they apply, but here the reason for firing was not cited as due to her handicap. This was her direct attempt to undermine the established protocol the institution held, of which she agreed to when hired..

    While I do think there are many abuses by nonprofits and churches certainly have been plagued with scandal, I don’t think this compares to placing Sharia or Christian edicts over our secular laws.

    Institutions generally have internal means of dealing with abuses, complaints, and conflicts. Only when those avenues have been exhausted or when they obviously are not interested in justice, should one go outside them to seek restitution. Even then it is often an uphill battle. The institutions and corporations generally win in today’s climate.

  20. On points of law, it is very difficult to argue the minority opinion when it is held by a committee of zero.

    On right and wrong you have more leeway, but the Court’s job is to interpret the law, not do what’s right. Most times I would guess that they are one and the same.

  21. Let me give you an example of a similar situation. I once hired a person who was fired from her previous job after she was involved in a horrific car accident, where she had glass from the windshield embedded in her eye. When she was released to come back to work, they said, we’ve replaced you. Sorry. I said, I think that’s illegal! I could not of course ask them if that was how it happened.She was suing them. But I was sympathetic. And I hired her. Big mistake.
    Eventually I fired her too, and looking back, I think she was scheming all along. Once she was fired for completely legit reasons, she threatened to sue although she never did. Had it been me, I would have fought to the ends of the earth. But the company paid her $5,000 not to sue. And that’s how it is these days. It’s cheaper to pay people than it is to fight the legal battles. But that’s nice work if you can get it. Work for a while, get fired, threaten to sue, then get enough money not to have to work for a while. Repeat. You only have to be a scumbag to do it. Small price to pay.

  22. Ok first Rabbit … you have no idea what I know or don’t know about Mormons. I’m told they believe in magic underwear so why shouldn’t I believe most of them support polygamy?

    For the rest, read the next comment.

  23. Perhaps the correct conclusion to draw from this is the law DOES need to change.

    I read through most of the opinion and skimmed other parts (thanks to Aflie for posting and Raji for reposting). I see problems galore:

    1. Money changes everything. To my mind the minute you pay someone to do something you are then subject to commerce and employment laws. The notion that religions are exempt from this, needs to be changed.

    2. The court itself admitted that only 45 minutes of each day were spent by Perich carrying out duties of the clergy. The rest of the time her job was identical to that of a lay teacher. So “calling” be damned, her work was predominantly secular.

    3. She was not offered a payment to resign because she misrepresented the faith. There was NOTHING religious in her alleged inadequacy for the job.

    4. She was told that the school doubted she could do her job even in the next school year. On what basis did they make that call? Are they suddenly medical experts? Her doctor documented she was ready to return to work.

    5. To reiterate 3, this was not a case of the government telling a church who could spread the “word” in their church and who could not. There was never any allegation that Perich taught contrary to church doctrine or was a bad minister. Had she been fired on religious grounds, I would have to concede that the government can’t do anything about it. She was bribed to resign simply because the church must not have believed her doctor.

    6. She ultimately got fired for not cooperating with internal policy, a policy which would have simply gotten her fired with “severance” anyway. She was in a no-win situation.

    7. Anything less would be an unconstitutional encroachment on the sovereign authority of the church. — BiW
    This is exactly the problem, the sovereign authority of the church. Sorry, the authority of the church should ALWAYS be subordinate to the laws of the land. If that is not the case, then please STFU when a Muslim wants to use Sharia law to justify beating the hell out of his wife.

  24. Is it not the case that the SCOTUS must not only consider and interpret current law with respect to the Constitution but also take into consideration how their opinion will effect future findings?

    In this case, the Court took what at best could be called an ambiguous use of the ministerial exemption and claimed it was crystal clear. They’ve emboldened the church to go even further in the future.

    What the Catholic pedophile scandal (and Penn State for that matter) taught us is that we cannot ever let an institution believe that it has the authority to handle matters under the purview of secular law internally. When we recognize the “sovereignty” of any institution we invite abuse. No one is above the law.

  25. The way I see it, an employer should be able to fire your ass for anything they damn feel like firing you for.

    Its supposed to be a free country.

    That being said, employees should organize, come together and say “Fire us all, we dare you!”.

  26. “She ultimately got fired for not cooperating with internal policy, a policy which would have simply gotten her fired with “severance” anyway.”

    Rutherford, basically you are probably right, she got fired because she has narcolepsy. Did the church use her ” calling to the ministry” as the premise to fire her? One will never know.

    “This is exactly the problem, the sovereign authority of the church. Sorry, the authority of the church should ALWAYS be subordinate to the laws of the land”

    Let me throw out another example. A man has a calling to become a priest in the Catholic church. At some point he has a sexual encounter forgoing his vows to be celibate. He is fired (excommunicated). He files suit in the court that he has been discriminated against and can also declare sexual harassment by the Catholic Church and demands he remain a priest.

    The woman in question accepted the call to ministry in the Lutheran Church. The priest accepted the call to ministry in the Catholic Church. They accepted the “Rules” by entering a convent with the sovereign authority of the church.

    If a woman accepts Sharia law then she has accepted the law that justifies a man beating the hell out of his wife. The problem here is more than likely the woman has not accepted Sharia law and therefore the example does not apply to the case of the woman in this discussion.

    Once again we seem to be going back to entitlements with NO consequences. I was involved in a sports event and kept asking people questions as to what I needed to do here and there. Someone said “Read the Rule Book”!!!!! Best advice I ever had.

  27. That’s one way of looking at it. Another might be, “Are we willing to continue to ignore the concept of Equality Before the Law in order to give special privileges to certain groups – just because we have traditionally done so.”

    What you are failing to understand is that this didn’t happen “just because we have traditionally done so.” This happened because it is the law. The First Amendment, by its very nature sets forth specific limitations on the scope and reach of the government’s authority. This is fundamental to the guiding principle of limited government. If the federal government is to have any authority over such matters, as Rutherford suggests, either by a means test or weighing factors such as how much time is spent in ecclesiastical duties, and how much is spent otherwise, then the limitation clearly stated in the First Amendment means nothing.

    If such factoring takes place, then the government now has the power to void decisions that directly impact who is providing spiritual training, guidance, and instruction, rather than leaving that up to the congregants or their religious hierarchies. This would violate not only the First Amendment, but the Establishment Clause as well, since it would mean that government, and not the church/congregants has the final say over who is fulfilling the role of the clergy.

    The only way that you CAN change that law is to change the Constitution. Good luck with that.

    As for the larger principle of “Equality Under the Law”, it has been violated for some time in the service of “higher ideals”. A fact that the Court has recognized even as it has sanctioned the practice, whether it was approving of “set asides” for certain minorities (and not others) based on both skin color, and a lower academic standard than applied to other applicants in Bakke v. University of California, all the way to the modern concept of diversity in university admissions that allows Universities to apply not just objective academic standards in addmission, but also nebulous and undefined “diversity” criteria that is based upon race, but without having to disclose to anyone outside the selection process to what degree.

    Both concepts on their face are in opposition to the concept of “Equality Under the Law”, and although the Grutter v. The University of Michigan case contained a clear warning that the Court would not allow the practice to continue forever, it did affirm the practice as describe.

    Another place in law and politics where the concept is not applied is in the matter of voting rights, and the Department of Justice has “agreements” with local authorities all over the country that allow certain minorities in various places to have more than one vote per individuals in elections. The practice is done to prevent the ‘dilution of votes for those minority blocks’, which does not honor the concept of equality under the law, because no place in the Constitution promises the right to be represented by a person of a certain identity. Nevertheless, the practice continues to this day in states where the Department of Justice controls elections and polling under Section 5 of the Voting Rights Act.

  28. The way I see it, an employer should be able to fire your ass for anything they damn feel like firing you for.

    Well, that depends.

    Some states are “fire at will” states which means that unless you have a contract that states that you can only be fired “for cause”, an employer may technically fire you for no reason at all. That said, the reality is an employer that still has failed to either document poor performance, or have a severe event (like a criminal act by the employee) as cause takes a risk of being accused of a discriminatory purpose for the firing. Even though many such claims are nonsense, often times state and country governments have independent bodies who will investigate and pursue such claims for the employees, thus making it relatively risk free for the employee to do so, unlike when they have to put their own money on the line, or find an attorney willing to take such a claim on contingency.

  29. Is it not the case that the SCOTUS must not only consider and interpret current law with respect to the Constitution but also take into consideration how their opinion will effect future findings?

    No, because doing so would essentially be giving an advisory opinion, which is something that the courts absolutely do not do. The closest that the courts come to doing this is when they correct conclusions and assumptions set forth by the parties, or in the decisions of lower courts, such as when they say that “The ^th Circuit has decsribed this case as being x. However, the court did not take this fact into consideration, which actually makes this case y, which is why this law or doctrine applies, and not the one used by the 6th Circuit.”

    They do not say that “If the facts were this, then the ruling would be that.”, and to base a decision upon the effect it could have upon future rulings would be both speculative, and advisory. The courts are to address only the law as it applies to the controversy directly before them.

  30. In this case, the Court took what at best could be called an ambiguous use of the ministerial exemption and claimed it was crystal clear. They’ve emboldened the church to go even further in the future.

    In this case, the Court recognized that the facts implicated not just Constitutional limitations on its power of review, but a bright-line rule that limits its jurisdiction over such matters.

    Even if I were sympathetic to your feelings about this, I would also recognize the long-standing fact that when the Court has a basis not to make a ruling, it frequently will not, especially when there are other factors that would not make a ruling in favor of the plaintiff a likely result.

    What the Catholic pedophile scandal (and Penn State for that matter) taught us is that we cannot ever let an institution believe that it has the authority to handle matters under the purview of secular law internally. When we recognize the “sovereignty” of any institution we invite abuse. No one is above the law.

    You are mixing apples and oranges again. Take a breath, because I swear when your sacred cow is being gored, you seem to lose the focus that I know you are capable of. No one has advocated immunity for criminal acts here, and no one will. The ADA is a civil statute. This was not a matter prosecuted by the US Attorney’s Office, and while I believe that violations of the ADA can lead to civil penalties and fines, no one is in danger of being sentanced to jail time for breaking it.

    In the case of sex abuse scandals, if statues of limitations have not run, then the offenders are prosecuted, as they should be.
    If the statute of limitations has not run, and the case can be successfully made, then those who were aware of what went on, and covered it up, should be prosecuted for any applicable associated crimes, whether is accomplice liablity,or as co-conspirators. And NO ONE has argued anything different.

    The First Amendment does not shield any member of the clergy, or an ecclesiastical endeavor from criminal liability. This is distinct.

    And having grown up into a family which includes lots of members active in the clergy, and marriying into a family with members active in the clergy, I can tell you that it isn’t something that gets turned on and off. It IS who they are. That’s the whole point of it being a “calling”. It is the reason why this church tries to fill the teaching positions with “called” teachers, who they they instruct in Lutheran doctrine, and only use “lay” teachers when they cannot fill the position with a :”called” teacher. That teacher is there face in the classroom. And even when they are teaching a secular subject, they do not cease being “called” when they do so, especially when they are teaching the very young, as this teacher was. I know you want to think that her particuar ministry was only confined to 45 minutes per class day. I can pretty much guarantee that it was not.

  31. Re: #38, my point exactly. Risk free. But there is something wrong with that picture.
    Re: #36: very bad argument, Raji. Women “accept” Sharia law when they have no choice.

  32. “If a woman accepts Sharia law then she has accepted the law that justifies a man beating the hell out of his wife.”

    “Women “accept” Sharia law when they have no choice.”

    Based on the vast knowledge you both share on the subject?

  33. Good point, Huck. Your vast knowledge is based on…what? Perhaps you were a woman in a past life? One in which Sharia law is law you could accept or reject and go on about the happy business of life? Don’t be dense. In order to understand that I wouldn’t like to be bitten by a snake, I suppose I have to first be bitten by a snake in order to have an opinion?

  34. If she was insufficiently “called”, then perhaps they shouldn’t have hired her in the first place.

    And maybe she was sufficiently called, and the narcolepsy wasn’t the only thing that changed with her. Or maybe she just wanted the job really, really badly, and only took the leave when it became apparent that it was really an issue. Many times with the record you read in the final ruling from the SCOTUS, there are all sorts of things that you don’t know, because it isn’t meant to be a complete recitation of all the facts, just the ones relevant to the ruling.

  35. R, I can understand your sensitivities to anything involving the ADA, but you’ve come completely unglued in this post.

    First off, to comment as you have without even reading the opinion is just foolish. Did MSDNC plant this seed in ypur head? Has Madcow opined on the subject?

    Secondly, BIW has crushed you- repeatedly. Your arguments are disjointed and purely emotional. You’re standing on “feeling” because logic is against you.

    What it’ll take for you to let this go and fess up to being in WAY over you head in details is beyond me. Mormons, sharia, Lutherans, oh my.

  36. First off, to comment as you have without even reading the opinion is just foolish.

    G, if you bothered to read the thread, you’d see that I did eventually read the opinion. I based my prior knowledge on a reasonably objective WAPO article, not on Rachel Maddow. (I’m really beginning to get sick and tired of being accused of being some tool of MSNBC.)

    Once I read the opinion, it did nothing but confirm my original beliefs.

  37. I’m stunned that this decision came down unanimously. I guess the most liberal justices were so afraid of appearing to fly in the face of the establishment clause that they caved to pressure. I imagine there must have been some back room arguments being made before this got decided.

    Even more disturbing … both Thomas and Alito in their concurring opinion broaden the ruling to suggest that we cannot even arrive at a good definition of “minister” since different sects ordain differently. So this means, at least to me, that the church even gets to define its own terms with no civil standard being able to be applied. So the church can do whatever it wants, including calling an apple an orange if it suits their purpose.

    My guess is that Ms. Perich was a difficult person to work with and the leave of absence was the last straw. There is no way a teacher loved and admired by her church would have been given so little latitude.

  38. “As for the larger principle of “Equality Under the Law”, it has been violated for some time in the service of “higher ideals”. A fact that the Court has recognized even as it has sanctioned the practice, whether it was approving of “set asides” for certain minorities (and not others) based on both skin color, ” etc, etc..

    Exactly.

    Because we have done it before does not make it right in either case, and Bakke, et al show clearly the kinds of tar babies you get into when you violate timeless principles in the name of temporary expediency. To my mind that is the whole idea of having laws; making rules when you are NOT excited to keep you from doing the wrong thing when you ARE.

  39. Rutherford reviewing the thread I can only say I regret your final conclusion.
    On one hand you have stayed true to your own views and that is something I can respect. On the other you’ve solidified the position that you are coming from as being all about emotion and unicorn farts. I am also saddened that after reading the opinion you still find this to be such a victory for future theological based oppression in the USA. I can’t see how that plays out. In fact I imagine this case will ultimately be cited some day soon in favor of anti-religion decisions. this decision was an affirmation that the Constitution still matters.
    Laws are important and they need to be respected even when they go against ones feelings and belief systems. If you don’t like a law there are ways to change them.

  40. Emotion aside, an employee must be an asset to whatever entity employs it. When that ceases to be the case, the health of the entity requires it to abort the useless baggage.

    In a world of motion, less friction, less drag…

    Even nonprofits need efficient components to function.

    This person, if an actual believer, will understand that God has another place she is meant to contribute her time and talent.

    So, ADA or not, the end result SHOULD benefit both parties.

  41. Re: #49. Your guess R, is the same as my guess. I suspect the ADA claim is a mere afterthought. A seemingly better reason than “they just don’t like me”. Let me give you an even better example of employee/employer issues. I once had an employee who claimed to have been injured at work, essentially a carpal tunnel syndrome sort of injury. We did everything we were supposed to do. Reported it as a worker’s comp injury (even though we had suspicions). Put him on light duty. Apparently that wasn’t working for him, so once he left, he sued us, claiming that he had made a diffrerent complaint to OSHA regarding the poor air quality he was forced to endure, and we ignored it. Never mind that OSHA never contacted us, nor were they ever able to produce any evidence that he had made a complaint. Again, I would have fought this bogus claim to the ends of the earth…but. He didn’t sue us due to a violation of OSHA, he sued us under the Whistleblower Act. Claiming he was fired (which he wasn’t) because he’d reported us to OSHA (which he didn’t). My company paid him $15,000 to go away. There are seriously unscrupulous people out there. And not all of them work for Goldman Sachs 🙂

  42. I’m stunned that this decision came down unanimously. I guess the most liberal justices were so afraid of appearing to fly in the face of the establishment clause that they caved to pressure. I imagine there must have been some back room arguments being made before this got decided.

    Really? They were afraid to violate the Constitution, so they caved to pressure? While I’m not impressed with the legal accumen of either of them, I recognize that they were smart enough to realize something that you and PF are blind to. That inviolable “wall of separation between church and state” of Jeffereson’s that has been so glibly misconstrued since Justice Hugo Black read it into the Constitution in 1949? It works both ways, or not at all. And I suspect that not even those two believe such a blatant act of hypocisy as to suggest that that it only binds one sovereign and not the other after it has been used as a bludgeon for more than 60 years was going to be palatable to the American Public, which still nominally describes itself as 70% Christian.

    Besides, a 9-0 decision rarely indicates conflict of any kind.

    Even more disturbing … both Thomas and Alito in their concurring opinion broaden the ruling to suggest that we cannot even arrive at a good definition of “minister” since different sects ordain differently. So this means, at least to me, that the church even gets to define its own terms with no civil standard being able to be applied. So the church can do whatever it wants, including calling an apple an orange if it suits their purpose.

    Or they were pointing out to shortsighted would-be meddlers such as yourself why that hands-off position is taken, rather than having to constantly be trying to determine “how much” much of any particular ministerial task meets a guideline arbitrarily decided by someone who has nothing to with determining defining the the ministerial duties for the various clergy of that faith. It confirms that the decision was the correct one.

  43. R, you were asleep when you read the opinion or chose to ignore its soundness. The parade of horribles you surmise won’t follow. I also see that you are incapable of viewing these issue with any level of objectivity which is why you keep digging in.

    MSNBC got it wrong. This has nothing to do with Sharia (and the case where its doctrines were offered as a defense to honor killing, I think) and all that you extrapolate because you don;t understand how the court’s work.

    The difference has to do with ministry versus ministerial within the organization and its rights to preach. Why you keep trying to distort that is really quite strange, but it is obviously the product of your hatred of Christianity.

    I fear that were this were a mosque you’d consider the decision a victory of some sort.

  44. Alf, that was kind of a low blow. That said, I don’t view the decision as being about religion at all. More about the rights of employees v. the rights of employers. Employers have the right to have people working for them that they want, within the already defined limits of what is and is not discrimination.
    And THAT said, I get fairly sick of hearing about the sacred Constitution, which as we all know is subject to interpretation and amendment. The fact that 70% of Americans(I’m taking your numbers at face value BiW) identify themselves as Christian does not make this a “Christian country”, no matter how much you wish it were. If you believe that, then you might as well go back to R’s original premise. If 70% of some country believes that Sharia law is is “right”, would that be okay? Would it be okay if it was in their (malleable) Constituion?

  45. FN, that case was precisely NOT about the rights of employees v. the employers. 🙄

    If it were an “at will” employment state the result would be the same.

  46. “I get fairly sick of hearing about the sacred Constitution, which as we all know is subject to interpretation and amendment.”

    What an utterly ignorant statement.

    So…..you’re sick of hearing about it because it can be amended?

    What the hell does that even mean?

    Reminds me of when you disapproved of the Tea Party because they were angry and expressed that fact with vigor.

    You find me a nation where a constitution isn’t “sacred” and I will find you a miserly population of slaves.

    Ok, you’re sick of the constitution because there are times when we can’t agree over the interpretation.

    So, lets down play the document and give more power to who? Joe Biden? Let the Supreme Court just ad lib at will? Improvising like a jazz musician?

    Man, would my Grandparents have given you a good lesson of what its like to live in the nation you think you desire.

    God help us if you become the majority in this country. You trample states rights. Freedom of speech. The constitution.

    I remember what your stance was on the Arizona shooting last year.

    You wore your fascist arm band, just like Rutherford did.

    Didn’t think for yourself. Followed the angry mob. That shooting was due to the voice of conservatism, according to you. A voice you called to be censored.

    Fakename. You might be a nice, lonely old lady living in a shoe. And, if I was neighbor, I’d shovel the snow and help you with landscaping.

    But you’re still a fucking fascist!

  47. I think sensico has Rutherford bound and gagged. She actually wrote this blog entry.

    Rutherford is getting absolutely bitch slapped.

    Just emotional drivel. Rutherford was in the mood to make the silly “dominion” argument. But, he didn’t have the work ethic to do the research so that he could make some sense.

    (By the way, after coming here for years, it’s absolutely hilarious to see Rutherford stomp his feet and whine about how everybody calls him a MSNBC stooge. LOL! )

    One thing is for sure, Rutherford’s obsession with church and God and Jesus continues.

    He reminds me of one of those guys who still has Daddy issues in is 40’s. Except it’s God!

    Fucking Atheists. All they want to do is talk about Church and God.

  48. Tigre, I can’t decide whether you or Alfie win the prize. I was counting down the minutes until somebody told me I was too stupid to comment, didn’t understand the issues, didn’t understand law, etc., etc., etc. Technically Alfie probably won, but I’m willing to share it.
    Ultimately the case in fact WAS about employment law, regardless of how bogged down in minutiae you choose to get. You lose a broader perspective when you do that. When it gets to the point whee only other lawyers speak your language, it’s time to take a step back and reevaluate.

  49. Lawyers bug me as much as any other American.

    But what did they say that was so complicated?

    This wasn’t “legalese” bull shit. They explained it simply.

  50. “That inviolable “wall of separation between church and state” of Jeffereson’s that has been so glibly misconstrued since Justice Hugo Black read it into the Constitution in 1949? It works both ways, or not at all. ”

    I must be missing something here.

    Do you think everything goes both ways? Let’s see…Federal law always overrides state law if there is a conflict. Does that mean state law overrides Federal law if there is a conflict? ????? It must; after all, that’s both ways or not at all.

    Church and State may be separate, in that the church has no say in laws of the State, but the reverse is most definitely not true. If you think so, tell it to the Catholic priests getting prosecuted bu secular authorities for butt-fucking little boys, after “having a talk with the Bishop” as their church punishment.

    My Boy Hugo’s opinion notwithstanding, the first reference was the much-discussed letter from Jefferson to the Danbury Baptist Assn., somewhere around 1800. He scooped Hubo a few years.

  51. Rabbit…um, that’s not the way I remember it. Unless you can find something to prove me otherwise, I’ll go with thinking then and now that Loughner was crazy, and no amount of gun control, interpretations of the First Amendment or the Constitution in general could have changed that. I may have defended R;s take on it. I guess he has a right to his opinion but no right to expect that he won’t be ridiculed for it. Speaking of the First Amendment.And I have some very bad news you: I AM in the majority. Now I guess I’ll go commune with my cats and my ferns.

  52. Minutiae? Establishment clause, first amendment is minutiae?

    FN, this is not an employment case and that’s why the decision went to the SCOTUS to begin with.

    If you didn’t know it, the Supreme Court does not hear “employment cases” unless the implicate constitutional questions.

    Ad as far as “broader perspective” and so “language” that touches on your insecurities (and quite obviously not any intellect) go fuck yourself. You ignorance speaks for itself.

  53. BiC, looks like we razzle-dazzld them with our special lawyer speak and lack of perspective. 🙄

    Oh that’s right. The Constitution is so overrated, especially when it’s being interpreted. 😆

  54. Don’t worry about it, fakename. They are definitely not smarter. A brief survey of any freshman law class will reveal it to be three years of competitive drinking school.

  55. I must be missing something here.

    Nooooo. You think?

    Do you think everything goes both ways?

    Is that what I said? Think about this for a second. What is the function of a “wall”?

    Let’s see…Federal law always overrides state law if there is a conflict. Does that mean state law overrides Federal law if there is a conflict? ????? It must; after all, that’s both ways or not at all.

    This assertion? I think you need to buy a better Constitutional law book than the one you are reading from, because the one you’re using is imparting an imcomplete picture of how the Supremacy Clause works.

    ” This clause [the Supramacy Clause] lays down one of the key prinicples of the Constitution, a principle that makes federalism work: Within the scope of its powers the national government is supreme. {Emphasis mine}Any provision of a state constitution or any state law is null and void if it conflicts with the Constitution, with a federal law passed in pursuance of the Constitution, or with a treaty made under the authority of the United States.”

    Corwin and Peltason’s Understanding the Constitution, Twelfth Edition J.W. Peltason, page 159.

  56. BiC, our resident legal scholar figured out the real import of this decision. Spanking female employees might not be a right an employer can contract for and legally enforce.

    FN I think we found your night in shining armor. All things to all people all the time. Just ask him. 🙄

  57. Don’t worry about it, fakename. They are definitely not smarter. A brief survey of any freshman law class will reveal it to be three years of competitive drinking school.

    There is a difference between being smarter and knowing more. Smart is about the ability to quickly learn and understand things. Knowing more is about knowing niggling little “minutia” like history, facts, and law, and is usually the difference between having the perspective to understand why something is, and knowing that it is right vs stamping your foot and sounding like a twelve year old screaming about why something isn’t “fair”, or that it ought to be different than it is when you cannot even explain why the thing you want to change is the way that it is in the first place.

    I think Rutherford is smart. I also think that his perspective is completely uninformed, and that his butthurt over discovering that the state (little “s”) has limits which are still recognized by at least one of the three branches of the federal leviathan, has blinded him to his ability to otherwise understand this.

    As for your comment about law school, it may well be true for the schools where all the effort is expended in getting in…the Ivy League schools and some of the other “prestigious” institutions. However, at both the law schools I attended, the students were too busy reading, analyzing, briefing, and arguing in their effort to be the one “A” in each course to spend time competitively drinking, and the ones that were drinking competitively were gone by the second semester.

  58. Yo fakename, I’m not playing a gotcha game.

    The response from the left over that shooting left a chilling and profound effect on me. So, I remember it all vividly.

    I will never forget it. I still can’t believe how the left handled that. I often wonder, what if Rutherford wasn’t full of MSNBC shit. What if the guy was a Tea Party member? Would the national forum been shut down?

    The pathetic way guys like Rutherford jumped on the bandwagon of fascism raises the hair on the back of my neck to this day.

    The Reichstag building burned for 24 hours.

    And you, my baroness, were one of the fascists screaming fire!

    “Now if you will point me in the driection of another former VP candidate, who holds enormous sway over a portion of the electorate, and who used the imagery of a rifle scope targeting candidates for office, I’ll condemn them equally.
    On one of these posts, someone said “politics is messy”. This is beyond messy.”-Fakename 12 hours after the shooting, blaming Sra Palin

  59. I would venture to guess that churches and nonprofits are/were the largest employer of handicapped persons – percentage-wise. That is just a guess on my part.

    Football… ho hum.

  60. ‘Do you think everything goes both ways?’

    “Is that what I said? Think about this for a second. What is the function of a “wall”?”

    It’s not a physical wall. It’s a concept. They didn’t tell you in law school?

    If you must, think of it as a wall with a one-way door in it. I can intrude on your side of the wall, but you cannot intrude on mine.

    The church in no way has equal standing as the State, any more than the Masons, the ATLA or the AMA. And slowly, surely, inexorably – that point is being forced home in America. The church is subject to the same laws as anybody else (with some exceptions right now, but we’re working on that).

  61. This article claims some of the founders were closer in belief to Islam than Christianity. That ought to get the fundamentalists worked up. 😉 Too bad Tex isn’t around to deny this and shout Allahu Akbar at it, and try to convince us that Islam is some kind of devil worship. I guess all his prior such rants will have to suffice.

    http://rupeenews.com/2012/02/founding-father-diests-rejected-trinity-and-were-unitarian-very-close-to-islam/

    The history of the US has not been researched from an Islamic perspective. It seems almost all the founding fathers had beliefs which were very close to the concepts as proposed by Islam.

    So really, Sharia law was a part of what our founders knew and included in their intentional separation of church and state. That “wall” separates ALL religion from the affairs of government, though religious men can still operate within its framework.

  62. And THAT said, I get fairly sick of hearing about the sacred Constitution, which as we all know is subject to interpretation and amendment. –

    Really? You DO realize that those annoying amendments are the reason you can make such statements without fear that the Gestapo will knock on your door.

  63. “BiC, looks like we razzle-dazzld them with our special lawyer speak and lack of perspective.
    Oh that’s right. The Constitution is so overrated, especially when it’s being interpreted.” ET

    Sorry R, I agree with the “smart guys” on this one. I wonder, do churches have to abide by federal minimum wage rates?

  64. My company paid him $15,000 to go away.

    Damn FN, I need to get a job at that company just so I can make a stink and sue. Are they a private enterprise or a charity? 😉

  65. I wonder, do churches have to abide by federal minimum wage rates?

    IMHO, in a word … yes. It’s called employment. Employment law is in the purview of the government.

    I’m considering a new post. One which will broaden my overall assertions on this stuff (or in the words of BiW and Tigre, dig my grave deeper.)

  66. In defense of Fakename2’s comment about being sick and tired of the Constitution, I believe what she was saying is that she is sick and tired of the Constitution being cherry picked to defend the indefensible.

    There are those who constantly quote the Constitution who remind me of those who constantly quote the Bible. And of course, since so many of those believe the Constitution to be Biblically inspired, this should not surprise,

  67. I wonder, do churches have to abide by federal minimum wage rates?

    The answer is going to rely in part on what the employee does.

    The Fair Labor Standards Act can be complex without placing it in a church atmosphere. If you are talking about a church employee who doesn’t perform ministerial duties…like a secretary, or a janitor, you have to apply the standard test to see if they qualify as a salaried (exempt) employee, or hourly (non-exempt).
    Ths is a gross simplification, but there isn’t much point in discussing the minutia that doesn’t really answer the question.

    However, once you start talking about, if the ministers/pastors/priests meet the salary test set forth in the law, then they generally qualify as an “exempt” employee. Where it becomes an issue is when the salary falls under a certain amount. Even then, federal courts that have ruled on the question, and Department of Labor regs generally hold that the Fair Labor Standards Act doesn’t apply to ministers because of the ministerial exception.

  68. I’m considering a new post. One which will broaden my overall assertions on this stuff (or in the words of BiW and Tigre, dig my grave deeper.)

    Knock yourself out.

    However, as I have already stated, when you don’t know why something is the way that it is, your argument why it shouldn’t be that way is not very convincing when you talk to people who do.

  69. Surprise, surprise. BiW’s comment is exactly right. You can;t express your outrage (or fear, or whatever it is that motivates your departures like this) without understanding your subject matter. To insist otherwise makes it an exercise in futility.

    In this instance you repeatedly disregard the status of the plaintiff (employee v. ministry) which was critical to the decision. In this case, the alleged employee was not deemed to be within the definition of “employee” under Title VII based on her status within the church and Constitutional limits on government interference in religious matters).

    Think about that when the next question is, “does a priest have a right to sue to insist on minimum wage and/or receive benefits or other conditions of employment — and when the discussion travels from there to obvious topics like “must a mosque hire female Imams based on federal gender anti-discrimination laws, and if not why not?”

  70. Tigre, ehhhhh no. Obviously the status of the employee was ambiguous at best. The Supremes overruled a lower court. I say the lower court got it right, I’m quite sure the folks on the lower court still think they got it right.

  71. Think about that when the next question is, “does a priest have a right to sue to insist on minimum wage and/or receive benefits or other conditions of employment — and when the discussion travels from there to obvious topics like “must a mosque hire female Imams based on federal gender anti-discrimination laws, and if not why not?”

    I think I answer that question in my next post. It comes down to the nature of the activity of the religious institution. Is it secular activity or religious activity? See you on the next thread.

  72. Rutherford, eh, no. You don’t know how the case was decided in the lower court or why it was picked up on certiorari.

    As for , eh “no” you only reinforce your inability to see how this case was decided. The employment status was paramount and determined by the church. Don’t “eh no” me.

    So, you’re digging in as expected. I can’t wait for more.

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