I recently explained the importance of the Supreme Court’s decision affirming a church’s right to control whom it employs as a teacher in its religious school in a post you can read here. Unfortunately, the vital protection this case provides for religious freedom has largely been lost on the mainstream media. Instead, they’ve often focused on how this decision may affect teachers at religious schools. One AP article went so far as to assert that a teacher of Jewish Studies at a Jewish school should be seen as a “teacher whose subject is religion, not a religious teacher.” In the context of a religious school, this is completely at odds with the concept of religious freedom.

The Court of Appeals in the Hosanna-Tabor case made a similar argument (which was thankfully rejected by the Supreme Court). It opined that the teacher who sued the religious school wasn’t a minister because she spent six hours a day teaching secular subjects like math, social studies, and music.  Only an hour or so was spent on exclusively religious instruction. The fact that the teacher also lead weekly chapel services, taught a 30-minute religion class four days per week, lead prayer three times per day, and taught a morning devotional was considered to be largely irrelevant.  So the school was prohibited from firing the teacher, even though she violated church teachings regarding mediation of disputes among believers.

The appeals court (and the Associated Press) failed to recognize something even Christians sometimes forget – our biblical worldview and Christian principles affect all aspects of our lives.  That certainly includes how we teach our children all subjects – even those that don’t appear to be “religious” – such as music and social studies.  It even includes math, as demonstrated by the great mathematicians Sir Isaac Newton and Rene Descartes. And it certainly includes religious classes like Jewish Studies at a religious school that has as its purpose inculcating the religious theology and values of a particular religion.

Saying the Hosanna-Tabor case undermines the rights of teachers is like saying the desegregation case Brown v. Board of Education wrongly ignored the rights of teachers who wanted to only teach certain kids. The larger, more important, principle of elimination of racism – or protection of religious freedom in this case – is being missed. Thankfully, all nine Justices of the Supreme Court aren’t influenced by the misguided opinions of the Associated Press.

A recent column in USAToday titled “5 rules for faith and politics 2012” proposes rules the authors say would avoid both theocracy and hostility toward religion. But all they succeed in doing is marginalizing people of faith who have the audacity to think their most cherished beliefs about God and morality should affect all aspects of their lives - including how they vote. A review of their “5 rules” indicates what the authors really want is for people of faith to keep their religious convictions to themselves. Their fear of a theocracy is completely unfounded.  Virtually all of the Founding Fathers had a political philosophy that reflected their Christian beliefs and nobody would argue they set up a government that established a theocracy. I suspect what the authors are really afraid of is people of faith waking up to the fact that we must have moral, God honoring leaders if we expect to have a moral, God honoring country.  Their proposed rules attempt to shame religious voters into closing their eyes to a candidate’s moral convictions (or lack thereof).  Moreover, they ask people of faith and their churches to sacrifice the religious freedom that is the foundation of our country.

Their first rule advocates that the wise constitutional provision prohibiting the government from imposing a religious test for office  should apply to individuals also.  They say, “Voters should evaluate candidates based on their policies, their values and their character but not on whether or how they choose to worship.”  Of course, one’s values and character are heavily influenced by religious beliefs.  Not to consider them would be foolhardy.  And I highly doubt the authors themselves would vote for someone whose religious beliefs include child sacrifice (which recent tragic reports demonstrate is not merely an implausible hypothetical).

The next rule would prohibit the Catholic Church from denying communion to politicians who fail to abide by and uphold the Church’s beliefs.  The authors think churches should not hold their members accountable when members act in a way that is contrary to what they say they believe. This effectively encourages hypocrisy. Under this rule, politicians can say they believe abortion is murder on Sunday but vote to allow it (and force all taxpayers to pay for it) on Monday – and their church is absolutely prohibited from taking any action to correct them.  This asks churches to forfeit a long established right to govern themselves and their members without governmental interference.

“Candidates should refrain from citing religion as the exclusive authority for their position on issues,” is the authors’ next proposal and it also restricts religious freedom.   The rule is really just a restatement of part of the Supreme Court’s Establishment Clause Lemon Test which requires all government actions to have a secular purpose.  Putting aside whether Lemon is a good test or not, it only applies to the government, not a candidate.  Obviously, if they are elected to office, candidates will want to be able to articulate reasons for their policies that aren’t necessarily based on religious conviction in order to persuade their colleagues that don’t share those convictions.  But when a candidate is running for office, there’s absolutely nothing wrong with saying something like, “my deeply held religious beliefs prohibit me from voting for laws imposing the death penalty.”  This creates no constitutional crisis and many voters are interested in what’s underlying a candidate’s views on a particular issue.

The fourth proposed rule, as explained by the authors, appears to be relatively benign.  As I understand it, they believe politicians should avoid alienating anyone who does not share their religious beliefs, but they should be free to express their personal religious beliefs.  They use former President George W. Bush’s reference to Christ as being the most influential political philosopher in his life as being acceptable.  To the extent the authors are saying they think it’s smart for politicians to avoid offending people of different faiths, that makes sense.  But the idea that this can be accomplished by not using references to God, and instead saying “the Creator,” “the Almighty,” or “Divine Providence” is naive.  These terms may offend any number of groups, including atheists and polytheists.

The final proposed rule is fraught with danger and inaccuracy. It reflects the current law (the “Johnson Amendment”) which prohibits pastors from preaching to their congregations about how a candidate’s platform lines up with scripture. The authors claim this law is necessary to avoid election fraud.  But pastors who preach sermons and apply Scripture to political candidates are not making an “end-run” around campaign finance laws.  They are exercising their right to freedom of religion.  The tax code restrictions that prevent churches and pastors from specifically discussing how their faith applies to a particular election and the candidates in that election trample the First Amendment.  (Click here for an excellent article by my colleague Erik Stanley summarizing the constitutional problems with the Johnson Amendment).  Other tax-exempt organizations, such as veterans’ groups, are allowed to endorse or oppose candidates and remain tax-exempt while giving their donors a deduction for contributions.  Why single out churches and religious organizations for discriminatory treatment?Further, whether such endorsements or oppositions are “deeply problematic from a religious perspective” is a great question for churches to debate but not for the government to mandate. Those who believe their faith requires that they apply Scripture and its teachings to specific candidates and elections are prohibited from doing so by the Johnson Amendment.  The government, in effect, has mandated a winner in what is a quintessential theological debate:  namely whether churches should apply Scripture in a way that opposes or endorses a candidate.  The Johnson Amendment allows government to act as a type of “orthodoxy police” to enforce its own view of how religion should apply to candidates and elections. That is not only offensive from a religious perspective, it is blatantly unconstitutional.

Professor Carl Esbeck is fond of saying, “The government does not establish religion by leaving it alone.”  But the authors’ “5 rules for faith and politics” have the opposite effect.  For the most part, they meddle in the religious affairs of churches and individuals, requiring them to check those beliefs at the door whenever the realm of politics is entered.  This misguided attempt to “cleanse” politics of religion is a bad idea because it tramples religious freedom, and would make politics a completely secular, amoral undertaking.  God knows it’s bad enough already!

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An Egyptian court is reported to have sentenced a man to three  years in jail and hard labor because he ”intentionally insulted the dignity of the Islamic religion and attacked it with insults and ridicule on Facebook.” No mention is made of exactly what the man said, or what his religion is, but it’s likely that he wasn’t a Muslim because the court observed that ”all members of religions are obligated to tolerate the others’ existence.”

Egyptian law prohibiting insulting another’s religion in an attempt to protect religion obviously has the opposite effect.  If merely criticizing Islam can land you in jail for three years, you will very likely refrain from saying anything that remotely appears to view other religions negatively (such as ”Jesus said, No man cometh to the Father but by me.”)

The Pew Forum on Religion and Public Life published a study on August 9, 2011 that directly ties laws prohibiting the defamation of religion to an overall decrease in religious freedom.  We need to do all we can to assist Christians in places like Egypt by pressuring their governments to adopt laws that protect freedom to believe and to express those beliefs – even if they might be deemed critical of others.  Moreover, we must diligently defend religious freedom in our own country by resisting all efforts to characterize speech critical of other religions as “hate speech” that is somehow less deserving of full constitutional protection.

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There’s an increasing willingness in the U.S. to categorize any speech critical of a particular religious belief as “hate speech” that is some how not worthy of First Amendment protection.  But the Supreme Court held over 70 years ago in Cantwell v. Connecticut that pointing out the errors of the religious beliefs of another is exactly what the Free Speech Clause was designed to protect. If it’s not protected, everyone’s freedom suffers because one never knows when their particular religious views may be deemed critical of some else’s.  For instance, merely holding a sign in a public park stating, “Jesus: there is no other name under heaven given to mankind by which we must be saved.  Acts 4:12″ seems innocuous enough.  But it might be considered offensive to, and defamatory of, religions who believe there are many paths to salvation.

The danger of not protecting speech that defames or criticizes a particular religion is dramatically demonstrated in other countries that have started down this slippery slope.  The Pew Forum on Religion and Public Life published a study on August 9, 2011 that directly ties laws prohibiting the defamation of religion to an overall decrease in religious freedom.

“Globally, countries that have laws against blasphemy, apostasy or defamation of religion were more likely to have high government restrictions or social hostilities than countries that do not have such laws. A solid majority (59%) of countries that enforce such laws had high or very high restrictions on religion (government or social) as of mid-2009. Among countries that do not have such laws, by contrast, 58% had low restrictions or hostilities. Not only were government restrictions and social hostilities involving religion generally higher in countries with laws against blasphemy, apostasy or defamation of religion, but restrictions also rose in many of these countries.”

The Pew report observed that laws criminalizing defamation of religion are often touted as means of protecting religion.  In reality, the numbers show they have the opposite effect. These laws are the proverbial wolves in sheep’s clothing.  Giving government the power to say what religious speech is acceptable is a lousy way to protect religion. It simply doesn’t work.

It is vital that we continue to resist efforts in this country to categorize speech critical of a particular religion or religious beliefs as “hate speech” that is somehow unworthy of full constitutional protection. Another 1940s Supreme Court case said it best. “If there is any fixed star in our constitutional constellation, it is that no official,  high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia State Bd. of Educ. v. Barnette.

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If you’ve ever watched “Leave it to Beaver” re-reruns, you know that Beaver, the young star of the show, was always getting hassled by his older brother’s friend, Eddie Haskell.  Eddie was the neighborhood smart-mouth.  When the abuse became unbearable, the Beaver would say something like this, “Gee Dad, Eddie’s giving me the business again.”

That’s exactly what the Sixth Circuit did to a church’s religious school in the EEOC v. Hosanna-Tabor case last year.  It didn’t just give churches the business, it got the government involved in their business when it ruled the school could not fire one of its teachers for threatening to sue them.  The teacher was a commissioned minister in the church and tasked with teaching church doctrine to students, not only by leading daily devotions, but also by infusing every subject with a biblical worldview.  When she threatened to sue the religious school over an employment dispute, the church revoked her status as a minister and let her go.  The church and its school observe the New Testament admonition that Christians should not bring their disputes before secular judges. (As I demonstrated in a recent blog,such suits among believers are not only unbiblical, they are foolish).  More details on the Hosanna-Tabor case and a copy of the Sixth Circuit opinion are available here.

Courts have long kept out of employment decisions made by religious organizations regarding their ministers.  The doctrine is called the “ministerial exception” and it’s rooted in the idea that a secular court isn’t equipped to review a spiritual decision by a religious organization regarding individuals charged with communicating theology to others.  One of the clear reasons for the First Amendment’s Establishment Clause is to keep the government from entangling itself in church affairs.  As Professor Carl Esbeck often says, “the government doesn’t establish religion by leaving it alone.”  But the Sixth Circuit ignored these well-established principles when it determined that, even though the teacher was tasked with inculcating religious principles into students throughout the day, she also taught secular subjects like history and science.  ”Everyone” knows a biblical worldview is not important in these types of subjects, and there are no religious principles to be learned!

The good news is the U.S. Supreme Court has agreed to review the Sixth Circuit’s decision this year.  It will be the first time the Court has directly ruled on the ministerial exception, which is widely recognized by lower courts.  This will likely have significant ramifications for all churches so please be in prayer for this case.  ADF recently became involved in this case at the trial level, and one of our allies, the Beckett Fund, is representing the school before the U.S. Supreme Court.  We will continue to work to help the Court come to a decision that protects religious freedom and keeps the government out of the business of churches.

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