HSLDA | Swedish Pol to Social Services Minister: Take Homeschooled Kids!
EXCERPT: In a controversial opinion article in Aftonbladet, a prominent Swedish newspaper, Lotta Edholm, one of the leaders of Sweden’s liberal party, has called for a change in the country’s social services law to encourage social workers to take children away from homeschooling families.
Edholm writes in her blog “That the Deputy Minister of Social Affairs, Maria Larsson … should take an initiative to change the social services act so that the social authorities can intervene when children are kept away from school by their parents.” This is the most direct and serious threat to date for homeschooling families in the Nordic country where the climate for homeschooling is literally freezing.
According to Jonas Himmelstrand, president of the beleaguered Swedish Association for Home Education, Lotta Edholm’s view that homeschooling is incompatible with democracy turns freedom upside down.
READ THE FULL ARTICLE:
http://www.hslda.org/hs/international/Sweden/201201130.asp
The U.S. Supreme Court made the Right Decision When It Upheld the Ministerial Exception
Since the U.S. Supreme Court issued its unanimous decision in Hosanna-Tabor v. EEOC on January 11, 2012, there has been a lot of discussion regarding whether the court did the right thing when it upheld the ministerial exception and denied jurisdiction in a case involving the termination of a ministerial employee. For reasons outlined below, I believe the Court made the right, albeit difficult, decision.
This was the case of the parochial school teacher who in addition to teaching on secular subjects also performed religious functions, Chery Perich, who was fired for threatening to file a lawsuit under the Americans with Disaiblities Act when she was not given her job back after returning from medical leave. The religious employer argued that it was against its religious beliefs for a minister to sue the church, and that these things had to be handled within the church structure.
The issue presented before the Court was whether the anti-retaliation prohibition of the Americans with Disabilities Act (ADA) could be constitutionally applied to a religious association’s retaliatory firing of a parochial school teacher who taught secular subjects and also performed religious functions and was designated a commissioned minister.
The Supreme Court found that the Establishment and Free Exercise Clauses of the First Amendment bar ministers from bringing lawsuits against their churches in which the ministers claim violation of employment discrimination laws. In this case, the Court found that Perich was a minister within the meaning of the ministerial exception, and therefore the First Amendment required dismissal of her employment discrimination suit against her religious employer.
The ministerial exception gives religious institutions certain rights to control employment matters without interference from the secular courts. It does not, as the Court decision points out, affect criminal, tort, or contract law. So churches cannot use it to shield themselves from liability for criminal acts, negligent behavior leading to accidents, or breach of contract. But it does protect churches from being hauled into court for religious decisions that have been made.
Some have tried to advance the theory that Perich had not fully pursued the administrative remedies available to her in the parochial system, but that would not have changed the outcome which hinged on the threshold issue of whether the ministerial exception applied to her. If the exception applied, the Court lacked jurisdiction.
Another misconception is that the Hosanna-Tabor decision somehow establishes the ministerial exception and adds something new. In reality, Congress specifically built an exception for religious organizations into Title VII of the Civil Rights Act of 1964. Title VII was enacted by Congress to prohibit employment discrimination on the basis of race, color, religion, sex, or national origin. (42 U.S. C. §§ 2000e-2(a)). Under the statutory exception, religious employers could prefer members of their own faith in making their hiring decisions.
The actual ministerial exception was born in 1972, when, in McClure v. Salvation Army, the U.S. Court of Appeals for the Fifth Circuit refused to hear a female minister’s gender discrimination claim. The court found that applying the provisions of Title VII to the employment relationship existing between a church and its ministers would therefore “cause the State to intrude upon matters of church administration and government” which would “result in an encroachment by the State into an area of religious freedom.”
The way it works is that courts in most Circuits rely upon a role-based or “primary duties test” to determine whether an employee is a minister within the exception, and whether or he she can bring suit under Title VII. Several circuits have adopted an approach that religious institutions should be able to choose who will perform certain spiritual functions. The first approach focuses on the employment relationship, while the second focuses on the right of churches to exercise their beliefs more freely.
Perich was, in many ways, the perfect “poster child” to challenge the ministerial exception. The case clearly involved a non-religious issue and for all the world, it looked like the church was looking for a way to fire her in a way that would be against public policy as applied to secular organizations and still avoid being hauled into court for violating the Americans with Disabilities Act.
In fact, the EEOC, the ACLU, and Americans United for Separation of Church and State (“AU”) rallied to Perich’s side. In its brief, AU argued that the ministerial exception did not entitle religious entities to discriminate or retaliate for reasons unrelated to religion, and that courts should determine whether an asserted religious justification for an action is pretextual.
In short, a church would therefore need to pass a two-prong test – first, it would have to demonstrate that its discriminatory rule was related to its religious beliefs; second, it would need to demonstrate that its action was not “pretextual.”
The AU brief gave some examples of what it meant to litigate on issues of discrimination that were not particularly related to a church’s doctrine. For instance, a Catholic Church could not be forced to hire a female priest, but an otherwise egalitarian church would not be permitted to fire a Sunday-school teacher when the pastor had a purely personal belief that “women should not work outside the home.” The examples continued for several pages, permitting organizations to make discriminatory doctrinal rulings but not permitting local churches from acting in contrast to non-discriminatory denominational policies or practice.
Applying an Employment Division v. Smith style argument, AU argued that generally applicable employment laws should apply to churches unless there is a need to safeguard a constitutional right. Why they would appeal to this analysis is particularly curious. The Smith decision created a major problem for free exercise of religion by subjecting religious minorities to the rule of the majority even if it goes against the minority’s religious beliefs. (One can hope that the Court, in the near future, might see the wisdom of applying the Hosanna-Tabor analysis to individual religious liberty rights and re-establishing the Free Exercise Clause that was compromised in Smith.)
The AU brief is helpful in that it provides a concrete example of the depth to which the government and courts would need evaluate in order to determine whether church employment decisions were permissible or not.
Under the approach proposed by AU, church decisions would be open to scrutiny as to whether they were doctrinal or not, and the investigators would then need to go into the minds of the decision makers to see whether such decisions were made in good faith and not merely to achieve a favorable outcome for the institution.
As people often say, bad cases often make bad law and the Supreme Court had just such an opportunity to throw away the ministerial exception in this highly sympathetic case and effectively destroy the wall of separation of church and state by allowing the state entry into the inner workings of the church. Fortunately the Court saw the bigger issues involved and made the right decision.
However by ruling the way it did, the Supreme Court protected the right of a religious organization to select its clergy without government interference and avoided placing church doctrine under government interpretation. Civil magistrates will not be in a position where they are forced to determine which religious view, that of the clergy member or the church, is correct.
Church leaders are free to choose ministers who they believe will carry their message forward.
While most religious organizations sincerely strive to provide fair and equitable treatment to all employees, this does not mean that some religious organizations will not abuse the “ministerial exception” to make poor personnel decisions that could lead to costly litigation if they were secular organizations. But organizational decision makes should realize that they will ultimately answer to a Higher Power even if these cases may not be pursued in the civil courts.
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For more information on the ministerial exception and its history, I would recommend the Charleston Law Review article by Todd Cole, “The Ministerial Exception: Resolving the Conflict between Title VII and the First Amendment.” The article is available online at http://www.charlestonlawreview.org/archive/vol4num4/Cole.pdf
Campaigning for Candidates from the Pulpit is a Bad Idea
The “Johnson Amendment” prohibits most church pastors from making declarations “in support of or in opposition to candidates for public office.” Is this limitation on freedom of speech constitutional?
One thing is clear – the electioneering ban is not rooted in Jeffersonian views of separation of church and state or the First Amendment which are silent on issues involving the interplay between tax-exempt organizations, including churches and charities, and the Internal Revenue Code. Under section 501(c)(3) of that code, churches and other charitable organizations are exempt from income tax and entitled to receive tax-deductible contributions from donors.
Instead, it is based on an agreement that non-profits make with the IRS. In order to obtain 501(c)(3) status, applying organizations must represent that they will not participate in any political campaign on behalf of, or against, any candidate for political office. A contributor to a church that does not sign up for 501(c)(3) status can still deduct those contributions from his or her income but if that contributor is audited, he or she has the burden of establishing that the church meets the qualifications of a section 501(c)(3) organization.
On October 2, 2011, as part of “Freedom Sunday” which is promoted by the Alliance Defense Fund, 539 ministers throughout the United States defied the IRS rule and identified where candidates stood on the issues and “where followers of Jesus Christ should stand.” ADF claims that before 1954 when the Johnson Amendment was passed, preachers could promote candidates from the pulpit and that the effect since then has been to “silence and chill the pastors.”
So far, it does not appear that the IRS has taken action to revoke the 501(c)(3) status of these churches. In fact, such cases are exceedingly rare. The U.S. Supreme Court has yet to address this issue head-on although a lower court, the District Court for the District of Columbia in Branch Ministries v. Rossotti (http://www.irs.gov/pub/irs-utl/branch_ministries.pdf) did find that the IRS could revoke the tax-exempt status of a religious organization that bought and published a newspaper ad in the New York Times and the Washington Post that specifically and clearly argued against a political candidate. The ad said, “Bill Clinton is promoting policies that are in rebellion to God’s laws.” The ad concluded, “How then can we vote for Bill Clinton?” At the bottom, the church was named along with an invitation for readers to make a “tax-deductible donation” to pay for the advertisement.
A church that loses its tax exempt status will operate like any other corporation for purposes of tax liability. They would be able to speak out freely but some contributors may be less inclined to donate if they cannot take the tax deduction.
If 501(c)(3) organizations were suddenly able to engage in partisan politicking, and donors were able to give on a tax-deductible basis, donors could ostensibly deduct currently non-deductible political donations simply by funneling these monies through churches. Churches would not only pass the collection plate for their religious mission, but churches would also be able to use these tax-deductible donations on behalf of particular candidates.
Large churches could bankroll entire political campaigns and receive favorable treatment from those who support them. Politicians could visit with church pastors and lobby them for their campaign support. The lines of mutual respect between church and state could be erased as churches become nothing more than overt political mouthpieces during campaign season.
Because of the tax advantages, it is not inconceivable that churches would become a primary venue for gathering votes as political goals were interwoven with spiritual teachings. A politician who ignored this new reality would be at a distinct disadvantage.
In response, many congregations might, as a matter of policy, refuse to allow the politicking from their pulpits but may perceive that they lose the favor of politicians who receive their support elsewhere. In churches that permitted politicking, congregants of different political persuasions than their clergy might feel alienated and leave.
As it now stands, churches and charities are welcome to speak truth to power on the issues that matter – from opposing human trafficking, to lobbying for workplace accommodation for religious employees, to pursuing morality and justice. Religious organizations just cannot support or oppose particular candidates or political parties. This is a good thing.
In Nigeria, escalating religious conflict impacts Adventist Church (ANN)
Jan. 23, 2012 Abidjan, Ivory Coast
Gilbert Weeh/ANN staff
The Seventh-day Adventist Church in Nigeria is seeing a drop in church attendance and some church closures amid worsening religious conflict in the country.
An upsurge of attacks against Christian churches by the extremist group Boko Haram beginning late last year has led to ongoing sectarian violence between Muslim and Christian groups in northeast Nigeria.
Adding to the tumult, the country’s government recently eliminated energy subsidies, doubling the price of gasoline and inciting nationwide strikes and demonstrations. News reports indicate that Nigerians are living in fear of continuing unrest.
Meanwhile, Nigerian writer Chimamanda Ngozi Adichie called on religious leaders in her country to speak out against the violence, the Guardian reported last week.
“Christian leaders must continue to preach peace and togetherness so that Christians do not retaliate,” Adichie told the Guardian. “Muslim leaders must strongly and repeatedly condemn the violence against Christians and make it clear that Boko Haram does not represent Nigerian Islam,” she said.
The Adventist Church in the country has devoted recent days to fasting and prayer for the ongoing situation. Church administration in the country is encouraging membership to work in small groups and avoid large public religious gatherings. Open air evangelism efforts have been put on hold due to a curfew and the fragile security situation, church officials said.
According to a report by Northeast Nigeria Conference President Bindas Stephen Haruna, the Adventist Church there has not suffered property damage or loss of life. However, some individual members have had their property looted or burned.
“The situation in Northern Nigeria shows how a lack of religious freedom can affect the life of churches, and why we must promote and strongly defend this essential freedom before it is too late,” said John Graz, director for the Adventist world church’s Public Affairs and Religious Liberty.
Church attendance in northeast Nigeria has dropped drastically, leading to church closures in some regions where most members are traveling business people who have returned to their homes. In other churches, pastors have left their congregations for fear of being killed.
The situation has produced a wave of small group evangelism, church leaders said. As Nigerian Adventists funnel their efforts to spread the Adventist hope on a smaller scale, church officials in the country are soliciting the prayers and support of the world church family.
Ruling on Ministers: What the Supreme Court said & didn’t say | Oregon Faith Report
Excerpt: The U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, held that the “ministerial exception” bars a school teacher from bringing employment discrimination claims against her religious employer. The Court’s ruling clearly grants religious institutions the freedom to employ (and terminate) employees who act as ministers of their faith. Yet the Court’s decision does not clearly delineate how a religious organization (or their employees) determines who is and who is not a “minister.”
GOP to Consider Accommodating Saturday Sabbath Observers in Nevada Primaries
In the Republican primaries this year, there is a bright spot for religious freedom and diversity.
Amy Tarkanian, the state GOP chairwoman told The Associate Press that she has asked the Republican National Committee to weigh in on whether the religious voters should be accommodated by moving their voting to Saturday night, or moved forward to February 2.
Casino titan and Republican party supporter Sheldon Adelson has raised concerns about the scheduling of the February 4, 2012 caucus, which falls on Saturday, or the Sabbath as celebrated by orthodox Jews, Seventh-day Adventists, and members of a few other religious groups.
The proposed changes would allow religious voters who observe the seventh day as a holy day to vote on an alternate date while most Nevada Republicans would be requested to caucus from 9 a.m. to 3 p.m. on February 4.
If you support religious accomodation for Nevada GOP voters who observe the Sabbath on Saturday, contact the GOP with a message of thanks and support for the decision at http://www.nvgopcaucus.com/contact
Here is a sample message: ”Just wanted to thank you for considering accommodating members of the GOP whose religious beliefs require that they rest on Saturday.”
Update: Iranian Pastor Nadarkhani Continues to Refuse to Renounce Christian Beliefs
Despite promises of release in return for compromise, imprisoned Iranian Pastor Youcef Nadarkhani continues to refuse to renounce his Christian faith and accept Islam. Although he has been without any Bible or electronic access for over two years, and no contact with the outside world except for his wife and children, Nardarkhani continues to refuse to bow to pressure from his captors.
We will continue to monitor the progress of this case.
Modern Torture Techniques Emerged from Inquisition reports “The Atlantic”
In the January/February 2012 issue of The Atlantic, Cullen Murphy writes about the history of torture and relates it to current events.
Excerpt: ”The new science of interrogation is not, in fact, so new at all: “extraordinary rendition” and “enhanced interrogation” and “waterboarding” all spring from the practices of the medieval Roman Catholic Church. The distance, in both technique and ideology, between the Inquisition’s interrogation regime and 21st-century America’s is uncomfortably short–and provides a chilling harbinger of what can happen when moral certainty gets yoked to the machinery of torture.”
Read the full article at http://www.theatlantic.com/magazine/archive/2012/01/torturer-8217-s-apprentice/8838/
10th Circuit Rules Oklahoma Amendment Barring Islamic Law was Unnecessary and Discriminatory
OKLAHOMA –The 10th U.S. Circuit Court of Appeals has upheld a lower court’s ruling that blocked the implementation of the “Save Our State” amendment. The amendment, approved by 70 percent of Oklahoma voters in 2010, barred “Islamic law” in the state, even though there was no movement to impose sharia law in Oklahoma.
Judge Scott M. Matheson wrote on behalf of the unanimous court, “Appellants do not identify any actual problem the challenged amendment seeks to solve. Indeed, they admitted at the preliminary injunction hearing that they did not know of even a single instance where an Oklahoma court had applied Sharia law or used the legal precepts of other nations or cultures, let alone that such applications or uses has resulted in concrete problems in Okalahoma.” (Awad v. Ziriax).
Larson test a Gateway to Addressing Laws that Discriminate Between Religions
The 10th Circuit also applied the Larson test as a gateway to the Lemon test. While the Lemon test Lemon v. Kurtzman, 403 U.S. 602 (1971) applied to “laws affording uniform benefit to all religions, and not to provisions…that discriminate among religions,” in Larson v. Valente, 456 U.S. 228, 255 (1982), the Supreme Court ruled that if a law discriminated between religions, it could survive only if it is “closely fitted to the furtherance of any compelling interest asserted.”
In the case of California Christian Univ. v. Weaver, 534 F.3d 1245 (10th Cir. 2008), the 10th Circuit had described Larson, “The First Amendment mandates governmental neutrality between religion and religion …. The State may not adopt programs or practices…which aid or oppose any religion….. This prohibition is absolute.” Larson, 456 U.S. at 246.
Proponents of the Oklahoma amendment had argued that Larson was no longer good law because it is used infrequently, but the 10th Circuit ruled that the Supreme Court had never overturned it, and stated that this rarity “likely reflects that legislatures seldom pass laws that make ‘explicit and deliberate distinctions between different religious organizations’ as contemplated in Larson.”
In fact, the Supreme Court had referenced the rarity of this type of case in Church of the Lukimi Babalu Aye, Inc., v. City of Hileah, 508 U.S. 520 (1993)(“The principle that government may not enact laws that suppress religious belief or practice is so well understood that few violations are recorded in our opinions.”)
The Larson case facts were mild compared to the facts of Oklahoma amendment case. In the Larson case, a Minnesota statute imposed certain registration and reporting requirements on religious organizations that solicited more than 50 percent of their funds from non-members. No specific religious group was identified. But the Oklahoma statute specifically targeted Islam, and was defined in these terms: “Sharia Law is Islamic Law. It is based on two principle sources, the Koran and the teachings of Mohammed.” (SQ 755).
The Oklahoma amendment further instructed the courts to “uphold and adhere to … if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions.” The law did not prohibit Oklahoma courts from upholding laws of any other religion. The Oklahoma amendment also included language that Oklahoma “courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia law.”
Because of the lack of Sharia law in Oklahoma, the Court ruled that the harm that the amendment would remedy was “speculative at best and cannot support a compelling interest.” Further, the court said that there was no way to tell whether the amendment would solve any Sharia law problem since “one cannot try on a glove to see if it fits when the glove is missing.”
The Court further found that Muneer Awad, a Muslim who had filed the case, would suffer irreparable injury without the injunction. The court applied on the principle that “[w]hen an alleged constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary.” Kikumara v. Hurley, 242 F.3d 950. The 10th Circuit also noted that although states can legislate in certain areas (including ballot initiatives), “these granted powers are always subject to the limitation that they may not be exercised in a way that violates other specific provisions of the Constitution.”
The full decision is available here: http://www.ca10.uscourts.gov/opinions/10/10-6273.pdf
CONCLUSION: Certainly, if Islamic law had been imposed, it would be a violation of the Establishment Clause. But without that even being at issue, the Amendment became an excuse to marginalize a religious group.
Has Obama Waged a War on Religion? (NPR)
NPR’s Barbara Bradley Hagerty addresses this question. Here is an excerpt followed by a link to the article:
Americans’ religious liberties are under attack — or at least that’s what some conservatives say.
Newt Gingrich warns the U.S. is becoming a secular country, which would be a “nightmare.” Rick Santorum says there’s a clash between “man’s laws and God’s laws.” And in a campaign ad, Rick Perry decried what he called “Obama’s war on religion,” saying there is “something wrong in this country when gays can serve openly in the military but our kids can’t openly … pray in school.”
Of course, children can pray in school, but Perry is echoing a larger argument: that religious freedom is at risk. The story is much more complicated than either side makes out.
Read more and listen to the radio broadcast at http://www.npr.org/2012/01/08/144835720/has-obama-waged-a-war-on-religion
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