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
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.”
Film Review: “One Nation Under God” (2011): Misinterpreted facts and frightening conclusions
By Jason Hines, Esq. -
Yesterday was a premiere event for the Religious Right movement. In churches, homes, and other venues around the country, conservative Christians watched the premiere of “One Nation Under God,” a DVD created by the group United in Purpose, headed by Bill Dallas. (You can find out more general information about the DVD at the One Nation Under God website.) We attended a showing that was being held at the Old West Cowboy Church in Robinson, TX. Yes it was exactly as it sounds. One man showed up in spurs and chaps on a horse. The pastor of the church, who is also a charter member of the Waco Tea Party, welcomed us and talked about how it was important for Christians to “repossess America.” He told us that about 2,500 different venues would be premiering the DVD and they hoped to have 50,000 showings before the 2012 election.
There were several speakers on the DVD, and each of them had two responsibilities. First, to make sure that they established the idea that America is a Christian nation that that Judeo-Christian principles are to be inculcated into government. Second, the goal was to convince Christians that they should be politically involved, vote their values and encourage other Christians that they should do the same. Several popular conservatives are recruited to help make these points. Despite the multiplicity of voices, there are some problematic themes that run throughout the presentations. Each of the presenters engages in some element of either misrepresentation or misinterpretation of facts, specious logic, or just plain bad theology.
The misinterpretation of facts was somewhat expected. Most of it was conservative evangelical talking points. Both David Barton and Newt Gingrich made mention of the fact that the Supreme Court has taken prayer out of schools. Of course this is not true. Engel v. Vitale (1963) did not take prayer out of schools. Instead it ruled that teacher led school prayer is unconstitutional. The Court has since ruled that sectarian prayers at school events are unconstitutional. But the right of the individual to pray or lead other like-minded individuals in prayer is still allowed. To obfuscate this point is to pull the wool over people’s eyes. Barton also misinterprets the US Constitution. He says at one point that Art. VII of the Constitution incorporates the Declaration of Independence. Art. VII actually says, “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.” I am sure Mr. Barton has a reason for saying that a one sentence article of the Constitution that makes no mention of the Declaration of Independence somehow incorporates that document, but he gave no further explanation.
Gingrich misinterpreted the historical understanding of Thomas Jefferson. Gingrich said that historians say that Jefferson didn’t believe in God, except that no reputable historian would say that. The truth is that Jefferson was a Deist who believed in the concept of God, but not in the supernatural elements of Christianity. People like Barton, Gingrich, Bill Dallas, and others have a historical problem. The US Constitution makes no mention of God or Christianity, and has some explicit anti-religious statements (i.e., the Establishment Clause and the prohibition on religious tests for holding office). Therefore, in order to make their argument, they have to connect the Declaration of Independence to the Constitution, and that’s a hard sell unless you’re willing to stretch the facts.
The speakers on the One Nation Under God DVD also engage in some interesting and fallacious logic. Most of it is found in the assumptions that they make. Barton for example, makes two very dangerous assumptions. First, he assumes that nothing has changed in the 235 years since the Declaration of Independence. So the vastly different context of today has no effect on how he views what our nation should do and what the Constitution should allow. The great strength of the Constitution in my opinion is that the Founders were smart enough to build in flexibility so that the document could adjust to fit the times. Barton, Gingrich, Dobson, Rodriguez, and the other speakers on this DVD seek to bring America back to an era where it was more homogenous. Gingrich in fact quoted a statistic that 80% of Americans believe in “classical America.” I do not know what that means, but that description is scary to me. Dr. Timothy Johnson, the head of the Frederick Douglass Foundation, an African-American conservative group, also used specious logic in order to attack liberal Christians. Dr. Johnson said that he did not understand how people could say they are pro-life themselves and then vote for pro-choice candidates. Dr. Johnson seems not to be able to understand that there are some people who believe in their personal morality, and yet do not want to impose that morality on others.
Mr. Barton makes the same illogical leap in his discussion of Christians in the voting booth. He assumes that all Christians feel the same way he does, and that if those Christians vote pro-choice or pro- gay marriage, then they are not voting their values. This type of rhetoric is disingenuous and does not help to win people to their cause.
Finally, there are just some shocking cases of bad theology. David Barton cites several texts that he claims stand for certain propositions. We checked each of the ones we could manage to write down, and all of them were misinterpreted. For example, Barton cites Is. 33:22 as support for the separation of powers. While that verse does mention the 3 branches of government (king, lawgiver, and judge) the verse says that the Lord is all those things. Therefore, a government that followed Isaiah’s words there would vest all those powers in one position, because that is what the Bible says in that verse. Reverend Samuel Rodriguez states that there is a biblical and moral imperative for Christians to vote a certain way, but cites no biblical support. Dr. James Dobson makes 2 egregious theological errors. When asked about whether Christians should be involved in politics, Dr. Dobson quotes Abraham Lincoln not the Bible. Dr. Dobson goes on to say that when a country forgets who they are, then they are destroyed. He implies that if America forgets their Christian heritage and begins to allow abortion and gay marriage then they will be destroyed. This statement is not just bad theology, but it is also offensive to every group of people who have been oppressed in the history of America. So God’s destruction will not fall because America enslaved Africans, destroyed their families, raped and killed them, but it will fall because of the unborn and gay people? America did not forget who they were when they were oppressing women or Asians or Catholics or any other group, but now is the time America is moving away from its Judeo-Christian principles. As with Gingrich’s statement about longing for a “classical America,” this statement bothered me. Dr. Dobson is using his theology to whitewash history, and to ignore the fact that America has never been the Christian nation that these people envision it to have been.
Dr. Dobson is using his theology to whitewash history, and to ignore the fact that America has never been the Christian nation that these people envision it to have been.
As I think about the events of the day and the content of the DVD, two final points jump out to me. One, Newt Gingrich said what the goal of this DVD really is. At one point he states that it is time for people of faith to take back power from the minority elite. That is the real issue. It is not truly about having this nation be Christian. It is not truly about feeling persecuted for their majority faith. Rather, this is about wanting to be in control of others. To compel people to follow their will (not even the will of God).
Two, my wife and I noticed something interesting as we sat amongst the members of the Old West Cowboy Church. The pastor provided note paper for us and encouraged us to take notes for our own edification. As we looked around room, we realized that we were the only people attempting to take detailed notes. Most people did not write anything down at all. Some only wrote down a sentence here or there. My wife and I were the only people who attempted to record all the major points being made by all the speakers. This lack of critical thought was the most appalling thing to me. These people were being sold on all kinds of historical, logical, and biblical inaccuracies, and they were more than willing to accept it without inspection.
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Jason Hines is Associate Editor for ReligiousLiberty.TV an independent religious liberty website. A Harvard Law graduate, Jason practiced commercial litigation in Philadelphia for five years and conducted seminars on religious liberty in his spare time. This gave him the opportunity to discuss issues of religious freedom with Adventists in churches all over the United States. In 2008, Jason decided to devote his life to work in religious liberty. To that end, he enrolled at the Seminary at Andrews University, where he is pursuing a Master’s Degree in Religion. He is also a PhD candidate in the Religion, Politics, and Society at the J.M. Dawson Institute for Church-State Studies at Baylor University. Jason blogs about religious liberty and other religious issues at thehinesight.blogspot.com
Religious leaders line up in support of Supreme Court case – The Courier-Journal
The U.S. Supreme Court will soon hear a case involving whether churches can “discriminate” when making employment decisions about employees who are not clergy.
EXCERPT:
[Many religious groups] support the right of religious groups to hire and fire teachers who could be construed as “ministers” on grounds that would be otherwise discriminatory, whether due to race, gender and disability or other reasons. The case could affect hundreds of thousands of teachers and other employees in faith-based schools and organizations.
Religious Liberty on North Dakota Ballot (Devils Lake Journal)
EXCERPT: A North Dakota constitutional amendment about religious freedom will be on the state ballot next year.
Secretary of State Al Jaeger says Wednesday that the initiative’s supporters got enough signatures to put the issue to a vote. It will be Measure 3 on the June primary election ballot. The proposed amendment says lawmakers may restrict religious behavior only if they have a compelling interest in doing so, and if the regulation is done in the least restrictive way possible.
OPINION: The Good Old Days? Not Quite
By Brent Buttler – In these days in which people’s rights seem up for grabs there is a tendency to wish we could go back to the good old days when people had more freedom to live as they chose to live. However, upon further research I have discovered that people’s freedoms have been eroding away for quite some time.
Some time ago I picked up a book at a Christian book store entitled The Rights of the People, a book on the subject of religious liberty written in the late nineteenth century and reprinted in 1998. As I have been making my way through it I have been impressed by the depth of thought of it’s author, Alonzo T. Jones.
The most recent chapter I have read is entitled “Religious Right Invaded” in which Jones explains how despite the tireless efforts of the founders of this country to separate religion from government (which he maps out in the previous chapter) that in such areas the nation has gone backwards. He went so far to state that there has been “a counter-revolution”. He stated that this counter-revolution was accomplished and consummated in 1892 by the U.S. Supreme Court in Church of the Holy Trinity v. United States, 143 U.S. 457 (1892).
As is often the case (no pun intended), this decision came into being as a result of a challenge to an existing law. In 1887 Congress passed a law that forbade any alien to come to the U.S. under contract to perform any kind of labor. The reason for this law was that many corporations were going to Europe and finding people to come here and work. The company would pay their way, and because of this they required the laborers to work for next to nothing. This was depreciating the amount Americans could get paid for their labor, so Congress passed a law stating:
“Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that from and after the passage of this act it shall be unlawful for any person, company, partnership, or corporation, in any manner whatsoever, to prepay the transportation, or in any way assist or encourage the importation or migration, of any alien or aliens, any foreigner or foreigners, into the United States, its territories, or the District of Columbia under contract or agreement, parol or special, express or implied, made previous to the importation or migration of such alien or aliens, foreigner or foreigners, to perform labor or service of any kind in the United States, its territories, or the District of Columbia.”
A problem arose when Trinity Church Corporation employed a preacher in England to come to the States and preach for them. This act was seen as a violation of the aforementioned law and the U.S District Attorney prosecuted the church. The U.S. Circuit Court decided that the church was guilty. Naturally, there was an appeal taken to the Supreme Court. The Supreme Court reversed the decision on the grounds that the term “laborer” or “laborer or service” was intended to refer to manual labor, not a professional service. All the Supreme Court had to do was reverse the decision on those grounds, but they went above and beyond what was necessary, and that is where all the troubles began.
The Supreme Court stated, “But, beyond all these matters, no purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. This is historically true.” Having made such a statement they then had to back it up, and by so doing started down a very slippery slope. For not only were the people of this nation “religious”, but they were also “Christian”. Jones stated in a somewhat satirical tone that the people therefore are now all Christians regardless of whether they were Jews or non-believers because the highest court in the land declared them so. He then states that the very absurdity of the suggestion only demonstrates that the court should have nothing to do with such manners. He continues by stating that people are not made religious by law, judicial decision, nor historical precedent, which brings us to the historical “support” the Supreme Court gave to show that the people of the U.S. are indeed a religious people.
Jones stated that the historical reasons given are at best suspect and at worst complete misinterpretations of the original statements. The first historical reasons given were from European nations (i.e. Spain and England). Jones points out that the Spanish rulers (Ferdinand & Isabella) who commissioned Columbus were in fact the same rulers who established the Spanish Inquisition. To say that the language of these rulers has the same meaning as the U.S. Constitution takes quite a bit of stretching of the imagination. The statements regarding the British monarchy would have quite a bit more weight if in fact the U.S. was still under British rule, but it most definitely is not subject to British sovereignty.
There are many other historical reasons given, and Jones takes time to refute them all, but this is beyond the scope of this post. I will however touch on the reason for which Jones saves his strongest language, the ruling declares that the United States Constitution reaffirms the thought that this nation is a religious nation. To this Jones states, “To say it is absurd is not enough, it is simply preposterous.” He goes on to write that there is another consideration that magnifies that one, namely the fact that the court leaves out Thomas Jefferson, James Madison, and George Washington from the place where they rightly belong, and drags “Ferdinand, Isabella and Elizabeth into the place where they do not and cannot by any shadow of right belong[.]”
There is much more but Jones sums the entire ruling in this way.
“The United States . . . was turned from the ‘new order of things’ to which it was committed by our revolutionary fathers, and to which it stands pledged by the great seal of the government itself, and was thrown into the evil tide of the old order of things. And thus this enlightened nation, the example and glory of the world, was caused to assume the place and the prerogatives of the governments of the Middle Ages in embodying in law the dogmas and definitions of the theologians, and executing the arbitrary and despotic will of the church.”
So while it is nice to wistfully look back at times gone by and wish that things were like they used to be, it is important to realize that even in the good old days the situation was not as rosy as we thought it was.
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Brent Buttler, who earned his Masters of Divinity degree at Andrews University, originally published this essay on his blog, Educational Litter. Buttler describes himself as “a mid-western transplant in a western state who is getting used to winters without snow, and the fact that practically everything is east of where I live.”
Baptist Joint Committee for Religious Liberty – Supreme Court to Hear Religious Hiring Case
This case involving the ministerial exemotion from employment discrimination statutes could have huge implications for churches and denominations.
Advanced Citizenship: The Cost of Free Speech in America
By Jason Hines – One of my favorite movies is “The American President,” (1995) starring Michael Douglas and Annette Bening. It is the story of a widowed president who falls in love with a liberal lobbyist. He struggles to navigate his relationship with her while also doing his job as the President. It’s a good movie, you should see it if you haven’t. In the final speech of the movie, President Shepherd (Douglas), who has been maligned politically because of his relationship with the lobbyist Sydney Ellen Wade (Bening), finally stands up for himself at an impromptu press conference. In the middle of his speech he says
Everybody knows America isn’t easy. America is advanced citizenship. You gotta
want it bad, ’cause it’s gonna put up a fight. It’s gonna say, “You want free
speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating, at the top of his lungs, that which you would spend a lifetime opposing at the top of yours. You want to claim this land
as the land of the free…” Show me that, defend that, celebrate that in your
classrooms. Then you can stand up and sing about the land of the free.
This week, the Westboro Baptist Church proved that we are in a nation of advanced citizenship. This church, made up of largely one family, has received media attention for protesting at the funerals of dead soldiers. They believe that the deaths of these soldiers are God’s punishment for America’s tolerance of homosexuality. The father of one of the dead soldiers then sued the church in response to their protests for intentional infliction of emotional distress. The question at issue was simple – does the right to free speech protect those who would intrude and disrupt at the moment of a family’s grief, and should the Court protect speech that is vile and unpopular. In an 8-1 decision, the Court ruled that the free speech rights of the church deserve to be protected, even if the speech itself is repugnant. Chief Justice John Roberts, who wrote the decision for the Court restated what has been fairly well settled law when it comes to free speech. Even when the speech is repulsive, the response is not to punish the speaker. The history of America has been clear – the government will not stifle public debate by deciding whose speech is acceptable and whose is unacceptable.
This is especially germane because the speakers here are a religious group. The Court’s defense of this type of religious speech is a victory for every religious institution. If the Court will protect Westboro, then surely the Court is willing to protect all of us. The other lesson to draw from this decision is that, contrary to popular belief, the public square is not being closed to religious groups. There has been some concern (occasionally legitimate and at times not so legitimate) that if certain types of speech and speech against certain groups in society is labeled hate speech, then churches will not have the latitude to speak to what they deem to be the moral ills of society. The Court showed in its decision this week that this will not be the case. Churches of all denominational stripes will still have free speech. They will still be able to speak to the problems that they see in society. And as always, we will continue to have the freedom to listen, ignore, or speak against what churches say. In a nation built on the principles of freedom and equality, this is the way it should be.
I also think that citizenship in the kingdom of God (both here and in Heaven itself) will also be advanced citizenship. Heaven will be filled with people who believe differently from us (whoever “us” maybe). There is so much division amongst religions and to believe that only one particular stripe of Christianity (or any other religion for that matter) will be the only group to inhabit Heaven is just not sustainable. (See John 10:16) It is also unsustainable to think that you will get to Heaven and just automatically be able to put aside the differences that separated us here. Maybe we should practice respecting the beliefs and traditions of others while on Earth.
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Jason Hines writes from Baylor University in Waco, Texas where he is completing his doctorate in church-state studies.
Ten Commandments’ return to Va. school district depends on legal battle’s outcome
http://www.washingtonpost.com/wp-dyn/content/article/2011/02/23/AR2011022306539.html
Analysis: Obama Administration Declines to Defend Part of the Defense of Marriage Act
By Jason Hines – Today Attorney General Eric Holder and the Obama Administration announced that the Justice Department will no longer attempt to defend Section 3 of the Defense of Marriage Act (DOMA) (which defines “marriage” as between one man and one woman and “spouse” as a member of the opposite sex) from challenges in states that recognize gay marriage. This is a decided victory for those who support the cause of civil same-sex marriage. Previously, the federal government has defended DOMA, so this seeming reversal of position came as somewhat of a surprise. It is important at this juncture to wade through the legal arguments and determine the circumstances and legal reasons that led to the Executive Branch’s current position and what this means going forward.
Currently there are two cases in the 2nd Circuit which are challenging the constitutionality of Section 3 of DOMA. One case is from New York (Windsor v. U.S.) and the other is from Connecticut (Pederson v. OPM). It is important to note that gay marriage is legal in Connecticut and is recognized, but not performed, in New York. The DOJ has defended DOMA in jurisdictions where the courts have decided that government only needs to have a rational basis justification in order to enact laws that discriminate against homosexuals. In short, a rational basis justification means that the government only needs to formulate a plausibly reasonable justification for a particular. Most laws are held constitutional under this standard. These cases are different, however, because the 2nd Circuit has made no decision on whether homosexuals are a protected group, which would require some heightened scrutiny on the part of the Court in judging whether discriminatory laws are permissible against gays. These cases would require the DOJ to formulate their own beliefs about what standard that should be used when it is found that a law discriminates against homosexuals, whether to use rational basis, as some jurisdictions have, or to use heightened scrutiny. Heightened scrutiny has been defined by the Court as “a tenable justification describ[ing] actual state purposes, not rationalizations for actions in fact differently grounded.” United States v. Virginia , 518 U.S. 515, 535-36 (1996). “The justification must be genuine, not hypothesized or invented post hoc in response to litigation.” Id. at 533. Based on its analysis, the DOJ believes that laws that discriminate against homosexuals should receive heightened scrutiny.
The DOJ came to this conclusion after its own analysis of the question, based on the standard for heightened scrutiny provided by the Supreme Court. While the Supreme Court has made no definitively ruling on what level of scrutiny should be accorded laws pertaining to homosexuals, the DOJ believes that heightened scrutiny is the right answer. There are four questions that must be considered for heightened scrutiny to apply: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” See Bowen v. Gilliard, 483 U.S. 587, 602-03 (1987); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 441-42 (1985) (quoted from Attorney General Eric Holder’s letter to Speaker of the House John Boehner). The DOJ believes that homosexuals fit all these criteria. First, homosexuals certainly have suffered a history of discrimination. Second, the DOJ admits that there are no visible characteristics, but it cites social science research that supports the finding that homosexuality is immutable and cites to the recent debate on Don’t Ask Don’t Tell to support the proposition that the Executive Branch believes that people should not have to hide their sexual orientation. Third, the Executive Branch believes that homosexuals are more or less politically powerless despite some of the gains that gay rights activists have made lately. As a comparable example, the DOJ cites to the fact that women were deemed politically powerless after the passing of the 19th Amendment and Title VII. Finally, the government supports the proposition that being gay does inhibit anyone’s ability to contribute to society.
In light of these factors, the DOJ feels that they can no longer defend DOMA as it applies to the states that legally recognize gay marriage. The DOJ will continue to defend DOMA in cases that apply to the Federal government. It is clear that the Obama administration is construing this as a federalism issue, where the states have the right to determine what a marriage is without the interference of the federal government. However, this is a victory for gay rights activists, as the Executive Branch has essentially said that it will stay out of the fray at the state level for now. Despite all this, there are still no definitive answers to the question of whether homosexuals have a right to civil secular marriage (or even at what level of scrutiny laws against them should be judged). That answer will probably have to wait until the Supreme Court decides the matter in the future.
Jason Hines is an attorney and doctoral candidate at the J.M. Dawson Institute of Church-State Studies at Baylor University.
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