While churches have long enjoyed the ministerial exception rule that allows them to ignore the usual anti-discrimination laws in regards to employment, certain churches have expanded that exception beyond the ministry. For example, Emily Herx was fired from a Roman Catholic school and she claims this was because she used in vitro fertilization(IVF). In response to what she regarded as discrimination, she brought a law suit against the church.
The Roman Catholic Church officially rejects IVF and the church has contended that the sort of lawsuit filed by Herx is a challenge to its right “to make religious based decisions consistent with its religious standards on an impartial basis.” In January of 2012 the United States Supreme Court ruled that religious employers can fire religious workers on the basis of ministerial exception and the employer cannot be sued for discrimination. Rather unfortunately, the Supreme Court neglected to define “religious worker” and this has provided religious employers with considerable cover when they fire employees.
One important concern raised by this sort of situation is whether or not the ministerial exception is morally acceptable or not. A second point of concern is (on the assumption the exception is acceptable) providing an adequate definition of “religious worker.”
On the face of it, the ministerial exception does seem morally unacceptable. After all, it essentially allows religious institutions to discriminate and to “justify” this by appealing to their dogma. This seems rather problematic. After all, if a secular racist or sexist institution claimed a special exemption because of its dogma or ideology, that would be rightfully regarded as absurd. After all, making discrimination part of the dogma hardly serves to transform it from discrimination to something acceptable.
The obvious counter is that religious institutions are relevantly different from all other institutions such that religiously based discrimination is morally acceptable. This, of course, seems rather absurd. After all, if I claim that my sexism or racism comes from God, that hardly seems to magically transform it to something that is acceptable. Naturally, if it can be decisively proven that God exists, that what God commands is good and that God commands us to discriminate in certain ways, then that would be another matter. However, this seems rather unlikely to happen.
Another obvious counter is that religious freedom grants members of religious institutions the moral right to practice their faith. Because of specific doctrines, certain faiths have practices that blatantly violate the anti-discrimination laws, but these must be tolerated on the basis of said freedom.
I am willing to concede that religious liberty, like other liberties, can provide a legitimate basis for exceptions. To use an analogy, people who are conscientious objectors on religious grounds can justly be granted an exemption to military service (or to using weapons if they still wish to serve). That said, there are obvious exceptions to this. For example, the worshipers of Kali used to engage in murder as part of their faith. However, it would seem to be rather wrong to allow the faithful of Kali to murder with impunity. As another example, some religions allow for polygamy, but the United States has not granted this liberty to people of those faiths (or sects if one prefers). If the state can legitimately forbid religious exemptions for murder or polygamy, it seems reasonable that the state can also forbid exemptions for discrimination. After all, while discrimination is not as bad a murder, it still seems immoral (and is clearly illegal) and thus it seems reasonable to forbid discrimination even if a faith insists on practicing discrimination.
I would also argue that when religious institutions go beyond the ministry and enter into the realms of education, hospitals, and other businesses then they are obligated to follow the rules of those areas. A church can hardly accuse the state of trying to violate the separation of church and state when the church insists on entering areas that are legitimately regulated by the state, such as education, hospitals and business. By entering into those areas, the church has voluntarily placed itself under the same rules as the other players-to claim a special exemption because they have some connection to religion would be rather unfair and also absurd. To use an analogy, imagine if an athlete tried to get religious exemptions to the core rules of his or her sport. Obviously that would be absurd-if s/he is competing in the sport, s/he must follow the same rules as everyone else and religion is not a relevant factor in this. If s/he cannot abide by the core rules of the sport, then s/he should not compete. After all, there is no special obligation to grant exemptions to people just because they happen to disagree with the rules.
A final response in defense of religious institutions is to make a utilitarian argument, namely that more harm would be done by compelling religious employers to follow the same laws as everyone else than would be done by compelling them to follow these laws. If this can be shown, then this exception would be acceptable. I am inclined to think that this would actually do more harm than good, but this is somewhat of an empirical matter and can be tested.
In my next post I will address the matter of the legitimate extent of the exception.