Strategic misremembering

There was a lot of celebration following the Supreme Court's decision in Hosanna-Tabor v. EEOC. For those who see themselves as defenders of religious liberty, the decision was a victory. A triumph. Religious liberty won, the "current Administration’s audacity" and "an unprecedented aggression" was "repudiated by a unanimous Supreme Court," and the "secularists" were taken to the woodshed.

So why are those who celebrate this victory systematically misrepresenting it?

In a prime example of this misrepresentation, Timothy George and Thomas G. Guarino summarize the case incorrectly at First Things. They write:

"Not long ago, the Equal Employment Opportunity Commission (EEOC) challenged the 'ministerial exemption' traditionally granted to churches so they may choose their ministers according to their own criteria, unhindered by state interference. The arguments advanced by the executive branch of government, in Hosanna-Tabor v. EEOC, would have significantly reduced those protections. Fortunately, the United States Supreme Court, insisting that religious freedom is the cornerstone of democracy, unanimously supported the traditional exemption."

In case you weren't counting, the brief summary used "traditional" twice. Once: the exemption that is "traditionally granted." Twice: the "traditional exemption."

The word has resonances, obviously, with a narrative of conservatism as defense of the "way things are," resistance to government overreach and liberals' and secularists' radical attempts to restructure society. Those on the Hosanna-Tabor side of Hosanna-Tabor v. EEOC, are, in this rendering, not just on the side of religious liberty, but also on the side of tradition. The side defending what conservative thinker Russell Kirk would have called custom, convention, continuity -- preservation of these three being the second of Kirk's conservative principle. Defending, that is to say, vis a vis the third Kirk principle, "things established by immemorial usage."

As neatly as this narrative works, though, it doesn't fit the case at hand. The exemption at issue in the case is not traditional. According to the unanimous opinion of the Supreme Court that found in favor of Hosanna-Tabor, this isn't an issue of tradition. The question is rather about the extent of an exemption, and understood, critically, as a question over the definition of "minister."

The question was whether the exemption that does have a legal precedent (in lower courts) should be understood to also include the specific, unusual kind of exemption from discrimination law that was claimed by Hosanna-Tabor, a Lutheran school that fired a teacher and rescinded her "calling" after she got sick.

Chief Justice John Roberts wrote the unanimous decision. That decision says: "Until today, we have not had occasion to consider whether this freedom of a religious organization to select its ministers is implicated by a suit alleging discrimination in employment."

As Roberts understands the issues of the Supreme Court decision, it's not a matter of upholding tradition. It's not -- contra First Things -- a case of rejecting a strange new governmental imposition of rules that ignore the freedom of religious exercise, citing precedent and being done with it. Rather, as Roberts puts it, it was a matter of considering the constitutionality of one kind of use of the exemption that has never been considered before.

Thus: a new thing.

Lyle Dennison, a journalist who has covered the Supreme Court for 54 years, reported that what the court did, in this decision, it did for the first time.

He wrote, "the Supreme Court on Wednesday unanimously gave its blessing -- for the first time -- to a 'ministerial exception' to federal, state, and local laws against virtually all forms of discrimination on the job."

And, "The Court, as it acknowledged Wednesday ... has never recognized an explicit 'ministerial exception' to anti-discrimination laws at any level."

Again, it's not about tradition and upholding tradition. So why represent it that way?

If you read John Roberts' decision, which is easy enough to do, it's clear that there were three arguments in the case, all of which came down to the issue of what should define a "minister" for the ministerial exemptions to equal employment opportunity law.

In the first argument, Roberts writes that,

"We agree that there is such a ministerial exception. The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision."

The fact that the court ruled that there is such an exemption as the the ministerial exemption is important, but the more significant fact to note, here, is how that position eligible for the exemption is being defined. It's being defined by the religious group itself. There's no objective standard, dictionary definition, or legal requirements for a minister. Religious groups decide and define for themselves.

In the second argument, where Roberts turns specifically to the case of Hosanna-Tabor firing a teacher, the issue is the same. It's the question of definition, not tradition or traditional exemptions. Roberts writes that the teacher in the case was a minister because she was "held ... out as a minister," by the church, "with a role distinct from that of most of its members." He writes that, further, the teacher "held herself out as a minister of the Church." Roberts adds that there was a process she had to go through and additional training she had to undertake to get the title, "minister," and that in that capacity she did serve "important religious functions" for the church.

In the third argument, Roberts responds to those arguing against Hosanna-Tabor. He writes why the EEOC is wrong,and its argument has to be rejected. Critically, he doesn't say they're wrong because they think the government has the right to interfere with religious groups' internal decisions about who will minister. Contrary to those who supposedly celebrate this decision, the decision isn't about state interference, but the definition of minister, according to Roberts. He writes that the EEOC was

"contending that any ministerial exception 'should be limited to those employees who perform exclusively religious functions.' We cannot accept that view. Indeed, we are unsure whether any such employees exist. The heads of congregations themselves often have a mix of duties, including secular ones such as helping to manage the congregation's finances, supervising purely secular personnel, and overseeing the upkeep of facilities."

In Dennitson's gloss on this, he writes that, essentially, employees are not protected by anti-discrimination laws or employment laws if they work for a religious organization that defines them as ministers. And "the employee could be anyone from the congregational leader, on down to any worker considered to be advancing the religious mission" by the religious organization, according to the religious organization's internal criterion.

Any Supreme Court ruling of course works on several different levels, in different spheres. One is the legal, how the ruling is understood by judges and lawyers in all the federal courts, how it shapes future decisions of the EEOC and lawmakers, etc. Another one, though, is how it's understood culturally.

It seems to me that, culturally, this case is consistently represented as something it's not. The court's decision is being misrepresented by those who like it and celebrate it. Though the decision really only did come down a short time ago, the memory of it seems to have gotten kind of turned around.

The misremembering seems like its in service of a larger narrative. The question is, is it strategic?

Read More

Obama's blasphemy law

Ruling in favor of Westboro Baptist Church, last year, Supreme Court Chief Justice John Roberts wrote that the church members' very offensive speech was still protected by the First Amendment's guarantee of freedom of speech. Even though that speech was offensive, and even though it was outside a U.S. soldier's funeral.

Roberts wrote, "The fact that Westboro spoke in connection with a funeral ... cannot by itself transform the nature of Westboro’s speech."

Those opposing the church's protests -- which are famous for provocative slogans such as "God Hates Fags," "God Hates America," "Pray for More Dead Soldiers," and "You Will Eat Your Babies" -- had argued that, specifically because these signs were outside a funeral, they were different than if they'd been elsewhere.

President Barack Obama endorsed that argument that funerals are different this month, in a statement he made as he signed HR 1627 into law. The law -- sponsored by Republican congressmen from Florida, Ohio, Colorado and Tennessee -- limits just a little bit more Westboro Baptist's ability to protest America, declare God's condemnations and generally be provocative in the exercise of their religion. Obama supported this limiting of speech, he said, because of a "sacred duty." Where the lawyers in the Westboro court case and Samuel Alito, the one justice who dissented from the Supreme Court ruling, argued this sort of speech is different because at a funeral it's more hurtful and harmful, Obama instead argued this speech is wrong because it is blasphemous.

Blasphemous not against God, per se, but against a sense of secular sacredness. Against that which is holy in what has been called America's civil religion.

 The relevant portion of the bill reads:

"PROHIBITION.—For any funeral of a member or former member of the Armed Forces .... it shall be unlawful for any person to engage in an activity during the period beginning 120 minutes before and ending 120 minutes after such funeral, any part of which activity—

(1)(A) takes place within the boundaries of the location of such funeral or takes place within 300 feet of the point of the intersection between—

(i) the boundary of the location of such funeral; and (ii) a road, pathway, or other route of ingress to or egress from the location of such funeral;

(B) and includes any individual willfully making or assisting in the making of any noise or diversion—

(i) that is not part of such funeral and that disturbs or tends to disturb the peace or good order of such funeral; and (ii) with the intent of disturbing the peace or good order of such funeral."

President Obama on Aug. 6, the day he signed HR 1627.

Obama said in his signing statement:

"I think all Americans feel we have a moral, sacred duty towards our men and women in uniform.  They protect our freedom, and it’s our obligation to do right by them.  This bill takes another important step in fulfilling that commitment."

Highlighting this specific section of the 45-page law that seeks to restrain the Westboro Baptist protests (or others like it), he said:

"I am very pleased to be signing this bill into law.  The graves of our veterans are hallowed ground.  And obviously we all defend our Constitution and the First Amendment and free speech, but we also believe that when men and women die in the service of their country and are laid to rest, it should be done with the utmost honor and respect."

The argument here is one of sacred time and sacred space, which ought not be defiled.

For Roberts, the funeral changes nothing. Speech on "broad issues of interest to society at large" is the same as it was two hours before or after, the same 100 feet away as it is 300. Space and time remain secular; nothing is transformed by the fact of the funeral. For Obama, on the other hand, there is a transformation. A sanctification. The time around the funeral of a soldier and the space around the funeral become "hollowed."

As Robert Bellah said, famously, in 1967, "American civil religion is still very much alive."

It's in this sense of "American civil religion" that Obama's invocation of a sense of sacredness is perhaps best understood. Where there are other arguments for limiting this sort of speech, he chose this one. "Civil religion" is a tricky term. Not least because Bellah -- who hasn't himself been in love with the term he popularized in this context -- offered descriptions that were somewhat unwieldy. The basic idea, though, involves exactly this sort of argument. Civil religion involves public rhetoric that appeals to a transcendent reality that's not related to any revealed religion, but to a sacred that's sensed as revealed in America and American history. That "transcendence" is understood as immanent to all Americans, making it secular at the same time it's decidedly not. It's supposed to be easily and immediately recognizable to Americans, and also act as the ultimate ground of an argument, justification for a policy.

Bellah says this civil religion is about the "universal and transcendent religious reality as seen in or, one could almost say, as revealed through the experience of the American people."

Classic examples of this include the rhetoric of Martin Luther King Jr. and Abraham Lincoln, and also such everyday occurrences as invocations of the "Founding Fathers." Every president in recent memory has made this appeal to the transcendent truth understood and accepted by Americans to be revealed in America, to the point it's hard to imagine a president not doing this. It's like American exceptionalism plus.

The important point is that the appeal can be contrasted to an appeal to the common welfare. Most arguments in the public sphere are grounded finally in something being generally, socially good. A proposal is understood as justified to the extend it's beneficial for the general public. When there is a dispute about policy in modern democracies, be taxes or abortion or whatever, the assumption on all sides is that each side respectively believes itself to be right, and there's agreement on what "right" means and what it would mean to be that. That is, it's accepted without question that policies are to be judged by their results in the lives of the people. This is the so-called "naked" public square, where the grounds for arguing for that which is good are strictly secular.

This can be contrasted to a directly religious argument, where a given religion and, importantly, that religion's authority, serves as ground for argument. I.e., "because the Bible says," and arguments of that nature. These grounds don't offer themselves up to general evaluation and deliberation, but are understood as fixed and final, "absolute," affirmed not by the demos of democracy, but by the (holy) ground itself. Such grounds are not even rightly considered res publica, in that they're essentially inaccessible to the public except for purposes of invocation. 

What Obama is doing here, in making an appeal to the sacred and the hallowed, but a "sacred" and a "hallowed" accessible and immanent to (ostensibly) all Americans regardless of creed, is thus neither secular nor, in an important way, not secular.

A child from Westboro Baptist protests at a funeral.

The argument isn't that Westboro Baptist's exercise of speech is somehow bad for the American people (though that argument could be made). It's not that the social costs of allowing their offensive behavior is so egregious it's necessary to curtail the right of Free Speech at least a little. But it's also not appeal to special revelation, some fixed truth separate from the general experience of the American people. It's supposed to be something that all Americans know and affirm instinctively, and yet is also absolute in the sense it's affirmed as good and true entirely apart from the general welfare, and affirmed as essentially not needing any affirmation.

That is to say, the argument underlying the President's decision to sign into law a limitation of the First Amendment's guarantee of the freedom of speech is that the space and time around a soldier's funeral are fundamentally different from other spaces and times. They're transformed. And holy. But holy in this very peculiar way, where the secular is transcendent, the transcendent secular.

And protesting at a funeral, instead of an exercise of a fundamental American right, is blasphemous, an offense against that special "hallowedness" revealed in America.

One can almost hear Justice Roberts repeating that "The fact that Westboro spoke in connection with a funeral ... cannot by itself transform the nature of Westboro’s speech."

There's really no way that I know that one can argue about whether it does or doesn't. As with all matters of revelation, one either accepts that soldiers' funerals are self-evidently different, or one doesn't. Westboro's placards either appear as simple speech, offensive in the normal way, or as more than that, as a violation of something sacred.

Read More