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Does more freedom mean less protection?

Does more freedom mean less protection?

When conflicting human rights collide, which should take precedence? 

This is one of the most fraught questions in the West today, with employment law often serving on its frontline. A recent, unanimous ruling by the US Supreme Court is being heralded as a major step forward in clarifying some of the most key issues.

In 2004, Cheryl Perich, a teacher at a Lutheran Church and Elementary school in Michigan, went on leave suffering from a form of narcolepsy, a disorder characterized by sudden and uncontrollable, though often brief, attacks of deep sleep.

When she was ready to return, she found that the church intended to offer what it called a “peaceful release” from her call. Ms Perich refused to resign and threatened to sue the organisation if she was fired. The church then said that her threat to sue constituted “insubordination and disruptive behavior”, and fired her.

This would normally have been in direct contravention of the Americans with Disabilities Act, but this Act applies to all employees except, importantly, those who are employed as religious ministers; hence the church’s action.

Perich's lawyers, however, argued that she wasn’t enough of a ‘minster’ to fall under this ministerial exception and so her dismissal was unlawful. The Sixth Circuit Court of Appeals agreed.

The case didn’t stop there, however, but moved, eventually, to the Supreme Court, which thought differently. In his decision (the full text of which can be read here) Chief Justice John G. Roberts Jr. wrote:

“The interest of society in the enforcement of employment discrimination statutes is undoubtedly important but so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission.”

There will doubtless be much discussion around whether or not Ms Perich was acting as a minister when only 45 minutes of her average 7-hour working day was devoted to religious duties. It also seems likely that further clarification will be sought on who can be employed as a minister, thereby effectively bypassing discrimination laws.

Such considerations aside, however, the decision is significant. In the words of Kim Colby, senior counsel for the Christian Legal Society’s Center for Law and Religious Freedom:

“This decision should help religious groups that are being charged with ‘religious discrimination’ when they require their leaders to agree with their statement of faith … In a conflict between nondiscrimination laws and religious liberty, religious liberty prevailed. Nondiscrimination laws serve vital and good purposes in our society. But they have been increasingly misused to harm religious liberty in a number of contexts over the past decade.”

Some are calling this the most important Supreme Court Ruling on religion in 20 years and though it has some features which are unique to the USA (the Chief Justice referred specifically to provisions in the First Amendment to the US Constitution), its implications are sure to be weighed and considered on this side of the Atlantic. Would European Courts be as favourable to the exercise of religion?

Although many may rejoice at the freedom granted by the ruling to religious organisations, it is by no means clear that the ruling was the right one.

Although many of us, myself included, have had good experiences of leadership in religious organisations, it would be foolish to assume that every religious employer was committed to excellence and high moral standards in his or her management. Personality clashes can arise, expedience can overpower ethics and sometimes people can just make bad decisions. A ruling like this can mean that certain groups of people lose the protection of the law, and are abandoned to the mercy of their employers.

It is the cultural norm – perhaps even the cultural requirement – in the West to demand our rights and seek to shape the law around what we perceive to be our own good. It behoves us to remember, though, that greater freedom will often mean less protection.

Jennie Pollock is Communications Editor for Newfrontiers UK.

This article is adapted from the post Landmark Ruling on Religious Liberty on the Newfrontiers theology blog.

Posted 17 January 2012

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