Legislators must go crazy, whenever they enter the arena of church-state law, trying to write laws that protect the innocent without creating legal sanctuaries in which the demons of fraud and corruption have even more room to dance. After all, the First Amendment makes it clear that the government is supposed to give religious expression and practice every benefit of almost every doubt.
What do I mean? Let's say that you have, as Exhibit A, Father Frank of the Roman Catholic Church and your goal is to protect his rights as a clergyman. Don't focus on issues of taxes and property at the moment. Let's just say, to consider an issue that has played a major role in church-state law, that you want to protect his right to hear the confessions of undocumented workers without having to worry about government officials bugging him about what he's hearing.
Now, try to write a law that protects all the rights of Father Frank, yet somehow allows government officials to crack down on the shady activities of our Exhibit B. This is Father Not-So-Frank, who, via a mail-order-bishop, has become a priest in a tiny splinter church that insists it is just as valid as the Vatican. Let's call it the Eastern Old Catholic Liberal Orthodox Communion of the Utrecht Empire or something like that.
Trust me, these churches are out there.
Our Father Not-So-Frank is a full-time mail man and, next month, he'll compete his advanced online training and become a bishop. Then he'll start cashing checks and ordaining priests of his own, at his split-level cathedral and parsonage in suburban Oklahoma City.
Now, how does the U.S. Congress pass a law against what this man is doing without hurting the "real" -- sorry for the scare quotes -- priest? By the way, while I am at it, do counselors in the Church of Scientology have the same rights? What if they refuse to discuss the dollars and cents of their work?
You probably know where I am going with this. I'm working my way around to Part II of reporter Diana B. Henriques' massive In God's Name investigative series in the New York Times. This is the installment titled "Where Faith Abides, Employees Have Few Rights."
Here is the big news in this story, the good news and the bad news. The good news is that religious groups are free to pick their own leaders and they have the legal right to ordain, hire and fire people based on whether they believe the doctrines of the particular religious group doing the ordaining, hiring and firing. What's the bad news? It's pretty much the same as the good news, because this opens the door for Father Not-So-Frank as well as allowing Father Frank and his superiors to do their thing with as little government interference as possible.
The bottom line: There is no way to force religious groups to be democracies.
The pope does not have to be an equal opportunity employer. Neither do all those independent Baptist churches that dot the street corners in Everytown, Texas. Neither does the InterVarsity Christian Fellowship at Harvard University. It is OK if your local Orthodox synagogue refuses to hire a Assemblies of God pastor or, for that matter, a Reform rabbi. The same thing goes for the people who teach in these religious bodies' schools, answer their telephones and do all kinds of other tasks in these voluntary religious associations.
I am pretty sure that Henriques knows this. It is not as clear that she realizes that it is hard to protect this constitutional right for the angels without making life easier for the people that some of us consider demons. She does know about the laws that are on the books:
The most sweeping of these judicial protections ... is called the ministerial exception. Judges have been applying this exception, sometimes called the church autonomy doctrine, to religious employment disputes for more than 100 years. As a rule, state and federal judges will handle any lawsuit that is filed in the right place in an appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith. Citing the protections of the First Amendment, they have ruled with great consistency that congregations cannot fully express their faith and exercise their religious freedom unless they are free to select their own spiritual leaders without any interference from government agencies or second-guessing by the courts.
To do otherwise would be an intolerable government intrusion into employment relationships that courts have called "the lifeblood" of religious life and the bedrock of religious liberty, explained Edward R. McNicholas, co-chairman of the national religious institutions practice in the Washington, D.C., office of Sidley Austin, a law firm with some of the country's largest religious organizations among its clients.
Yes, judges and legislators are not supposed to get entangled in doctrine, which makes it pretty easy for some religious leaders to wave the doctrine flag and do all kinds of mean and even sinful things.
So what can the state do? Long ago, when I was doing my graduate work in church-state studies, I remember something one of my professors said. When push comes to shove and it comes time for the government to try to decide what is good religion and what is fake religion, just about the only things the cops can probe are profit, fraud and threat to life and safety. Other than that, religious groups are pretty much free to do their things.
I could go on and on, but let me make two final points.
Here is another crucial statement in this part of the Times package:
Religious employers have long been shielded from all complaints of religious discrimination by an exemption that was built into the Civil Rights Act of 1964 and expanded in 1972. That historic exemption allows them to give preference in hiring to candidates who share their faith. In recent years, some judges have also refused to interfere when religious groups have dismissed lesbians, unwed mothers and adulterous couples, even if they profess the same faith, because they have violated their employersâ€™ religious codes.
Right. But Henriques really needed to add a few more words to that last sentence. It really should end by saying, "because they have violated the doctrinal and moral covenants that they signed of their own free will on the day they took their jobs."
In other words, a Wiccan mega-coven -- should one ever exist -- has a right to dismiss its lesbian priestess if she decides to get married and become a Southern Baptist. A mosque can dismiss the leader of its preschool if he converts to Judaism and starts telling all the children about the glories of Israel. Focus on the Family can dismiss someone who has an affair. Or they can choose not to do so, if the leaders of the ministry believe the man or woman has repented.
That's called "freedom of association." It's a pretty important concept. Someone at the Times needs to look that up.
However, it is clear that Henriques is aware that the same laws that protect conservative groups protect liberal religious groups. She even knows that some of our most important recent laws protecting religious liberty were passed with the help of the Clinton White House and super-broad coalitions of religious leaders that ranged from the Eagle Forum to the ACLU, from the National Council of Churches to the National Association of Evangelicals, from the Southern Baptists to the Episcopalians. On these issues, Pat Robertson was dancing with Bill Clinton (although it isn't nice to dwell on that image).
So let me end there. What do I think Henriques should have done to improve and balance this story? She needed to talk to more clergy and experts on the religious left.
And almost all the church-state lawyers said: Amen.