Nicholas P. Carfardi
The Supreme Court of the United States, in its Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC opinion, upheld the “ministerial exception” that the U.S. circuit courts had long recognized. Basically, this exception states that churches cannot be sued over employment decisions regarding those whom the church hires to “preach their beliefs, teach their faith and carry out their mission.”
The Supreme Court’s Jan. 11 decision is rooted in both the free exercise and the establishment clauses of the First Amendment, and is very fact-specific to the Hosanna-Tabor case. The decision gives no clear rule as to who is or is not covered by the ministerial exception. But clearly, from the language of the court, two things are required: The employer must be a church, and the employee must be an agent of the church, hired by the church to preach the church’s beliefs, teach its faith and carry out its mission.
If you count the sayings of Jesus in the New Testament, a phrase he uses with some regularity is “Be not afraid.” He says it to the apostles in all four Gospels, and he even tells it to Paul twice in Acts, once in a personal vision, and once in the voice of an angel.
Yet, today, his church finds itself afraid: afraid of movements by state legislatures to define civil law marriage in such a way as to allow same-sex partners to marry civilly. Why are we afraid?
Civil legislatures cannot define for the church what sacramental marriage is, what matrimony is. The First Amendment protects us from that. No legislature can tell the church who to marry or who not to marry.
So if the state wants to say that a man can civilly marry a man, or that a woman can civilly marry a woman, why should the church care?
The announcement from Cardinal William Levada, Prefect of the Congregation for the Doctrine of the Faith, of the new norms for “more serious crimes” (de gravioribus delictis) was certainly a step forward in the church’s law regarding the sexual abuse of children.
The three helpful changes in the church’s law are
- Now the victim of sexual abuse by a priest has up to the age of 38 to report the crime and have it canonically prosecuted.
- The sexual abuse by clergy of mentally incompetent victims, beyond the years of childhood, is now considered the same crime as abusing a minor.
- And the acquisition, possession or distribution of child pornography is a canonical crime in and of itself.
Last November at their post-election meeting, a vocal minority of bishops lamented the election results, aghast that not only a majority of Americans, but more tellingly a majority of Catholics, had voted to make Barack Obama President of the United States. So extreme were the comments of these few bishops that some could easily have confused them with Republican ward-heelers, and be prone to the fear that a new “Republican Captivity” of our Church was in full force.
A lot of the bishops’ hysteria at their November meeting was over that great Republican bogeyman, the Freedom of Choice Act (FOCA), which was not a part of the Democratic platform, and had absolutely no priority among the issues facing the new administration. This did not prevent the public lamentations of select bishops on how FOCA would force Catholic hospitals to close - despite the insistence of the Catholic Health Association to the contrary.
They did not let facts get in the way of their agitation. One bishop, who did not even have a Catholic hospital in his diocese, was so carried away with anti-Obama fervor that he said he would close his fictitious Catholic hospital, if he had one!