— Martin E. Marty
Those who observe United States Supreme Court decisions on “church and state” are dealing with what many call the most important “religious liberty” case in decades, at least since the 1940s. Like so many cases, this one had a parochial start. The details are familiar, and we need not rehearse them all. Let it come to focus on the fact that a Lutheran parochial school teacher had been dealt what to her was a manifest injustice. She countered by seeking to pursue her case in court. Doing so, claimed the church, was counter to church teachings, so it fired her. Had she been a simply secular employee in a simply secular post, the usual standards for administering justice would have applied. But the church named her a “minister,” and argued for a “ministerial exception” to secular standards. The Supreme Court decision left the teacher out in the judicial cold and left many citizen justice-advocates heated up.
So we add a “ministerial exception” to a national vocabulary and code which makes another exception in religious matters, alongside “tax exemption for the churches.” Such a tax exemption practice is so widely appreciated that few think of its rationales and practices. Try getting elected to Congress on a platform which would question and even abolish such tax exemption. Is exemption just? Clearly, it is privileging religion, and many court decisions recognize and affirm this. Once again: is it just? Is it just to the significant percentage of the population which disfavors religion, ignores or disdains its institutions, yet pays higher taxes than if church properties were taxed. Never mind. Without such an exception, religious institutions would not thrive or always survive. So it is regarded, not always with clear rationales, as a public good. Does this mean that the church, which is supposed to be prophetic, has to mute critical roles and support religious institutions even when they have, in the eyes of their critics, malign purposes and malignant practices. Yes. Being uncritical is a price religious institutions pay for the goods they derive for their prosperity in a free republic and letting the institutions go free from taxing is the price it pays when it can only wink at religions damaging the public good, as many of them do.
“With liberty and justice for all . . .” is an ascription in the Pledge of Allegiance to the flag, one that sets up a difficult balancing act. The founders, among them James Madison and others who quoted Montesquieu, were nervous. They quoted him: granting privileges to religion, as America does, has many upsides, but it can also contribute to downsides. If you want to destroy religion, Montesquieu had advised, give it favor. By granting “tax exemption” and now “ministerial exceptions,” the citizenry and its courts (unanimously in this case of the Supreme Court) are giving favors unmatched by policies of European nations which have or until recently had “established churches.”
These years one hears from some cultural and political factions the gross generalization that religion in general and Christianity in particular are being discriminated against and are suffering from the actions, policies, and expressions of secular society. Cases like the current one counter evidences. There are many assaults on faiths, including Christianity, in the culture at large. But the generally free ride given religious institutions even in a “secular time” should inspire thought: With all its contradictions, the United States remains a wonderful place in which religions can prosper. They do well when they serve the common good freely and openly.
“Supreme Court Decision: Hosanna-Tabor Evangelical Lutheran Church and School v. E.E.O.C.” New York Times, January 11, 2012.
A background item that provides some context for Sightings today on “rights” and “privileges” is this condensation of a lecture:
Martin E. Marty’s bi
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