don’t kill me, bro!

The New York Times dropped a bombshell expose earlier this week when it reported on many details of a ‘Secret Kill List’ that the President heads up. The existence of such a list within the administration isn’t news: the Los Angeles Times reported more than two years ago about a CIA drone hit list when there was talk of putting US citizen Anwar al-Awalki on it. Of course, he was put on that list and was later executed by drone to much fanfare.

What is new information is the personal role that Obama himself takes in deciding who lives and who dies. According to Tuesday’s Times article, “Mr. Obama has placed himself at the helm of a top secret ‘nominations’ process to designate terrorists for kill or capture, of which the capture part has become largely theoretical.”

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Supreme Court unanimously supports arbitrary discrimination in churches

In a rare unanimous decision, the Supreme Court today held (pdf) that churches are free to hire and fire ‘ministers’ without regard to anti-discrimination law. At issue was the case of Cheryl Perich, a teacher at the Hosanna-Tabor Lutheran Church and School in a suburb of Detroit. She developed narcolepsy and began the 2004-2005 school year on medical leave. After a while, Perich announced her fitness and intent to return, but school administrators seem to have convinced the congregation that this was unlikely to be true, and it offered to pay some of her medical expenses if she would resign: pure Christian love. Perich refused and instead obtained a doctor’s note certifying her again to work by late February, but the school had already contracted another teacher to replace her and seemed intent to block her. Perich appeared on the first day she was certified to work again, but was asked to leave and told she was likely to be fired. She responded by threatening legal action under the Americans with Disabilities Act. Chief Justice Roberts notes in the unanimous opinion that her termination letter was quick to follow, citing as grounds “Perich’s ‘insubordination and disruptive behavior,’ as well as the damage she had done to her ‘working relationship’ with the school by ‘threatening to take legal action.’”

Roberts writes for the Court that ever since the Civil Rights Act, there has been a ‘ministerial exception’ for employment discrimination prevention, which he defends at length (more on that shortly). Because Perich conducts religious instruction 45 minutes every day and attends a weekly religious meeting with her class; and because her title of “called” teacher means that the Lutherans believe she has been literally called by God (and the congregation) to her position and was required to take some religious instruction herself, unlike “lay” teachers the school also sometimes employs to perform many of the same religious functions when God hasn’t gotten around to calling someone; and the fact that the majority of her instruction is in a wide variety of secular matters, owing to her four-year run as a kindergarten teacher and most recent year in the fourth grade, notwithstanding; the Court decided that she is a ‘minister.’ Indeed, in a concurring opinion, Justice Thomas notes that it ought to be up to the church to decide who is and is not a minister. And in a concurring opinion written by Alito and joined by Kagan (that’s right, Alito and Kagan agreeing on a concurring opinion!), the Justices argue that the term ‘minister’ itself ought not to be used at all, since many religions don’t have such a term.

My main issue with this ruling is that it smells like melodramatic bullshit. Roberts spends pages talking about the historical rationale for and the application of the first amendment, going from implementation failings of the magna carta’s promises of popular freedom to issues about territorial governance to clashes between slave owners and abolitionists to issues of property rights. Roberts and Alito both avoid the obvious likelihood that this isn’t really about the need for religions to have the power to choose their ministers free of governmental meddling, the latter opinion expressly prohibiting an inquiry to determine whether that argument isn’t just a convenient excuse, a ‘pretext for discrimination,’ since that would require making ‘a judgment about church doctrine.’ But isn’t that really the point?

Here we have a woman who is going to be terminated first for having a medical condition and second for trying to sue over that attempt to terminate her since All Good Lutherans settle their disputes within the church. The merits of the ADA suit aren’t even addressed in this decision; the suit simply is dropped since this school teacher is actually a ‘minister’ because she prays with her class and teaches them about God 15% of the time in a church-run school. Do we really suppose the Lutherans want to fire this woman because narcolepsy is a sign of satanic possession, or because their eleventh commandment is ‘Thou shalt not sleep on thine job’? But Roberts waxes poetic about what an order to reinstate, or even pay damages to, the complainant would mean: “Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”

But how far do we take this? Couldn’t this church fire anyone it pleases and claim immunity to accountability since it might be that doctrine supports the decision? Is there not now an incentive, under the concurring opinions, for faith-based organizations to label anyone a ‘minister’ (or corresponding title) in order to secure legal exemption for civil wrongdoing? Roberts condescendingly refutes this argument that the Court’s decision opens the door to ‘a parade of horribles,’ dispelling the spectre of church-and-hence-state-sanctioned child-molesting priests (never could happen!) by explicitly noting that criminal acts and police investigations are not granted this blanket immunity and absolute prohibition, respectively, under this ruling. But a host of noncriminal activities appear to be fair game, modern civil rights and fair employment legislation notwithstanding, under this unanimous decision; and all thanks to an amendment which sought, according at least to Roberts’s own opinion, mainly to prohibit the government from installing its own religious leaders. Is that really the only thing that makes religious groups more sacred (forgive the pun) than every other social organization recognized by law and answerable to the ADA?

Some experts are not pleased. As usual, Nina Totenberg at NPR did some excellent journalism (increasingly a rarity at the offices of her august employer) to find out what people who matter think about this:

“It’s unanimous that she counts as a minister, it’s unanimous that ministers can’t sue, it’s unanimous that it doesn’t matter that whether the church had a religious reason or not,” [University of Virginia law professor Douglas] Laycock said. “The courts can’t inquire into that. That’s the story here today.”

“When the court says you can have no inquiry into whether this religious reason is pretextual and just a cover for some kind of discrimination, that’s a big deal,” [George Washington University law professor Ira Lupu] said.

The only silver lining is that this decision might not carry much sway as a precedent. The majority opinion was clear that while Perich is a minister, the Court is not establishing a minister test with this ruling. Still, it is clear that our secular democracy still has a healthy — even unanimous — respect for faith, and common sense and civil rights be damned.