The occasions are rare when I find much to agree with in the columns of Sarah Posner, a writer for the blog “Religion Dispatches.” But this particular column is a mess.
The especially messy portion that I want to highlight is the discussion of the connection between the ministerial exception case, Hosanna-Tabor v. EEOC, and the recent decision of the Obama Administration to make permanent a rule which will require various religious employers to provide their employees with health plans which cover services and products with which they have objections of religious conscience. Posner says:
The Beckett [sic] Fund for Religious Liberty, which, as I reported in my long religious freedom piece, represents both a Catholic college and an evangelical university in challenging the rule, has issued a statement (tellingly calling the rule an “abortion drug mandate”) claiming that the rule will not withstand constitutional scrutiny. As other observers have noted, opponents of the contraception mandate have claimed that the Supreme Court’s recent decision in EEOC v. Hosanna-Tabor, which recognized a “ministerial exception” that prevents churches from being sued by “ministerial” employees under federal employment discrimination laws. [sic] The Beckett Fund makes this argument in its statement [sic], but legal observers have noted the narrow holding in that case. The opponents of the Obama administration decision like the Beckett [sic] Fund does in its statement, will attempt to make the Hosanna-Tabor into a broad statement against government interference in church affairs in an attempt to bolster their claims against the contraception mandate.
The second sentence in this paragraph is ungrammatical, so it is opaque to me what Posner means. “Opponents of the contraception mandate”…claim what exactly? They don’t seem to be making any claim about Hosanna-Tabor in the second sentence. There is also a citation to the Becket Fund (as in Sir Thomas of Becket, not Samuel Beckett) and a document which it has produced purporting to challenge the contraception mandate by making an argument from the ministerial exception. Could someone point me to the place where the Becket Fund makes that connection? Or could someone point me to the place where anyone — anywhere — has made the claim that the holding in Hosanna-Tabor can be extended to “a broad statement against government interference in church affairs” which would render the contraception mandate unconstitutional? I’ve been poring through documents about this issue on the Becket Fund site, and have not found any making this completely dubious connection. Who, other than Posner in this column, is saying this?
UPDATE: Though the Becket Fund has not made the argument referenced by Posner, I am apprised that Matthew Franck at First Things makes a connection between Hosanna-Tabor and the contraception mandate in this post. Franck says that Hosanna-Tabor stands for the view that “in the internal governance of religious organizations, the First Amendment permitted no government interference.” Respectfully, that is not what the Court held. The Court held that when it comes to hiring and retention decisions of those employees defined as “ministers” (however defined), anti-discrimination laws which apply to secular institutions do not automatically apply to religious organizations. The case was narrowly limited to employment discrimination suits “brought on behalf of a minister.” There is nothing in this holding which would apply to the contraception mandate. It may be that the connection between the Hosanna-Tabor decision and the contraception mandate case is, as Franck also says, that the Obama Administration in both cases is taking hard-line and extreme positions. But that is not a legal connection.