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Waters on Hosanna-Tabor’s Potential Impact on Reproductive Rights

Jessica L. Waters (American University School of Public Affairs) has posted Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees’ Reproductive Rights. The abstract follows.

In April 2009 Jaretta Hamilton, a married elementary school teacher, was fired after her employer school learned that Hamilton became pregnant prior to her wedding. In October 2010 Christa Dias, an unmarried technology coordinator for two schools, was fired after her employer learned Dias was pregnant via artificial insemination. In 2011, Emily Herx, a married Language Arts teacher who was struggling with infertility, was fired after the school where she had been teaching for seven years learned that Herx was undergoing in vitro fertilization treatments. In the fall of 2011, Cathy Samford, an engaged middle school science teacher and volleyball coach, was fired after her employer discovered Samford’s pregnancy.

Can the employer schools of these four women legally fire them for attempting to become pregnant or actually becoming pregnant? Because the schools in question are religiously-affiliated schools, in the wake of Hosanna-Tabor Evangelical Lutheran Church v. EEOC the answer may be yes.
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Posted on by rbonham1 · 5 Comments

Laycock on the Vulnerability of Religious Liberty

Today I (re)read Doug Laycock’s recent essay called “Sex, Atheism, and the Free Exercise of Religion,” 88 Detroit-Mercy L. Rev. 407 (2011).  It’s an important essay, and everyone who reads a blog like this one ought to read it and think seriously about it.

The essay, written before the current controversy about the “contraception mandate,” begins with the sobering observation that  “[f]or the first time in nearly 300 years, important forces in American society are questioning the free exercise of religion in principle– suggesting that free exercise of religion may be a bad idea, or at least, a right to be minimized.”  And he “worr[ies] that the success story [of American religious liberty] may now be at risk.”

Doug describes the challenge to free exercise as coming from two main sources.  First, the gay rights movement has come to perceive traditional religion as its principal enemy.   And “[i]f traditional religion is the enemy, then it might follow that religious liberty is a bad thing, because it empowers that enemy.  No one says this straight out, at least in public.  But it is a reasonable inference from things that are said, both in public and in private.”  Doug makes it clear, by the way, that he is strongly in favor of gay rights, and he lays approximately equal responsibility on gay rights activists and religious conservatives for their unwillingness to compromise.

Second, there has been an increase in the number and visibility within American society of non-believers– atheists, agnostics, and even people who may have a religious affiliation but little actual belief or religious commitment.  Doug explains how the more active presence of non-believers alters perceptions of religious freedom.  When everyone or nearly everyone was a religious believer of one type or another, religious freedom could be seen as “a sort of mutual non-aggression pact” that was beneficial to everyone.  Today, by contrast, “[m]uch of the nonbelieving minority sees religious liberty as a protection only for believers.  On that view, a universal natural right morphs into a special interest demand . . . .”1

The essay should serve as a warning to those who think expressions of concern about religious freedom are trumped up or “much ado about nothing.”  Doug’s expression of concern is especially credible for several reasons.  First, he is not only a leading scholar of religious liberty, but he has also been active in litigating and lobbying for religious liberty.  He knows what he’s talking about, first-hand.  Second, Doug’s support for gay rights and his publicly expressed religious agnosticism should make it more difficult to dismiss his expression of concern as just pretextual or paranoid, as critics may say when Catholic bishops or LDS authorities raise similar concerns.  In addition, I don’t think Doug is temperamentally pessimistic or apocalyptic (as his essay suggests that I may be– heaven forbid!).

One lesson I would draw (and that Doug in fact draws) is that the problem of articulating persuasive justifications for religious freedom is not just an academic exercise (as, for example, Marc’s comment on a post from last week might be taken as suggesting).

— Steve Smith

Posted on by Mark Movsesian · 1 Comment

Ambrose and the Emperor

CLR Forum readers in New York City this summer should check out “Bellini, Titian, and Lotto,” currently on display at the Metropolitan Museum of Art. The whole exhibition is worthwhile, but church-and-state types will particularly enjoy an 15th century altarpiece, “Saint Ambrose and Emperor Theodosius I,” by Bergognone (left). The painting depicts one of the most important church-state confrontations in history.

In 390 A.D., the Emperor Theodosius — the same Emperor Theodosius who had made Christianity the state religion of Rome — ordered a massacre in the city of Thessalonica, some of whose citizens had revolted. Seven thousand people died, many of whom had played no part in the uprising. When Theodosius subsequently appeared in Milan and attempted to attend Mass, Ambrose, the city’s bishop, physically stopped him from entering the church. According to a roughly contemporaneous account by a church source:

When Ambrose heard of this deplorable catastrophe, he went out to meet the Emperor, who—on his return to Milan—desired as usual to enter the holy church, but Ambrose prohibited his entrance, saying “You do not reflect, it seems, O Emperor, on the guilt you have incurred by that great massacre; but now that your fury is appeased, do you not perceive the enormity of your crime? You must not be dazzled by the splendor of the purple you wear, and be led to forget the weakness of the body which it clothes. Your subjects, O Emperor, are of the same nature as yourself, and not only so, but are likewise your fellow servants; for there is one Lord and Ruler of all, and He is the maker of all creatures, whether princes or people. How would you look upon the temple of the one Lord of all? How could you lift up in prayer hands steeped in the blood of so unjust a massacre? Depart then, and do not by a second crime add to the guilt of the first.

Theodosius, the account continues, “who knew well the distinction between the ecclesiastical and the temporal power,” submitted to the rebuke and repented. At Ambrose’s insistence, he decreed that a death sentence would not again be executed until 30 days had passed, so that the authorities could justly determine the facts. Ambrose then readmitted the Emperor to the church, but ordered him to remain with the laity outside the altar rail: “A purple robe makes Emperors, but not priests.”

Struggles between the Church and the Empire did not end in the fourth century, of course; indeed, they were just beginning. And this account does sound a bit tendentious. I imagine the Emperor (who, like Ambrose, is a saint, at least in the Orthodox tradition) had his own version of the story. But church-autonomy supporters have long argued that this episode shows that a distinction between church and state as institutions goes back to the very beginnings of Christian civilization in the West. And there it is, hanging in the Met. You see? Church and state issues really are everywhere.