Posted on by Marc O. DeGirolami

New York Court Dismisses Breach of Contract Suit Under Ministerial Exception

In New York’s first application (and extension) of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, a state court has dismissed a wrongful termination law suit filed by an ordained minister of the United States Methodist Church and a former employee of the General Commission on Christian Unity and Interreligious Concerns (GCCUIC), an arm of the Church devoted to ecumenical work.  The Book of Discipline of the Methodist Church set out the plaintiff’s job responsibilities, which included interfaith dialogue as well as proselytism.  It also stated that those in the plaintiff’s position:

shall be persons who model themselves after the servanthood of Jesus Christ. They shall be persons of genuine Christian character who love the Church and are committed to the oneness of the body of Christ, are morally disciplined and shall uphold the doctrinal and ethical standards of The United Methodist Church as set forth in the Doctrinal Standards and Social Principles, and are competent to administer the affairs of a general agency[.]

The plaintiff was fired, it seems, after a falling out with his superior.  He claimed that he was wrongfully terminated and that Hosanna-Tabor did not apply because his job was secular.  Though the court recognized that Hosanna-Tabor did not extend to breach of contract or tort actions, it disagreed.  Here is a good chunk of the court’s thorough analysis, which engages in very much the sort of particularist methodology laid out in Hosanna-Tabor as necessary to understand the nature of the employee’s position:

Unlike Hosanna-Tabor, it is undisputed that Mills is an ordained minister. He has several years of religious education and held ministerial positions before and after his employment with the GCCUIC. Pursuant to Hosanna-Tabor, the fact of his ordination is relevant to this inquiry. Nonetheless, Mills argues that the ministerial exception does not apply because his job duties with the GCCUIC were wholly secular. For the following reasons, this Court disagrees.

In Hosanna-Tabor, the Court noted it was relevant that “significant religious training and a recognized religious mission underlie the description of the employee’s position” (id. at 708). The GCCUIC required candidates for the Associate General Secretary position be “persons who model themselves after the servanthood of Jesus Christ” with a masters level education in theology, experience with ecumenism and interfaith relations, and “[t]heological acumen.” Therefore, it is evident that the position requires “significant religious training.”

As to whether “a recognized religious mission underlie[s] the description of the employee’s position,” the record indicates that the focus of the Associate General Secretary position is to “promote and further theological dialogue with other Christian Communications and interfaith partners” and to promote the purposes of the GCCUIC. Mills characterizes the purposes of the GCCUIC as “to advocate and work toward the full reception of the gift of Christian unity and to strengthen relationships with other living faith [sic] and to dialogue with persons of other faiths, cultures and ideologies” (Opp. Mem. at 2-3).2 Despite Mills’ arguments to the contrary, these are clearly religious purposes and a “recognized religious mission” underlies his job description.

Similar to the manner in which Hosanna-Tabor “held Perich out” as a minister, the GCCUIC held Mills out as a minister by classifying him as a ministerial employee and designating him as a clergyperson assigned to an “extension ministry.” Mills held himself out as a minister by claiming the housing tax exemption and presenting himself as a minister while conducting official GCCUIC business, and by wearing his collar and ministerial attire during business travel.

Pursuant to Hosanna-Tabor, even if Mills performed primarily secular duties, the ministerial exception will apply if his job duties “reflected a role in conveying the Church’s message and carrying out its mission.” The record indicates that Mills acted as a representative of the GCCUIC and The Methodist Church by participating in ecumenical dialogues with a variety of interfaith organizations and ministries where he “articulat[ed],” communicated, and interpreted the “perspectives positions, traditions” and the history of The United Methodist Church. During the course of his employment, he also wrote and published a variety of ecumenical writings and presentations which he touted as professional accomplishments in at least one performance review with the GCCUIC. On at least one occasion, he performed ministerial duties when he “preach[ed] during the Week of Prayer for Christian Unity.” Given all of these factors, it is clear that Mills had a role in conveying the Church’s message and carrying out its mission.”

Furthermore, adjudication of Mills’ claims would require this Court to interpret various sections of the Book of Discipline, a constitutionally questionable endeavor at best, given the religious nature of the text. Specifically, this Court would be obliged to examine Mills’ behavior and determine whether his termination was justified under paragraph 711 of the Book of Discipline which enumerates reasons that an Associate General Secretary may be terminated. Because New York law does not have legal standards for “immoral conduct” or “breach of trust,” there is no basis in law for this Court to determine whether Mills violated these provisions.

The case is Mills v. Standing General Commission on Christian Unity (No. 601640/2009, Jan. 29, 2013).

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Schieber, Conway, and McCarthy, “Where Justice and Mercy Meet”

Where Justice and Mercy MeetThis February, Liturgical Press will publish Where Justice and Mercy Meet (2013) edited by Vicki Schieber (Catholic Mobilizing Network), Trudy D. Conway (Mount St. Mary’s University), and David Matzko McCarthy (Mount St. Mary’s University). The publisher’s description follows.

 Where Justice and Mercy Meet: Catholic Opposition to the Death Penalty comprehensively explores the Catholic stance against capital punishment in new and important ways. The broad perspective of this book has been shaped in conversation with the Catholic Mobilizing Network to End the Use of the Death Penalty, as well as through the witness of family members of murder victims and the spiritual advisors of condemned inmates.

 The book offers the reader new insight into the debates about capital punishment; provides revealing, and sometimes surprising, information about methods of execution; and explores national and international trends and movements related to the death penalty. It also addresses how the death penalty has been intertwined with racism, the high percentage of the mentally disabled on death row, and how the death penalty disproportionately affects the poor.

 The foundation for the church’s position on the death penalty is illuminated by discussion of the life and death of Jesus, Scripture, the Mass, the Catechism of the Catholic Church, and the teachings of Pope John Paul II. Written for concerned Catholics and other interested readers, the book contains contemporary stories and examples, as well as discussion questions to engage groups in exploring complex issues.

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Bhuta on Religious Freedom in the European Court of Human Rights

Nehal Bhuta (European University Institute) has posted Two Concepts of Religious Freedom in the European Court of Human Rights. The abstract follows.

This paper considers the way in which recent historical work on the history of freedom of religion and freedom of conscience opens up a new interpretation of the decisions of the European Court of Human Rights in the headscarf cases. These decisions have been widely criticized as adopting a militantly secularist approach to the presence of Islamic religious symbols in the public sphere, an approach that seems inconsistent or even overtly discriminatory in light of the court’s recent decision in Lautsi that the compulsory display of crucifixes in the classroom did not breach Italy’s convention obligations. I argue that the headscarf cases turn less on the balance between state neutrality and religious belief, than on an understanding of certain religious symbols as a threat to public order and as harbingers of sectarian strife which undermine democracy.

Posted on by Mark Movsesian

Tejirian & Simon, “Conflict, Conquest, and Conversion”

In the nineteenth century, missionaries from the West, mostly Protestant, desired to bring Christianity to the Middle East. They were a little late, of course. Christianity had been born in the Middle East and, notwithstanding centuries of Muslim dominance, Christian communities had remained there. No matter: the missionaries zealously established churches, schools, and hospitals. They were not too successful in converting Muslims, but they did have a major, destabilizing impact on Ottoman society. The missionaries brought with them Western concepts, like legal equality and religious freedom, which challenged classical Islamic norms and sparked a violent conservative backlash. If one wishes to understand contemporary debates about “universal” human rights in the context of the Middle East, the history of the nineteenth century missions is essential.

A new book from Columbia University Press, Conflict, Conquest, and Conversion: Two Thousand Years of Christian Missions in the Middle East (2012), by Eleanor H. Tejirian and Reeva Spector Simon, situates the nineteenth-century missionaries in the sweep of other Christian missionary work over the past two thousand years. It looks very interesting. The publisher’s description follows:  

Conflict, Conquest, and Conversion surveys two thousand years of the Christian missionary enterprise in the Middle East within the context of the region’s political evolution. Its broad, rich narrative follows Christian missions as they interacted with imperial powers and as the momentum of religious change shifted from Christianity to Islam and back, adding new dimensions to the history of the region and the nature of the relationship between the Middle East and the West.

Historians and political scientists increasingly recognize the importance of integrating religion into political analysis, and this volume, using long-neglected sources, uniquely advances this effort. It surveys Christian missions from the earliest days of Christianity to the present, paying particular attention to the role of Christian missions, both Protestant and Catholic, in shaping the political and economic imperialism of the nineteenth and twentieth centuries. Eleanor H. Tejirian and Reeva Spector Simon delineate the ongoing tensions between conversion and the focus on witness and “good works” within the missionary movement, which contributed to the development and spread of nongovernmental organizations. Through its conscientious, systematic study, this volume offers an unparalleled encounter with the social, political, and economic consequences of such trends.

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Flanders on Koppelman and Religious Neutrality

Chad Flanders (Saint Louis University School of Law) has posted Can We Please Stop Talking About Neutrality?: Koppelman Between Scalia and Rawls. The abstract follows.

In his essay, Religious Liberty as Liberty, Douglas Laycock cautioned against what he would later dub “the Puritan mistake,” which is the mistake, as he put it, of looking at whether religion is a good (or bad) thing rather than seeing religious liberty as “first and foremost a guarantee of liberty.” We should not, Laycock warned, let our understanding of the religion clauses be driven by what we think, substantively, about the value of religion. It should be driven, instead, by an interest in protecting the freedom of religion, and not religion per se.

Although Andy Koppelman positions himself in much the same conceptual space as Laycock, I think he makes (and would probably admit to making) a version of the “Puritan mistake.” Koppelman says that he is interested in avoiding the extreme of radical secularism that favors “the complete eradication of religion from public life” but also the extreme of religious traditionalism, which sees nothing wrong with “frank endorsement of religious propositions.”

Koppelman, like Laycock, wants to find a way between these two extremes. But instead of rejecting the traditionalist view outright, Koppelman instead insists that religion is a good thing (this is the Puritan mistake), but — partly in a bid to appease the secularists — that religion ought to be defined at a very high level of abstraction. Read more

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Annicchino on Freedom of Religion in the European Union’s Foreign Policy

Pasquale Annicchino (European University Institute – Robert Schuman Centre for Advanced Studies) has posted Freedom of Religion or Belief in the Foreign Policy of the European Union: Much Ado About Nothing? The abstract follows.

Part One of this article introduces the new European External Action Service. Part Two focuses especially on the recent policies undertaken by the European Union to include the protection of religious freedom or belief in its external action. Part Three compares the action undertaken by EU institutions with the model that served as its source of inspiration, namely the U.S. Commission on International Religious Freedom. Part Four offers some tentative conclusions. I will argue that thus far, analyzing the concrete measures approved by EU institutions in the field, the enthusiasm or early critics is not justified. The EU guidelines on freedom of religion or belief will probably only constitute a first minimal step, but more time will be needed to assess the real policy intentions in the field in concreto.

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Forst, “Toleration in Conflict”

This month, Cambridge University Press will publish Toleration in Conflict: Past and Present (2013) by Rainer Forst (Johann Wolfgang Goethe-Universität Frankfurt).  The publisher’s description follows.Toleration in Conflict

The concept of toleration plays a central role in pluralistic societies. It designates a stance which permits conflicts over beliefs and practices to persist while at the same time defusing them, because it is based on reasons for coexistence in conflict – that is, in continuing dissension. A critical examination of the concept makes clear, however, that its content and evaluation are profoundly contested matters and thus that the concept itself stands in conflict. For some, toleration was and is an expression of mutual respect in spite of far-reaching differences, for others, a condescending, potentially repressive attitude and practice. Rainer Forst analyses these conflicts by reconstructing the philosophical and political discourse of toleration since antiquity. He demonstrates the diversity of the justifications and practices of toleration from the Stoics and early Christians to the present day and develops a systematic theory which he tests in discussions of contemporary conflicts over toleration.

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Marshall, Gilbert & Shea, “Persecuted”

This March, Thomas Nelson will publish Persecuted: The Global Assault on Christians (2013) by Paul Marshall (Senior Fellow, Hudson Institute’s Center for Religious Freedom), Lela Gilbert (Adjunct Fellow, Hudson Institute) and Nina Shea (Director, Hudson Institute’s Center for Religious Freedom). The publisher’s description follows.Persecuted

Christians are the world’s most widely persecuted religious group, according to studies by the Pew Research Center, Newsweek, and the Economist, among others.

A woman is caught with a Bible and publicly shot to death. An elderly priest is abducted and never seen again. Three buses full of students and teachers are struck by roadside bombs. These are not casualties of a war. These are Christian believers being persecuted for their faith in the twenty-first century.

Many Americans do not understand that Christians today are victims in many parts of the world. Even many Western Christians, who worship and pray without fear of violent repercussions, are unaware that so many followers of Christ live under governments and among people who are often openly hostile to their faith. They think martyrdom became a rarity long ago.

Persecuted soundly refutes these assumptions. This book offers a glimpse at the modern-day life of Christians worldwide, recounting the ongoing attacks that rarely make international headlines.

As Western Christians pray for the future of Christ’s church, it is vital that they understand a large part of the world’s Christian believers live in danger. Persecuted gives documented accounts of the persecution of Christians in Africa, Asia, the Middle East, and former Soviet nations. It contains vivid stories of men and women who suffer abuse because of their faith in Jesus Christ, and tells of their perseverance and courage.

Persecuted is far more than a thorough and moving study of this global pattern of violence—it is a cry for freedom and a call to action.

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De Wolf, “Dissident for Life”

Next month, Wm. B. Eerdmans Publishing Co. will publish Dissident for Life: Alexander Ogorodnikov and the Struggle for Religious Freedom in Russia (2013)by Koenraad De Wolf.  The publisher’s description follows.Dissident for Life

This gripping book tells the largely unknown story of longtime Russian dissident Alexander Ogorodnikov — from Communist youth to religious dissident, in the Gulag and back again. Ogorodnikov’s courage has touched people from every walk of life, including world leaders such as Bill Clinton, Ronald Reagan, and Margaret Thatcher.

In the 1970s Ogorodnikov performed a feat without precedent in the Soviet Union: he organized thousands of Protestant, Orthodox, and Catholic Christians in an underground group called the Christian Seminar. When the KGB gave him the option to leave the Soviet Union rather than face the Gulag, he firmly declined because he wanted to change “his” Russia from the inside out. His willingness to sacrifice himself and be imprisoned meant leaving behind his wife and newborn child. Read more

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Annicchino & Marzouki on Emotions, Politics and Religious Freedom in US Mosque Controversies

Pasquale Annicchino and Nadia Marzouki (both at the European University Institute – Robert Schuman Centre for Advanced Studies) have posted Mosques Controversies in the United States: Emotions, Politics and the Right to Religious Freedom. The abstract follows.

In the last decade the number of mosques in the United States has considerably grown from 1209 to 1925. As shown by sociologist Akbar Ahmed, there is an important diversity among American mosques, in terms of size, ethnic background, theological teaching, proselytizing strategy. While most mosques and Islamic centres are built without encountering any opposition from local community, a few controversies have recently attracted a lot of media and public opinion attention. Rather than an exhaustive survey of all the mosque debates, this article analyses the most important specific type of arguments that were made by participants in such controversies. In particular, it examines the extent to which the relevance and the legitimacy of the liberal language of rights seems challenged by a growing part of the American public, that puts forward notions of appropriateness, sensitivity, and nationalism.