The Obama Administration is attacking religious freedom in court, even as Obama depicts his policies as ordained by God. At a Congressional Black Caucus rally Saturday, he implied that God supported his policies, “likening” the “black voters who ‘keep the faith’ by supporting him and his policies” to “Biblical prophets who had faith in God — and so refused to worship an idol.” “Obama then explained how he had ‘kept the faith’ through various acts as president — by responding to the economic crisis with the Dodd-Frank Wall Street regulations bill, through certain tax credits he had passed and through Obamacare. He finished with a plug for the American Jobs Act.”
(Obama’s suggestion that the Dodd-Frank Act was God’s will may come as a surprise to the thousands of Americans whose jobs will be wiped out or outsourced due to the Dodd-Frank Act, just as his belief that the healthcare law was divinely-ordained may baffle people whose insurance premiums have gone up due to Obamacare. Experts have given Obama’s so-called American Jobs Act a thumbs down, and if it were enacted, it would drive up the national debt without creating jobs.)
Meanwhile, Obama Justice Department lawyers sought to abolish a longstanding protection for religious freedom. The Establishment Clause and Free Exercise Clause of the Constitution generally forbid government “entanglement” with religion. One such forbidden entanglement is government meddling in who churches, synagogues, and religious organizations hire to act as “voices of the church,” such as ministers, rabbis, theology professors, and instructors of religion. To prevent such entanglement, every federal appeals court has recognized a “ministerial exception” to federal and state labor and employment laws dictating who employers must hire. A long line of court rulings recognizes this principle, such as EEOC v. Catholic University and Young v. Northern Illinois Conference of United Methodist Church. Thus, the Catholic Church cannot be forced to hire a female priest, and a synagogue cannot be forced to hire a Christian or Muslim as a rabbi. But Justice Department lawyers recently called for this limit on government interference to be rejected. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Justice Department intervened to attack religious freedom, and its “brief disputes the general existence of the ministerial exception.” The Justice Department thus seeks to apply to religious institutions the requirements that historically applied only to secular employers, like the Title VII requirement of not having policies that either intentionally or unintentionally discriminate against any group.
If the Justice Department’s position were adopted, some churches might be pressured to adopt race and gender quotas. If the Justice Department’s position were accepted by the courts, not only would churches have to hire people who are ineligible to serve as clergy under their longstanding theology (like the Catholic Church being forced to hire female priests), but they might also have to get rid of education, training, and theological requirements that unintentionally weed out disproportionate members of particular groups. For example, if female divinity students are more often pro-choice than male divinity students (and they are indeed more liberal on average than their male peers), a church could arguably violate laws against sex discrimination if its theology frowned on abortion, since requiring adherence to that theology would have a “disparate impact” on female representation in the pulpit. (Federal and state anti-discrimination laws forbid covered employers from having hiring criteria that result in even unintentional disparities based on race or gender, like a school district requiring would-be teachers to pass a basic competency test that more blacks than whites fail, or a private employer requiring a high school diploma for an unskilled job. Under federal anti-discrimination statutes, there is a statutory “business necessity” defense to claims of unintentional discrimination that a church might be able to invoke; but under some municipal laws, there is virtually no such defense. Washington, D.C.’s municipal code defines “business necessity” so narrowly that many sensible practices are banned if they produce any unintentional gender or race disparities, even if banning the practice is very costly to the institution. Currently, Washington, D.C. municipal law contains a limited religious exemption, but the Justice Department’s position suggests there would be no constitutional impediment to completely abolishing that exemption.)
The extreme position taken by the Obama Justice Department in its briefs is a reflection of ideologically-based hiring. Under the Obama Administration, the Justice Department has chosen to hire only liberals, not moderates or conservatives, for key Justice Department posts that are supposed to be non-political career appointments. Although many experienced lawyers are out of work in the current economic slump, the Obama Justice Department has hired many inexperienced liberals who have no real-world legal experience, rather than hiring based on merit