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The Supreme Court Sets the Stage for Future Battles on Religious Freedom

Most of you reading this do not know me personally, and that’s OK.  So, allow me to start with a (very) short introduction so you can know where I’m coming from.  I am a seminary student.  I’m working to earn a Master of Divinity degree and will graduate in a year and a half (assuming my Hebrew textbook doesn’t murder me first).  At that point, I will be entering into full time Christian ministry.  With this in mind, I take a particular interest when the news of the day has an impact on America’s faith community.

Such a news story broke yesterday when the Supreme Court took a sharp leftward turn without the curtesy of using its turn signal.  In a 6-3 decision, the court ruled that gay and transgender people are covered under Title VII protections.  This means that, as far as employment goes, they are now protected classes just like the classes of race, color, religion, sex, and national origin.  Employers cannot fire or refuse to hire based on any of these categories.

Now, this is all well and good and I wouldn’t have a problem with that except this decision now leaves us with an open question about how this will affect religious institution that may have religious objections to gay and transgender lifestyles.  In his dissent, Justice Samuel Alito cites deep concerns on the part of many religious groups that the court’s decision “will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.”  According to Alito, these institutions insist they need employees who actually live the faith of the institution.   

Already these anticipated problems are being voiced by religious leaders.  According to the New York Times, Franklin Graham, the leader of the evangelical organization Samaritan’s Purse, says, “No question it is going to make it harder to defend our religious freedom, as far as an organization being able to hire people of like mind.”

For his part, Justice Neil Gorsuch, who penned the majority’s decision, showed that he and the other justices were aware of these issues in deliberation: “worries about how title VII may intersect with religious liberties are nothing new.”  However, he contends that such concerns are for future Supreme Court Cases, “But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.”

So, assuming that religious groups bring this issue before the courts at some future date, how can we expect these things to play out?  There are several possibilities. And before I begin I would like to guard all of my statements by saying that I am by no measure a legal expert.  So keep that in mind as you read.

First (and probably the least likely), is that there will be no exemptions for religious organizations.  In this case, such organizations will be forced to hire gay and transgender candidates for open positions even though their faith explicitly states that such lifestyles are wrong.  This would undermine the religious message of many Christian, Muslim, and Jewish organizations. 

Additionally, if there is no exemption for these protected classes, what about other protected classes under Title VII; namely, what about the protected class of religion?  Would the courts want to get into the business of deciding religious organizations can claim exemption for one group and not the other?  The Pandora’s Box this would open would be something to behold.  But, like I said, this one is the least likely.

Another possibility is a piecemeal approach to religious exemptions.  Churches, synagogues, mosques, and temples would not find their hands tied by this ruling but other institutions that are religious in nature, like schools, charity organizations, and other non-profits, would not be.  Or, these protections could apply by position.  For instance, a Seminary could claim exemption when it comes to hiring a theology professor or professor of New Testament studies, but not when it comes to their maintenance workers, clerical staff, or other support positions.

A third possibility is that religious organizations could find themselves with broad exemption rights when it comes to this ruling.  Simply put, religious organizations would not be subject to this ruling while secular organizations would.  This is how David French believes thing will shake out.  In a brief Twitter thread, he states that religious employers will enjoy a broad ministerial exemption and a more robust free exercise clause.  He based this prediction on previous court rulings in similar cases as well as the judicial philosophies of the relevant justices. 

Over the course of the past year or so, writer Timothy Keller has advanced the idea that the biggest struggle of Christianity in the near term is going to be learning how to advance the faith in a post Christian culture.  It is a position Christianity has never been in.  In the west, Christianity started out by having to win over a pre-Christian, pagan society.  During most of the two-thousand years since then, Christianity’s biggest concern was in ministering to a society that was already Christian.  In non-western societies, missionaries have been concerned with introducing Christian concepts to people of a completely different worldview. 

Now, at the dawn on the 21st century, Christians must contend with a society that was once Christian, but no longer is.  It is a new challenge.  While many Christians see this court ruling and others like it and panic and begin planning for the next court battle in an attempt to protect their rights, I don’t think that’s the proper way to view things. 

While certainly these court rulings are important, I think their importance lies in helping the Church plan for and strategize how it can and will engage with this new Post-Christian culture.  In other words, these court cases are defining the terms of the engagement. 

The courts are going to do what they’re going to do, and it shouldn’t surprise us when they do the wrong thing.  What’s more important is how Christians respond to it.  Are the courts going to force Christian organizations to employ individuals whose lifestyle undermines their message?  Fine, then its time for Christian organizations to stop employing people altogether and instead rely on volunteers and bi-vocational ministers.  Is the church going to get an exemption?  Fine, then we take it and then embrace the fact that we are now a counterculture charged with carrying out the Great Commission in a larger society that is intellectually hostile to us, much like the Apostles had to do in the years after Christ. 

The Church has relied on courts for far too long to advance its agenda and protect its rights.  What should have been going on is that the church exercised its rights to advance its own agenda.  Hopefully, a court that continues this leftward march will be the incentive the Church needs to once again become the intellectually robust counterculture it once was.

In the meantime, all Christians would do well to read I Peter 2:11-25 in which the apostle gives instructions to his readers on how to live a Godly life in a non-Christian society. 


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