A Philosopher's Blog

Church & State: IVF & Firing

Posted in Business, Law, Religion by Michael LaBossiere on May 2, 2012
Seal of the United States Supreme Court

Seal of the United States Supreme Court (Photo credit: Wikipedia)

While churches have long enjoyed the ministerial exception rule that allows them to ignore the usual anti-discrimination laws in regards to employment, certain churches have expanded that exception beyond the ministry. For example, Emily Herx was fired from a Roman Catholic school and she claims this was because she used in vitro fertilization(IVF). In response to what she regarded as discrimination, she brought a law suit against the church.

The Roman Catholic Church officially rejects IVF and the church has contended that the sort of lawsuit filed by Herx  is a challenge to its right  “to make religious based decisions consistent with its religious standards on an impartial basis.”  In January of 2012 the United States Supreme Court ruled that religious employers can fire religious workers on the basis of ministerial exception and the employer cannot be sued for discrimination. Rather unfortunately, the Supreme Court neglected to define “religious worker” and this has provided religious employers with considerable cover when they fire employees.

One important concern raised by this sort of situation is whether or not the ministerial exception is morally acceptable or not. A second point of concern is (on the assumption the exception is acceptable) providing an adequate definition of “religious worker.”

On the face of it, the ministerial exception does seem morally unacceptable. After all, it essentially allows religious institutions to discriminate and to “justify” this by appealing to their dogma. This seems rather problematic. After all, if a secular racist or sexist institution claimed a special exemption because of its dogma or ideology, that would be rightfully regarded as absurd. After all, making discrimination part of the dogma hardly serves to transform it from discrimination to something acceptable.

The obvious counter is that religious institutions are relevantly different from all other institutions such that religiously based discrimination is morally acceptable. This, of course, seems rather absurd. After all, if I claim that my sexism or racism comes from God, that hardly seems to magically transform it to something that is acceptable. Naturally, if it can be decisively proven that God exists, that what God commands is good and that God commands us to discriminate in certain ways, then that would be another matter. However, this seems rather unlikely to happen.

Another obvious counter is that religious freedom grants members of religious institutions the moral right to practice their faith. Because of specific doctrines, certain faiths have practices that blatantly violate the anti-discrimination laws, but these must be tolerated on the basis of said freedom.

I am willing to concede that religious liberty, like other liberties, can provide a legitimate basis for exceptions. To use an analogy, people who are conscientious objectors on religious grounds can justly be granted an exemption to military service (or to using weapons if they still wish to serve). That said, there are obvious exceptions to this. For example, the worshipers of Kali used to engage in murder as part of their faith. However, it would seem to be rather wrong to allow the faithful of Kali to murder with impunity. As another example, some religions allow for polygamy, but the United States has not granted this liberty to people of those faiths (or sects if one prefers). If the state can legitimately forbid religious exemptions for murder or polygamy, it seems reasonable that the state can also forbid exemptions for discrimination. After all, while discrimination is not as bad a murder, it still seems immoral (and is clearly illegal) and thus it seems reasonable to forbid discrimination even if a faith insists on practicing discrimination.

I would also argue that when religious institutions go beyond the ministry and enter into the realms of education, hospitals, and other businesses then they are obligated to follow the rules of those areas. A church can hardly accuse the state of trying to violate the separation of church and state when the church insists on entering areas that are legitimately regulated by the state, such as education, hospitals and business. By entering into those areas, the church has voluntarily placed itself under the same rules as the other players-to claim a special exemption because they have some connection to religion would be rather unfair and also absurd. To use an analogy, imagine if an athlete tried to get religious exemptions to the core rules of his or her sport. Obviously that would be absurd-if s/he is competing in the sport, s/he must follow the same rules as everyone else and religion is not a relevant factor in this. If s/he cannot abide by the core rules of the sport, then s/he should not compete. After all, there is no special obligation to grant exemptions to people just because they happen to disagree with the rules.

A final response in defense of religious institutions is to make a utilitarian argument, namely that more harm would be done by compelling religious employers to follow the same laws as everyone else than would be done by compelling them to follow these laws. If this can be shown, then this exception would be acceptable. I am inclined to think that this would actually do more harm than good, but this is somewhat of an empirical matter and can be tested.

In my next post I will address the matter of the legitimate extent of the exception.

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9 Responses

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  1. T. J. Babson said, on May 2, 2012 at 9:57 am

    Mike’s arguments invariably boil down to the assertion that a powerful central government should have the power to impose its values on everybody else.

    What Mike does not seem to see is that this is a totalitarian vision. In Mike’s case I think it is a benevolent totalitarianism, but it is totalitarianism nevertheless. Moreover, the gap between this “benevolent totalitarianism” and a full-fledged communist dictatorship is not very great.

    A healthy society needs other powerful institutions besides a central government–the more the better.

    • dhammett said, on May 2, 2012 at 4:03 pm

      He writes:’I am willing to concede that religious liberty, like other liberties, can provide a legitimate basis for exceptions.”
      You conclude: “Mike’s arguments invariably boil down to the assertion that a powerful central government should have the power to impose its values on everybody else.”
      My conclusion: He believes in justifiable exceptions, and in this case the excepton is not.
      “A healthy society needs other powerful institutions besides a central government–the more the better.”

      Religion, finance, corporations, family, community, the media. I’ve probably missed a few. These institutions are each powerful (more or less). But might there be such a thing as seeking a reasoned, not dogmatic, path between the rightful powers of our elected government and these institutions.

      The government has the power to impose the values of the electorate (you and me and the rest) as those values are represented in the laws that are created and passed by our elected representatives. If that would not be the case, there would be no “We the people.” When there is some question about the legitimacy of the law, we have the courts, including ultimately, the SC to affirm or deny that legitimacy. Now, if ,at this point, we entered ,into a discussion as to the values involved in these SC decisions and considered decisions such as Plessy v Ferguson , Roe , Citizens United, Brown v the Board of Education ,etc. etc. we would surely find decisions that would have someone, somewhere, complaining about “government imposing its values on everybody else”.

      This powerful government (which I would argue must be as centralized as the Constitution created it , three branches uniting to maintain order,impose justice, defend the homeland, etc. would not function without those SC decisions sifting through the central problems of our democracy. . The decisions are, arguably, too political at times– they’re often split 5/4– but I believe they are at the foundation of our powerful central government. And I wouldn’t want it any other way.

      Imagine a country where individual states’ legal decisions were final and could not be appealed to higher courts. Imagine a country where we’d have these little states representing this or that weird value system assigning unspeakable punishments for minor or perceived moral aberrations and overlooking heinous crimes that are, for some reason, considered acceptable within that state’s jurisdiction. Imagine a state through which two or three major interstate highways passed. And imagine if that same state were the home to all the country’s happy pedophiles. You’d likely get the anti-abortion vote there. 😦

    • magus71 said, on May 3, 2012 at 5:57 am

      It’s basically about a government-centered life.

    • Michael LaBossiere said, on May 4, 2012 at 6:12 pm

      Well, no. In numerous posts I argue against just that sort of thing. I consistently argue for a principle of freedom and only advocate state impositions when doing so prevents people from harming each other in unwarranted ways and this cannot be done effectively without the state. So, for example, I am for freedom of expression. I am also for the freedom of self-abuse (that is, people should be allowed to smoke, drink, and so on-provided that they do not inflict harm on others via these activities).

      You’ll notice that I consistently use Mill’s view of liberty and consistently impose imposition of values by the state in areas in which it is not done to prevent actual harm.

      Totalitarianism is actually a contradiction to communism, since under communism there is not supposed to be any state. The “communist states” are just dictatorships that quote Marx.

      Quite so-a complete monopoly on power would be a disaster for freedom. Hence, I advocate significant freedoms for universities, churches, unions, businesses and so on through their members.

  2. dhammett said, on May 3, 2012 at 10:43 am

    magus– I don’t believe it’s that simple . My preference would be to live in a government and law-centered society rather than in a church-, finance-, corporate-, family-, community-, or media-centered society. To me it’s more about striking a reasoned path between government and those other institutions.

    Our government, exists. All of the governments– federal, state, local– exist. They must. In a real world dominated by real human frailties, without our laws carried out by our government we’d be fortunate on any given day to survive breakfast or retrieving the morning news from the front porch.

    Government is obviously too large. To imply that the bloat–the pork and corruption and inefficiency and stupidity– can be laid at the feet of one party or another would be , frankly, foolish. Much of our current size is due to the simple fact that the country is huge. It’s population is growing. This isn’t our Founding Fathers’ America with a population of 4 million. And, for those who have noticed, our borders have expanded somewhat since 1789.

    So, what do we do about big, bad government–as opposed to the big, good government? Obviously, we fight “the pork and corruption and inefficiency and stupidity”. The “peoples’ groups” like the Tea Party and Occupy have potential in that arena, but both groups’ motives are too transparently politically oriented. We can go to our constitutions for guidance. When it comes to determining what is legal and illegal in our dealings with others, we depend on our laws and the government that applies them. Those laws are inevitably influenced along the line by religion, community, world events, etc. But I do not want to live in a country guided solely by religious laws. Or corporate needs. Or media (mis)information. I prefer to live in a country the laws of which are influenced by many forces–including religion.

  3. Sheldon said, on May 5, 2012 at 10:37 pm


    • The Kali example only works if sacrifices are made when people do not join willingly.
    If a religion requires some members to sacrifice themselves, cf. Jim Jones, to be consistently honest, then must allow those members to sacrifice themselves.

    Where religious practice become problematic is when said religion chooses people who are not members of their set for sacrifice. That is murder vs. suicide. Albeit the US law has rules prohibiting suicide.

    • The argument that religious institute must adhere to the local custom is invalid. A Hebrew school need not offer Ebonics or Swahili in an predominately Black neighborhood.

    What happens in instances in which the neighborhood changes. Should a Catholic church suddenly adopt Unitarian ways just because the majority of the neighbors are now secular or “spiritualist”? Obviously not.

    • Your argument lacks compelling necessary and sufficient just cause to require that any religious institute beholden to state policy.

    • Michael LaBossiere said, on May 7, 2012 at 3:51 pm


      • The Kali example works because the principle in the IVF case is that churches can act in ways that violate the normal laws regarding how people are treated. So, if the law says that people cannot be discriminated against and the church folks say “religious exemption” in the case of hiring, the same would thus seem to also apply to cases of murder or theft. After all, if religious views warrants the exception to the law, then this principle should hold in general. It could be replied that the exemption must be limited to avoid harming people, but this would then apply to cases of discrimination as well.

      • I don’t claim that religious institute must adhere to the local customs, just the same laws that apply to other institutions in the same fields. So, if a church wants to run a school, a bank or a bookstore, they need to follow the laws governing business. If they want to remain religious in nature, then they need to stay within the field of religion.

      • I’m not sure what you mean by a “compelling necessary and sufficient just cause” in this context. Are you looking for a bi-conditional statement expressing my principle?

  4. Russ Brouwer said, on December 17, 2016 at 10:08 pm

    kiddie porn

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