An inalienable right is not a privilege, it is not conferred by the government, and it is not something that the government can take away. As Richard Foltin of the Freedom Forum Institute explains, inalienable rights “flow from our nature as free people.” The First Amendment enshrines the government with the responsibility to protect the freedom of religion. This civic responsibility has two facets: the prevention of the establishment of religion by the government and the prevention of interference with the free exercise of religion thereof. Without the freedom of religion, America’s pluralistic society is compromised. Identity expression cannot be confined solely to the private square—if that were so, the ability for genuine individualism to exist would be compromised.
Over the past few years, religious freedom has been viewed with growing suspicion. Many Americans have come to believe that the separation of church and state means a separation of religion from politics. Proponents of this separation see religion as a matter of private worship and personal conscience. They also claim that religiously based convictions should not have a say in the public realm of politics, since these convictions stem from religious sentiment, not rational thought.
This distinction is not only wrong but has no standing with Supreme Court precedent (see Sherbert v. Verner, Espinoza v. Montana Dept. of Revenue, Elk Grove v. Newdow, and many more). It is a view that poses a dangerous threat to both liberty and equality. One of the reasons the Pilgrims came to the New World was to escape from an institutional church in which both the state and church acted as one—not to limit religious convictions to the Church and deny it a public role. The Founding Fathers recognized this idea and believed that the promotion of free exercise would not only promote civic virtue, but also contribute to the defense of human freedom. In James Madison’s Memorial and Remonstrance against Religious Assessments in 1785,
Madison passionately opposed the expansive role of government in a bill that would have diverted funds to a taxpayer’s preferred church. Madison stated:
“The establishment proposed by the Bill is not requisite for the support of the Christian Religion. To say that it is, is a contradiction to the Christian Religion itself, for every page of [the Christian Religion] disavows a dependence on the powers of this world: it is a contradiction to fact; for it is known that this Religion both existed and flourished, not only without the support of human laws, but in spite of every opposition from them.”
It was this view of government which prompted the Founding Fathers to continue to defend the idea of a properly checked government, one which promotes a civil society where multiple religions can contribute free from coercion.
As one of my colleagues has recently covered, the lawsuit against Gordon College by former professor Dr. Margaret DeWeese-Boyd is currently going to the Massachusetts Supreme Court.
Dr. DeWeese-Boyd was denied a promotion to full professorship after working at Gordon for seven years. She asserts that her outspoken criticism of Gordon College’s policies towards LGBTQ+ individuals led to this denial, despite the unanimous recommendation of the Faculty Senate. She also alleges gender discrimination in violation of the Massachusetts Civil Rights Act.
Gordon College claims that as a religious institution, it may apply for the ministerial exception when an employee in question is considered to have important religious significance. This is necessary, they claim, to prevent conflict with the Establishment Clause, since “[b]oth Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers” (Hosanna-Tabor v. EEOC). Gordon College used the recently decided Our Lady of Guadalupe v. Morrissey-Berru (2020) as further support for their position.
What is the ministerial exception? It is an exception that has historically been used to uphold free exercise and prevent the government from interfering in the affairs of religion, thus violating the Establishment Clause. It was applied and legitimized in Hosanna-Tabor v. EEOC, which prevented government interference in “claims concerning the employment relationship between a religious institution and its ministers.”
The existence of this court doctrine is not to say that religious institutions can avoid generally applicable law. For instance, Employment Division v. Smith guided the Court to uphold a law forbidding the use of peyote, a hallucinogenic drug, despite its use within Native American religious rituals. However, the distinction made between Smith and Hosanna-Tabor, as Chief Justice Roberts stated, is that “Smith involved governmental regulation of outward physical acts whereas Hosanna-Tabor concerned “governmental interference with an internal church decision that affects the faith and mission of the church itself.””
Those who side with Dr. DeWeese-Boyd seek to weaponize the state and silence Gordon’s ability to exercise its religious beliefs. They accuse those who side with Gordon College of using religion as a pretext to discriminate and promote hate. Freedom is pitted against empathy. Equality is pitted against free speech. This politically charged argument contributes nothing to a discussion on our values and what we desire the future to look like.
Why is this discussion important? Simply because the expression of opinions, thoughts, and worldviews cannot be confined solely to the private square; religion and civic life must be able to coexist for our pluralistic society to thrive.
As it pertains to the lawsuit, while one may debate whether Gordon College should or should not hold to various aspects of its Statement of Faith, it was nevertheless a fact that the school expected Dr. DeWeese-Boyd to not only profess the Christian faith, but also incorporate it in both the classroom and through her interactions with students (see Faculty Handbook).
Dr. DeWeese-Boyd was to train young Christians in a particular Christian worldview espoused by the College’s view on the Bible, their Statement of Faith, and their Life & Conduct Statement. She was evaluated on these things regularly by more experienced colleagues.
As a private Christian institution, Gordon College should be able to hire or fire (or to not hire or fire) ministerial employees, of which DeWeese-Boyd was clearly one. Restricting the school from acting upon its religious beliefs would constrain religious institutions to the private square, making free exercise something to be suppressed instead of something granted equal protection in the public square. Religiously based education is the entire reason for why private religious colleges exist. If the process of selecting faculty can be influenced by how the government interprets a certain set of religious beliefs, not only can the government interfere with religion, but it may also hold secular ideas as superior to religious ones.
Religiously based ethical convictions should have a say in the public realm of politics. These convictions work to counter toxic political climates. How, you might ask? Well, by allowing religious based interests to flourish; ones not based on material goods (like healthcare or economic growth, for example), individuals are afforded the ability to engage with politics in a way that can curb some of our deepest vices, such as the impulse to pursue power and wealth. Without the context for this restraint to thrive, the consequences would be tremendous.
Free exercise allows for religion to influence politics for the betterment of society. Our government must recognize the instrumental value religion plays in our society. It is for these reasons and more that I believe that the Massachusetts Supreme Court should rule in favor of Gordon College.