The civil liberties union made a mistake in taking this case, because it is now in the position of arguing that an anti-discrimination law overrides the First Amendment right of free exercise of religion. Among other things, free exercise means that a church has an absolute right to designate those who speak in its name. If it can’t do this, then its religious message is corrupted, and the constitutional rights of its members violated. This ministerial function clearly covers priests, nuns and school teachers. In this case, the church didn’t fire McCusker because she is a sinner. It believes we are all sinners. It fired her because a visibly pregnant and unmarried authority figure dealing with young children is conveying a message-this is all right-that the church does not want to send. So McCusker has to lose. Neither the state nor the courts can control the religious message.
* In 1987, the Supreme Court, in a unanimous decision, went beyond the protection of the ministerial function and ruled that nonprofit religious organizations may legally discriminate on religious grounds in hiring, even if the job involved is a secular one (Presiding Bishop of The Church of Jesus Christ of Latter-day Saints v Amos). I’m not sure a Baptist church should be allowed to fire a janitor for converting to Methodism, but that’s the law.
There’s a broader problem: many institutions are now using anti-bias laws and regulations to trample the ministerial function. More than a dozen universities have punished their campus evangelical groups, either cutting off funds or withdrawing recognition, because these groups do not allow declared homosexuals to become officers. The universities (or their student tribunals) do this because their regulations say that campus groups must allow all students to join and run for office. The Evangelicals usually say that gay membership is fine, but a gay officer is not acceptable because the group must be able to control its core religious message-in this case that homosexual sex is forbidden by the Bible. I first noticed this problem at Tufts in 2000 when a bisexual woman in the campus Christian Fellowship, who had said she accepted church teaching on sex, changed her mind and announced that she thought homosexuality is compatible with Scripture. She wanted a leadership position. The Fellowship said no and was then “de-recognized” by student authorities. University officials let it happen, saying it was not the administration’s concern.
Some campuses elevate anti-discrimination rules over religious freedom in large part because gays are very powerful on campus and Christians are not. In effect, Evangelicals are being punished for failing to have the views of the dominant campus culture. Someone should explain to the campuses (and to McCusker’s supporters) what religious freedom means.