Ministry Freedom in the Balance

When I read the e-mail in May from a legal webcasting group that regularly advises lawyers on current, but usually mundane, employment issues, I knew it was one more bit of evidence that the freedom of Christian organizations and ministries in America is in jeopardy.

The notice publicized a webcast advising employment lawyers that it might be time to revise their business and organizational clients’ “workplace policies to be compliant” with laws regarding “same-sex relationships.” The guest speaker was with the National Center for Lesbian Rights.

The agenda of homosexual-rights groups has become so mainstreamed in this country that the rights of Christian ministries to hire people using faith-based criteria will now be the next battleground.

In a separate development earlier this year, the Equal Employment Opportunity Commission (EEOC)—the federal agency enforcing employment discrimination laws—announced a shocking decision: From now on, employers who consider the fact that a potential or active employee is a “transgender” person will be guilty of employment discrimination under existing federal law. Current federal law provides no explicit protection for people who surgically alter their sex. But a few comments in a handful of legal cases apparently provided enough justification for the EEOC’s new, radical decision to treat transgender status as another form of gender discrimination.

Whether Christian ministries can terminate employees who declare themselves transgender is unclear at best. Current law exempts religious employers from lawsuits only when the ministry and employee conflict over matters of “religion.” However, where the complaint is over an employee’s gender, Christian groups are not exempted.

The EEOC’s reasoning would leave Christian ministries nearly defenseless in this area.

The head of the EEOC, Chai Rachel Feldblum, was appointed by President Barack Obama in 2010 and has been a longtime homosexual-rights activist. She signed a 2006 manifesto urging recognition for radical new forms of marriage—including polygamy—but withdrew her signature in 2009 when nominated to head the federal employment discrimination agency.

She has also been an ardent supporter of ENDA, the Employment Non-Discrimination Act, a gay-rights bill that has been repeatedly introduced in Congress, though not yet passed.

ENDA has an anemically weak exemption for religious groups that mirrors the current exemption in federal employment discrimination law. The real problem surfaces when we apply this exemption language to ministries that refuse to hire homosexual, lesbian, or transgender people. Though the Christian organization would argue it should be exempt because its decision was a matter of religious faith, the complaining party would cry “gender discrimination,” a category where religious groups generally do not get a pass.

I pointed out this dilemma a few years ago when testifying against ENDA in the U.S. Senate and House of Representatives. Of course, the pro-ENDA law professors who also testified balked at my scenario, saying it wouldn’t happen. But the EEOC decision has proven there is a real and substantial risk that the rights of conscience of Christian organizations are under attack.

This is not an isolated instance. President Obama’s Office of Faith-based and Neighborhood Partnerships issued new guidelines that make it harder, perhaps even impossible, for Christian nonprofit organizations to provide community or social services with government grant money and still maintain their programs of evangelism, worship, or Bible teaching. Neither has the White House assured that such organizations will be permitted to hire and fire staff on the basis of religious doctrine or faith.

In October 2011, an assistant solicitor general, appointed by the administration and arguing for the EEOC before the U.S. Supreme Court, made the astounding claim that the First Amendment provides almost no protection for religious ministries regarding employment decisions. Happily, in a stinging rebuke, the high court disagreed. It ruled unanimously that a private religious employer is exempted from all federal discrimination laws regarding the selection of its “ministers” (pastors in churches, rabbis in synagogues, etc.). Unfortunately, the decision would not directly protect employment decisions regarding middle management or lower-level ministry staff.

As the freedom of Christian ministries hangs in the balance, we are reminded of the importance of electing leaders who embrace the same vision our Founding Fathers had for protecting the fundamental rights of faith. Furthermore, we must always remember what our Savior told the apostle Peter: “I will build My church, and the gates of Hades shall not prevail against it” (Mt. 16:18).

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