Breyer nails the Missouri Synod position on the ministry: She’s sort of like a minister

Over at Gottesdienst we are on the cutting edge of sitting around on Wednesday afternoons while our wives are at Parents’ Day waiting for SCOTUS transcripts to come out. First link has a few important quotations that I pulled out of the first half, including that absolutely perfect gem from Breyer. Second link is the whole thing.

 

+HRC


Comments

Breyer nails the Missouri Synod position on the ministry: She’s sort of like a minister — 96 Comments

  1. Does anyone have a copy of the following :

    Jun 20 2011 Brief amicus curiae of the Lutheran Church – Missouri Synod filed.

    Referred to on page 19 of the transcript you link to above

    “…I read the very excellent brief filed by the Lutherans that explained the nature of taking civil suits. …”

    Because that could provide fascinating reading as the LCMS claims it can sue its members in the festivities out west with the 4 ladies not so long ago.

  2. Feeling a little irritated now, maybe the realities of life is having an effect on my judgement right now… or typing on this phone.
    Is it the Confessional position to remove the designation Minister of Religion-Commissioned?
    Am I violating AC 14?

    This I do know. I teach about Jesus and Scripture day in and day out. I teach the Small Catechism day in and day out, we even pray the Litany. I do this on the playground, at lunch, during each and every subject, student council sports, volunteering at church, before school and after school, on the phone, on vacations and during the summer.I teach kids who do not know church. Many do not have a church, yet through the years I have seen the Holy Spirit work on these kids and many have been led to baptized by the Pastor.

    Go ahead and cheer this on and actually say what you really mean. Maybe just maybe the real issue is not our understanding of our titles,but our unclear and under explained definition of the Divine Call. If I am a regular teacher who is the same as any other teacher, what of the Divine Call? Are we just making it up?
    Will this affect the Pastors later?

  3. @Andrew #2
    Andrew, I don’t see anyone cheering on any side of this issue. Pastor Curtis’s point, if I understand him correctly, is that our synod has a messed up practice and understanding of “Ministry,” that this has been decades in the making (if not longer), and now we’re seeing the results play out in the United States Supreme Court. So I think you’re spot on when you say “maybe the real issue is not our understanding of our titles, but our unclear and under explained definition of the Divine Call?” That’s exactly the problem. I think you and Pastor Curtis are on the same wavelength on that point.

  4. vincentl :Does anyone have a copy of the following :
    Because that could provide fascinating reading as the LCMS claims it can sue its members in the festivities out west with the 4 ladies not so long ago.

    They claimed that they can do this only in property disputes. That was a property dispute.

  5. In 1955-57 we accepted the term ‘Commissioned Minister’ for tax purposes but it also signified a change in our doctrine of the ministry and with Feucht’s release in 1974 of his book ‘Everyone a Minister’ the watershed of this change exemplified the confusion of this Methodist understanding of the Office of the Ministry.

    It is quite funny that even in the Amicus Brief by the ‘Lutherans’ there is not a definitive doctrine of the ministry delineated. Please correct me if I am wrong.

  6. From reading the transcript it sounds like the Justices are leaning towards finding for the Church/School and against the teacher and the Justice Department. They were asking very probing questions about the ramifications to the Establishment Clause if they start telling churches who is a minister. They even brought up “everyone a minister” type churches. The school attorney got a little sidelined on that, but I thought the Justices were almost trying to help him make his case that this is a different situation..

  7. Luther talked about a “priesthood of all believers” in the “heavenly kingdom”, but that is a FAR cry from calling everyone a “minister” for legal purposes in the “earthly kingdom”. I feel the LCMS (and a number of other denominations) has stepped over a line in it’s expansion of who they call a “minister”, and the SCOTUS wants to put a curb on it in every denomination.

    It reminds me of the episode of the “Simpsons” where Homer decides to become a “Minister” to cash in by charging money to perform gay marriages. He goes on line, enters his credit card number on the web site, and instantly a clerical collar prints out. By “loosening” the definition ofthe term “minister” we have opened ourselves to a hornet’s nest, and that’s not good….

  8. Looks like Dr John Warwick Montgomery will be on Issues Etc. today talking about the case. As an attorney who has argued before the Supreme Court he will likely have some great insight on how he thinks it went.

  9. Amid the ‘ministry’ mess in the LCMS, isn’t the real issue here whether or not churches can legally discriminate against the ADA and civil rights acts?

  10. vincentl :Does anyone have a copy of the following :
    Jun 20 2011 Brief amicus curiae of the Lutheran Church – Missouri Synod filed.
    Referred to on page 19 of the transcript you link to above
    “…I read the very excellent brief filed by the Lutherans that explained the nature of taking civil suits. …”
    Because that could provide fascinating reading as the LCMS claims it can sue its members in the festivities out west with the 4 ladies not so long ago.

    http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_petitioneramculutheranchurch-missourisynod.authcheckdam.pdf

  11. Something to ponder from Luther’s essay, “Freedom of A Christian”:

    “You will ask, ‘If all who are in the church are priests, how do these whom we now call priests differ from laymen?’ I answer: Injustice is done those words ‘priest,’ ‘cleric,’ ‘spiritual,’ ‘ecclesiastic,’ when they are transferred from all Christians to those few who are now by a mischievous usage called ‘ecclesiastics.’ Holy Scripture makes no distinction between them, although it gives the name ‘ministers,’ ‘servants,’ ‘stewards’ to those who are now proudly called popes, bishops, and lords an who should according to the ministry of the Word serve others and teach them the faith of Christ and the freedom of believers. Although we are all equally priests, we cannot all publicly minister and teach. We ought not do so even if we could. Paul writes accordingly in I Cor. 4 [:1], ‘This is how one should regard us, as servants of Christ and stewards of the mysteries of God.”

  12. My take, for what it may be worth, is that the government obviously meant the ministerial exception to apply to clergymen (pastors, priests, rabbis, etc.). Our day school teachers and DCE’s, whatever else they may be, are not clergymen and we all know it. But in order to reap tax benefits for our school teachers and DCE’s, back in the 50’s we convinced ourselves that no harm would be done in telling the government that they are “ministers” even though the government was using that term in a way that referred to clergymen and we knew it. This case is only one small way in which we are reaping the whirlwind for our duplicity.

    It would be better to call a thing what it is: these are teachers, acting not in the place of the NT Office of the Ministry, but rather in the place of parents teaching the faith to their children. That is a high calling indeed – it has a whole commandment about its authority! Walther derived the office of school teacher from the Office of the Ministry and made teacher an “auxiliary office”: and that is why he said only men could be school teachers in this sense! The modern MO Synod has gone its own way, departing from Walther, in allowing for these “women ministers.” Would it not be better to see these teachers as derivative not of the Office of the Ministry but of the Office of Parent? This notion is at once, in my opinion, more firmly Biblical and much less confusing. Read the LCMS brief yourself and see if you are convinced by the exegesis of Acts 6…

    Ah, but that would have implications for the tax code. . . what a mess!

    +HRC

  13. @Rev. Weinkauf #9 : “Amid the ‘ministry’ mess in the LCMS, isn’t the real issue here whether or not churches can legally discriminate against the ADA and civil rights acts?”

    Well, yes, according to the Sixth U.S. Court of Appeals decision, which concluded (pp. 17-18):

    In the instant case, Hosanna-Tabor has attempted to reframethe underlying dispute from the question of whether Hosanna-Tabor fired Perich in violation of the ADA to the question of whether Perich violated church doctrine by not engaging in internal dispute resolution. However, contrary to Hosanna-Tabor’s assertions, Perich’s claim would not require the court to analyze any church doctrine; rather a trial would focus on issues such as whether Perich was disabled within the meaning of the ADA, whether Perich opposed a practice that was unlawful under the ADA, and whether Hosanna-Tabor violated the ADA in its treatment of Perich. As Plaintiff notes, the LCMS personnel manual, which includes EEOC policy, and the Governing Manual for Lutheran Schools clearly contemplate that teachers are protected by employment discrimination and contract laws. In addition, none of the letters that Hosanna-Tabor sent to Perich throughout her termination process reference church doctrine or the LCMS dispute resolution procedures.

    Furthermore, this Court would not be precluded from inquiring into whether a doctrinal basis actually motivated Hosanna-Tabor’s actions. See, e.g., Geary v.Visitation of Blessed Virgin Mary Parish Sch., 7 F.3d 324, 329 (3d Cir. 1993) (finding that the First Amendment did not preclude the court from “determin[ing] whether the religious reason stated by [the school] actually motivated the dismissal”); DeMarco, 4 F.3d at 171 (noting that a court can conduct an “inquiry . . . directed toward determining whether the articulated purpose is the actual purpose for the challenged employment related action” without “calling into question the value or truthfulness of religious doctrine”).

    Because the ministerial exception does not bar Perich’s claims against Hosanna-Tabor, we VACATE the district court’s order entering summary judgment on behalf of Defendant and REMAND with instructions that the district court make a finding on themerits of Perich’s retaliation claim under the ADA.

    But, as we have seen in the past several decades, the SCOTUS has freed itself to create new laws and recognize new “rights” without having to rely on the other two branches of government… or the Constitution. So it’s sort of a crapshoot as to which way the SCOTUS will go on this case; they could make the right decision for the wrong reasons, or the wrong decision for the right reasons.

  14. There is another issue in the transcripts that I find scary. Our attorney is declaring the Dispute Resolution Process as the “doctrine” of the synod. Since when???

    It is our ecclesactical rule but it is not “doctrine”. Do we violate the doctrine of the church if we file suit? Did Luther violate the doctrine of the church when he appealed to the princes? This is a distrubing notion.

  15. I am somewhat concerned that Mr. Laycock may have shot himself in the foot by raising arguments of both office and function. There may be functional arguments, and others may raise those functional arguments should a case arise, but it is beyond the scope of our doctrine to speak of ministers in a functional way. They hold an office – the Divine Office or one auxiliary to it. (@Pr. H. R. Curtis #13 I would argue that the teaching office lies at the nexus of the Pastoral Office and the Parental Office, and, like many of the lower auxiliary offices have been in the history of the Church, may be occupied by either a man or a woman.) Whether or not the IRS regulations were originally intended solely for pastors, the kingdom of the left has openly and knowingly, without subterfuge or deception, recognized called religious teachers as ministers for quite some time now.

    One of my favorite moments in the transcript is on p. 46 where Chief Justice Roberts reacts to Mr. Dellinger’s invoking the position of the DOJ brief regarding whether a person is a minister:

    MR. DELLINGER: …the principal reason is she carries out such important secular functions in addition to her religious duties —
    CHIEF JUSTICE ROBERTS: I’m sorry to interrupt you, but that can’t be the test. The Pope is a head of state carrying out secular functions; right. Those are important. So he is not a minister?

    Function is not the test.

    Another item that jumped out at me – which was by no means central to any argument but is a bit of a hobby-horse of mine – came at the top of p. 35 when Ms. Kruger noted:

    It is a church that has decided to open its doors to the public to provide the service, socially beneficial service, of educating children for a fee, in compliance with State compulsory education laws. And this Court has recognized in cases like Bob Jones that church- operated schools sit in a different position with respect to the — the permissible scope of governmental regulations, the churches themselves do.

    By charging tuition, a school is no longer an arm of the work of the congregation and is a public accommodation, subject to all manner of regulation and interference from the state. Why do Lutheran congregations have schools if they are not an extension of the mission of the congregation? If they are an extension of the mission of the congregation, why do they charge tuition? Would you impose an admission price to the worship service? Would you have bouncers at the communion rail collecting a cover charge? It costs money to conduct the Divine Service just as it does to run a school. Why is tuition not as much an anathema for our day schools as it is for our Sunday Schools? ***dismount hobby horse***

    It will be interesting to see how SCOTUS rules. I have long heard reporters and analysts try to predict outcomes based on oral arguments; they’ve tried and failed. Justices love to play devil’s advocate during oral arguments. You almost have a better chance of predicting the decisions based on previous decisions of the court rather than the tone of oral presentations.

  16. Roger Gallup :
    It is our ecclesactical rule but it is not “doctrine”.

    I do not know that that is a distinction that is made under the law.
    And the “doctrine” is that we do not take each other to court except as a last resort. The DRP is how that doctrine plays out (however limpingly inadequate it may be).

  17. A Missouri Synod congregation, who trivially deposed a member of the synod from her called position as a commissioned teacher, now has their lawyer explaining to non-Lutherans and non-Christians on the U.S. Supreme Court the Missouri Synod’s understanding of the doctrine of church and ministry under the Holy Scripture and the Lutheran Confessions.

    As the wedding officiant, Rev. Dr. Mosby (played by Leo G. Carroll in Walt Disney’s The Parent Trap, 1961), said [at +2m20s] after finding the groom with his ex-wife, wearing only a loose-fitting bathrobe, leaning over him on the sofa, while his bride was waiting outside:

    “I find this situation fraught with humor. Quite out of the everyday, as we say, heh, heh?”

  18. @Pr. H. R. Curtis #13
    But the difficulty with what you suggest, Pr. Curtis, is that deriving the office of Lutheran School teacher from the Office of Parent *still* excludes the secular court because it “office of Parent” is something *theologically* defined. And when all is said and done, within the context of a Lutheran school, the office of teacher, even if it is considered to be primarily “in loco parentis” (or however you spell it), is *still* within the context of the church. Especially when we remember that it is the parents’ (father’s) responsibility to teach their (his) children the Faith. (As in the Small Catechism–“as the head of the family should teach them/it in a simple way to his household.”) So, one might say that a Lutheran school teacher acts “in loco parentis”, but *also* on behalf of the church, since these 2 estates touch on each other in this responsibility.

    Beyond that, Ms. Perich did, whether she was consciously aware of it or not (she should have been!), accept certain changes in her status when she accepted what we as a church body have established as the category of “commissioned minister”. And that includes the idea that she ought to work within the adjudicatory system *within* the church body.

    To be sure, that “adjudicatory system” is a huge mess–and this case might serve as one example of why we need to return to the system (or something essentially similar) as it stood prior to 1992.

  19. A Missouri Synod congregation, who trivially deposed a member of the synod from her called position as a commissioned teacher, now has their lawyer explaining to non-Lutherans and non-Christians on the U.S. Supreme Court the Missouri Synod’s understanding of the doctrine of church and ministry under the Holy Scripture and the Lutheran Confessions.

    And *that* is the real issue–was it a “trivial” deposition or not? But the point is that by accepting the colloquy into the category of “commissioned minister” (regardless of whether we think we should have such a position, and regardless of whether we consider the colloquy requirements adequate or not–other valid concerns, to be sure) a teacher–and for that matter the school!– is agreeing to follow the *internal* process for dispute resolution.

    The whole situation sounds to me (from my limited knowledge, to be sure) like something to which I reply, “A pox on both your houses!”

  20. Maybe we should have some lawyers talking about this. I wouldn’t think that civil law is exactly the forte of most people on here.

  21. @Rev. David Mueller #20 : “And *that* is the real issue–was it a “trivial” deposition or not?… a teacher–and for that matter the school!– is agreeing to follow the *internal* process for dispute resolution.”

    Then for what non-trivial reason did the principal tell Perich on February 22, 2005, that she would likely be fired as teacher? And for what non-trivial reason was there a letter the same day from the Board of Education describing Perich’s conduct as “regrettable” and indicating that they would be reviewing the process of rescinding her call on account of her disruptive behavior that day?

    And for what non-trivial reason on March 19 did the Board state they would request the congregation rescind her call for her behavior on Feb. 22, which they felt had “damaged beyond repair” her working relationship with Hosanna-Tabor? For what non-trivial reason on March 21, did the congregation not take up Perich’s counsel imploring Hosanna-Tabor to seek a peaceful resolution? And for what non-trivial reason on April 10 did the congregation deposed Perich from her call?

    It wasn’t until May 17 that Perich filed an ADA complaint with the EEOC. And it wasn’t until April 10, 2008, that Perich intervened in the case with two counts of retaliation against Hosanna-Tabor; so those non-trivial actions can’t be used as an excuse.

  22. What you want to do with such a suit depends, in part, on what remedy the plaintiff seeks. Money? Her job back? Which is more valuable to you: money, or having her gone? After you clarify your values, then you may be able to see your way out of the situation without giving the secular courts jurisdiction over church matters. Once it secular court, it will never get any easier trying to dovetail doctrine and secular law. The pitfalls of warping doctrine to your future detriment for the sake of “victory” in the immediate case always should be considered in the list of values along with money, having her gone, etc. Nine times out of ten, paying her off will be better than what the courts will do to you. Your legal representatives, because of their positions in the profession, also bring to the situation another list of values of their own that impinge on how your position is pleaded. Purity will be lacking. Its a mixture of too many things.

    Settle quickly with your adversary on the way to court.

  23. “It would be better to call a thing what it is: these are teachers, acting not in the place of the NT Office of the Ministry, but rather in the place of parents teaching the faith to their children.”

    That is not the doctrinal position of the Lutheran Confessions, Martin Luther, or The LCMS, Pastor Curtis. It may be your private opinion, but it does not adequately represent the position of The LCMS.

    You are also neglecting the point Luther makes that PASTORS are acting in parents. He says that all offices derive from that of parent.

    The either/or approach you seem to be advocating is not adequately reflecting the doctrinal position of the Church of the Augsburg Confession.

  24. I’m sorry to read this thread, which is reflecting a woeful understanding of what this case is really about: the government’s right to interfere in the Church self-governance. This is a key case for the free exercise rights guaranteed under the First Amendment of the Constitution.

  25. If a called commissioned teacher is raped by another called church worker, must she first use the synod’s dispute resolution process, or may she initially call the police and file a criminal complaint without the threat of being deposed from her call? Could she be deposed from her call even if she only threatens to call the police?

    Is there a line running across the area of illegal acts which must be crossed before the Missouri Synod relinquishes its claim of authority within the dispute resolution process to act as judge/jury in regard to such an illegal act?

  26. @Rev. Paul T. McCain #24
    Petitio principii, my gun toting friend (Did I tell you I got my C&R license?). This is just the point under discussion. As I admit above, I know what I’m advocating is not what Walther said. But I also claim that the modern MO Synod is saying is also not saying what Walther said – otherwise, why did Walther say women could not be school teachers and the modern MO Synod says it’s OK?

    Second, the point at issue is just what the Confessions say about the ministry and that is a hotly debated topic for which Luther’s comments can be instructive but not definitive. We interpret, I hope!, Luther in light of the Confessions instead of the other way around. Where do the Confessions talk about the auxiliary office of the female day school teacher again?

    I just don’t see the modern MO Synod doctrine of auxiliary offices as contain in the LCMS brief in the Scriptures of the Confessions. Hie stehe ich. I’m very open to learning more and being convinced, but I am not open to rolling over to whatever the Synod says today for “popes and councils” – presidents and conventions – have erred: and they manifestly stand in contradiction to each other across history. 1880: female “minister-teachers” are not OK. 1980: they are. That’s some cognitive dissonance that can’t stand the smell test.

    +HRC

  27. Dear BJS Bloggers,

    I don’t know if the following will help, but it has helped me understand how our present understanding of parochial school teachers as “Commissioned Ministers” is just fine.

    Lutherans profess and operate with the doctrine of the Two Kingdoms. This means that the same thing can be called by different names, and may very well be two different things in those two spheres.

    So, for example, in the Kingdom of the Right, I am a bad person under God’s judgment (and only saved by grace and the merits of Christ); but in the Kingdom of the Left I am a good person, a good neighbor, and a bona fide citizen of my community.

    So, for example, a criminal in the Kingdom of the Left, may also have come to repentance and faith, and be a saint in the Kingdom of the Right. Jesus and Paul were criminals in the Kingdom of the Left; and the one was the divine Son of God and the other the greatest of Christian saints.

    We all know these things. But we don’t always draw out their implications.

    One implication of the Two Kingdoms theory is that in the Kingdom of the Left LCMS parochial school teachers, by their vocation, meet the government-created-and-interpreted test for who is a “Minister of Religion.” Their vocational documents include religious teaching and religious influence and religious morality as a requirement for their job. And most teachers spend a fair amount of time actually fulfilling those three vocational requirements. So there is no deception by the LCMS before the government whether or not they are truly “Ministers of Religion,” as defined by US Law.

    But in the Kingdom of the Right, parochial school teachers do not meet the test of the traditional Lutheran definition of “minister,” which is public preaching, public administration of the Sacraments, performance of official acts, conduct of public worship, and private pastoral care. A few teachers and congregational members may think that teachers are equal to pastors because they have the term “minister,” but when they do this they commit a “definitional fallacy,” i.e., they are confused by word definitions. Our doctrine is not wrong because a few people get confused by terms.

    Laws change in the Kingdom of the Left; the Word of God does not change, and that determines things in the Kingdom of the Right. Because laws change in the former kingdom, the church needs to review its own position, to make sure that it is cooperating as much as possible with the government. This is what the LCMS did in 1955, and what it may have to review again, if this case results in changes in the law.

    I will repeat and augment what I told our Indiana District Executive for Schools, John Mielke, about a year ago: “You and your people, i.e., the LCMS principals and school teachers, are the most important outreach ministry of our synod — bar none! You reach out to and religiously shape the next generation, you are genial examples of Christian living to our young people, and you bring in dozens of whole families into the sphere of the church every year, as their kids enter our schools. And that is not to mention all the volunteer hours our teachers offer, free of charge, to the work of the church!”

    Yours in Christ, Martin R. Noland

  28. @Carl Vehse #26

    To my mind, this was precisely the issue. It appears to be a blending of the Two Kingdoms, with the Christian citizen arguing for where the lines lay. Our cloudy LCMS positions regarding the very clear Article XIV, seem secondary in this case. It really sounds to me, like a church related function, trying to test the system regarding how much secular law they can dodge (in this case, federal labor law.) Just how much a citizen of the state is the Christian or the Church?

    My understanding, is that the Christian and the Churches are subject to all the laws of the land, unless those laws directly conflict with Holy Scripture; i.e., I cannot claim to be above traffice laws, if I speed through a stop sign on my way to visit a parishioner in the name of Church business… regardless of my vocational office(s).

  29. Did I tell you I got my C&R license?

    Congrats, the ATF has managed to lose my first app and is taking a while with my second. I’m taking my CCW class on the 19th.

    Was there something else to talk about?

    oh yes

    No, my friend, my point is that you are, again, selectively St. Martin of Eisleben. For you will see he anchors the institution of the pastoral office BOTH in Christ’s mandatum and the institution of parent, so your point in trying to say that the school teacher is only an extension of the parent and is not in any way an extension of the church’s predigtamt is not a good way to proceed.

    But be as this all may well…be..ah, well..at any rate…

    The issues in this case have little to do actually with LCMS squabbles over the doctrine of the ministry, in fact must have nothing to do with it…that’s the point of the case.

    The government can keep its big nose out of the Church’s business, per the First Ammendment to the Constitution of the United States of America.

    If the church south of the gas pump wants to ordain a new pastor every weekend, from this perspective, that’s just perfectly fine by me. And Uncle Sam should have nothing to say about it.

    So you can roll over, squirm, stand on your head and scream over what you see as the wrongs/rights of the LCMS position. Just keep the federal government out of our business on these issues.

    That’s the point.

    Happy hunting, by the way. You going out with Collin to try to bag a few this Fall?

  30. insert: “quoting” before St. Martin of Eisleben … I do with Norm would add an edit function here!!

  31. Mr. Bivens and I will be out in a few days. Mrs. Curtis is due to give birth to a child tomorrow!

  32. Oh, wait…Ben is going out with Bivens so Curtis can attend the blessed event. That’s very nice of him, and you. Is Collin using a handgun? He was explaining to me how fun that is.

  33. @Rev. Paul T. McCain #31
    St. Martin of Eisleben and I agree on many things – including the fact that not everything he wrote is necessarily worth our assent. “Regarding [the plan] to collect my writings in volumes, I am quite cool and not at all eager about it because, roused by a Saturnian hunger, I would rather see them all devoured. For I acknowledge none of them to be really a book of mine, except perhaps the one On the Bound Will and the Catechism. [LW 50:172-73]”

    I don’t see where the NT Office of the Ministry is derived from the office of Parent in the Scriptures or the Confessions. I did not subscribe to the Genesis Lectures, fascinating and helpful though they be. (And I don’t see how LC 158-64 “derives” the NT Office of the Ministry from the Office of Parent, though it relates our obedience owed to each, which makes perfect sense to me.)

    Here’s the rub: why should we derive the office of school teacher from anything? We are getting pretty far from the NT text, yes? Why do we feel this need to make definitions which are quite far removed from anything we read about in the NT? Why not do what the Confessions say and stick with “canonical polity” and those clear definitions of what a minister is?

    And still: no one wants to respond to what I think is my point that makes clear the biggest problem: Modern MO is not saying what Walther said. Will the real MO Synod please stand up?

    But you are right about this case: this is a religious liberty case. As a matter of fact, I think it should be bigger, a simple “liberty case.” I believe the whole ADA, and a host of other things, is unconstitutional for everybody not just the church. But fat chance that that view is going to win the day before SCOTUS.

    In issues that will more likely find resolution this century: Did you remember to send your letter to your local chief of police and pay with a credit card? Mine went through lickidy split.

    +HRC

  34. @Rev. Paul T. McCain #36
    Now we’re off topic. . .

    The induction is on hold…so I’m staying close to home to wait it out.

    Mr. Bivens and I have been out a couple times, but no luck.

    Pr. Ball and Mr. Bivens are making a long trip to get after those big bucks of So IL that I’m forgoing to await this baby.

    Good thing I’m the one moderating these comments….

    +HRC

  35. >>>Did you remember to send your letter to your local chief of police and pay with a credit card? Mine went through lickidy split.

    Yes, when you say “lickidy split” how fast was the lickidy or the split?

  36. 42 U.S.C. Subchapter I, § 12113 (d) states in part: “Under this subchapter, a religious organization may require that all applicants and employees conform to the religious tenets of such organization.”

    This ministerial exception is not a license to discriminate for causes outside of the religious tenets of the religious organization. Reasonable people, courts, and a religious organization could probably agree together to recognize some (even arbitrarily narrow) set of illegal discrimination acts to be outside the religious tenets of such a religious organization.

    However, as yet another example of unintended consequences, this creates a major loophole that allows a religious organization to essentially include ANY/ALL discrimination or ANY/ALL other illegal acts or even ANY/ALL complaints of such alleged illegal acts to be within its religious tenets, under the threat of deposing a complaining member. That loophole is the religious organization claiming a tenet requiring all organizational members must use the organization’s dispute resolution process for such complaints of alleged illegal or criminal acts, rather than reporting them to government regulatory, law enforcement, or judicial entitites.

    And in the Hosanna-Tabor case, the religious tenet appears to include forbidding a member from even threatening to report to government regulatory, law enforcement, or judicial entitites.

  37. From the SCOTUS transcript, p. 12:

    JUSTICE SCALIA: Is a sham different from a pretext?

    MR. LAYCOCK: Well, I — I certainly meant something different from a pretext. A sham is more extreme, and it goes to a different point in the analysis. You can decide whether she is really a minister. That’s a threshold question the courts must decide. And if we have a person with a ministerial title who is doing nothing at all religious or ministerial, if we have a church who tries to say everyone who ever worked for us or ever may is a minister, the courts can deal with those cases if they –

    JUSTICE SCALIA: So you would allow the, the government courts to probe behind the church’s assertion that this person is a minister? You would allow that, right? But once it is determined that the person is a minister, you would not allow the government to decide whether the firing was a pretext?

    MR. LAYCOCK: That’s right.

  38. Sorry for hopping into the middle of your discussion fellas.

    Heath, blessings to you and Rebekah.

    I just wanted to drop in my two cents on the discussion concerning the office of parent. Well not my two cents… LC paragraph 141-142 on the Fourth Commandment, “In this commandment belongs a further statement about all kinds of obedience to persons in authority who have to command and to govern. For all authority flows and is born from the authority of parents. Where a father is unable alone to education his child, he uses a school master to teach the child. If he is too weak, he gets the help of his friends and neighbors…So all whom we call “masters” are in the place of parents and must get their power and authority to govern from them.”

    Later in this discussion of the 4th Commandment (paragraph 158), Luther speaks of 3 types of fathers – in blood, in office (government), and spiritual (Pastor). Taken together, it would seem Luther is arguing that all offices of authority come from the office of parent, though he doesn’t draw the line as neatly from parental authority to the Office of the Ministry.

    How this fits into this discussion, I’ll let you guys hash out.

    Happy Hunting!

  39. @Carl Vehse #22
    I’m not judging whether or not it was trivial. I’m saying that this is what the *synodical* process should have been allowed to decide.

    There are *2* issues here–the original one, regarding whether H-Tabor treated Ms. Perich properly (and I have no opinion on that), and the issue before the Supreme Court–regarding whether the secular courts ought even to mess with this.

  40. @Rev. David Mueller #45 : “There are *2* issues here–the original one, regarding whether H-Tabor treated Ms. Perich properly…”

    The original issue actually is whether H-Tabor treated Ms Perich legally.

    And, who, if not the secular courts, ought to “mess” with what is legal and what is not, especially when faced with what is a legal loophole.

  41. @#4 Kitty #29

    According to Leviticus 3:17 and Leviticus 19:19, one should not eat a rare-cooked steak while wearing clothing of polyester/cotton, nylon/wool, or other blended fabric.

  42. >> the government obviously meant the ministerial exception to apply to clergymen . . . Our day school teachers and DCE’s, whatever else they may be, are not clergymen and we all know it.

    It isn’t as obvious as you think. What about nuns? Or, closer to home, deaconesses?

    I believe you will find the IRS allowed “Commissioned Ministers” this exemption for the same reason that I, living in my own home, do not pay federal income tax on my housing expenses. Because at one point there were larger numbers of Roman Catholic clergy as compared to “Protestant” who received their housing expenses for free. In order not to favor one religion over another the IRS either had to tax Roman Catholic clergy on the housing benefits they received or give a similar exemption to clergy of other bodies, and they chose to do the latter.

    Likewise, the non-ordained parochial school teachers of the Roman Catholic Church–nuns and monks–had the status and received the tax benefits of clergy. In order not to favor one religion over another the IRS either had to disallow them as clergy or give a similar exemption to non-ordained parochial school teachers of other bodies, and they chose to do the latter. The extension to other workers such as deaconesses follows the same logic . Monks and nuns serve in a very wide variety of ways, and for example “permanent deacons” and catechists in the Roman Catholic Church qualify for the clergy housing exemption.

    The Apostle commands, “If you owe taxes, pay taxes.” The government would be entirely within its rights to withdraw this exemption. It is such an accounting headache I think many ministers would not object. However, as I citizen, I would expect under our system of government that the application would be equal and consistent among religious bodies.

  43. @Pastor Jason Wagner #44
    Hi Jason,

    Yes, that’s why I referenced para 158ff above where it actually talks about spiritual fathers. These homiletical comments by Luther hardly “derive” the Office of the Ministry from fathers – although they do point to a sort of unity of _authority_ ultimate deriving from “Him from Whom every fatherhood takes its name.” God is Father – that’s a big deal and a big theological concept.

    But saying that the Office of the Ministry is derivative of any other office is another matter. In what sense is the authority to conduct the Lord’s Supper derivative from a father’s Office? Even pagans have fatherhood – does their fatherhood somehow involve the authority to baptize?

    No – what Luther got right was the notion of authority connecting all “fathers” whether blood, office, or spiritual. But that broad notion of authority is hardly a derivation of the NT Office of the Ministry. We might say it this way: authority is a paternal word.

    And again – the Confessions stress three passages above all in the institution (derivation, if you will) of the Office of the Ministry: Matt 28, Luke 10:16, and John 20. That’s where our notion of where the Office of the Ministry derives must begin, and most probably end.

    +HRC

  44. @Rev. Kevin Vogts #48
    I didn’t say we were the only ones being duplicitous, nor do I know the details of exactly what the Roman Church claims about it’s nuns. Do they claim that they are “ministers”? They don’t have to do that to opt out of SocSec, that specifically mentions “religious and Christian Scientist practitioners.”

    It was very clear from what the Justices were saying yesterday that when they heard “minister” they were thinking “clergy” – hence all the references again and again to Roman priests.

    And what is all the world hearing and thinking now that this case about an LCMS female minister is in the news?

    +HRC

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