Religious Liberty

by Peter J. Thuesen

The Supreme Court’s decision on January 11 in a major church-state case, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, nearly coincided with a special session at the ASCH Winter Meeting honoring the legacies of Edwin Scott Gaustad (1923-2011), a giant among historians of American religion and a specialist in First Amendment issues.

Though I never knew Edwin Gaustad personally, I remember seeing him at past ASCH conferences and have several of his books close at hand in my office, including The Great Awakening in New England (1957), George Berkeley in America (1979), Sworn on the Altar of God: A Religious Biography of Thomas Jefferson (1996), Church and State in America (1999; 2nd ed., 2003), and, of course, his monumental New Historical Atlas of Religion in America (revised with Philip L. Barlow in 2001).

I wish that Professor Gaustad, who died in Santa Fe last March, were around to comment on the Hosanna-Tabor decision.  The case is far from simple and will undoubtedly generate debate for years to come.  It involves a teacher at a Missouri Synod Lutheran parochial school who had to take a leave of absence after becoming ill with narcolepsy.  When the school asked her to resign her position altogether, she refused and threatened to pursue an employment discrimination claim based on a disability.  The school subsequently fired her, saying that as a “called” teacher who effectively served as a minister, she violated the church’s doctrine by pursuing legal action rather than trying to resolve the dispute internally.  The Supreme Court unanimously upheld the school’s action, citing the “ministerial exception” to employment discrimination laws.  Previously, that exception had been interpreted more narrowly to prevent scenarios such as a church’s being forced to retain an unwanted pastor.  Hosanna-Tabor now raises new questions about (1) who may be construed as a “minister,” and (2) what counts as a legitimately doctrinal exemption from anti-discrimination laws.

The case is the latest reminder that when it comes to defining the limits of free exercise, the devil is always in the details.  Indeed, important church-state cases have often arisen from seemingly inconsequential details – matters more mundane than a person’s employment discrimination claim.  Professor Gaustad put it memorably in the concluding paragraph to his Church and State in America (2003):

Sometimes the church-state cases reviewed here may look puny and barely worth worrying about: a 10-cent bus fare in New Jersey, a 50-cent peddling permit in Connecticut, a $5.40 annual tax bill in New York, a parade permit here, a schoolbook there.  But James Madison noted that the Bostonians’ refusal in 1774 to pay a threepenny-a-pound tax on tea was also just a piddling amount.  Yet ‘the people of the U.S. owe their independence and liberty,’ Madison wrote, ‘to the wisdom of descrying [discerning] in the minute Tax . . . the magnitude of the evil comprised in the precedent.’  To adapt a line from Michelangelo, religious liberty is made up of a series of trifles, but religious liberty is no trifle.

Though we can’t know what Professor Gaustad would have said about Hosanna-Tabor, his humane and accessible scholarship should be a model to us as historians of how to engage a wider public in thinking critically about momentous questions of religious liberty.


Peter J. Thuesen is Professor and Chair of Religious Studies at Indiana University-Purdue University Indianapolis (IUPUI), where he co-edits Religion and American Culture: A Journal of Interpretation.  His most recent book is Predestination: The American Career of a Contentious Doctrine (Oxford, 2009), which won the 2010 Christianity Today Book Award for History/Biography.

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