PEACEFUL COEXISTENCE

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288 Peaceful Coexistence Report citizens, not worse ones. 415 Colonies gradually began to accept the notion of religious protections for Quakers, and George Washington showed mercy to Quakers who refused to bear arms in the Revolutionary War. 416 This protection for the Quakers would benefit our nation later—the Quakers went on to play a public and prominent role in the abolitionist movement, and have continued to fight for civil rights and social justice to this day. And the Quakers are not alone—religious groups have been active in many important, and initially unpopular, social causes. Religious groups were active in the abolitionist movement, served as a central organizer of the civil rights movement, and continue to provide social services and act as a voice for the disadvantaged. 417 Religious groups, including small and unpopular religious groups, have existed in and served our nation throughout its history, and continue to do so today. “[V]irtually every religion in the world is represented in the population of the United States.” 418 Most individual congregations are small—half the churches in America have fewer than 50 regularly participating adults. 419 Judges and juries cannot be expected to be familiar with the teachings and makeup of each of these groups, and that unfamiliarity can cost a small congregation dearly. This is one of reasons why disputes over theological matters and the selection of ministers should not be entrusted to the judicial system. The modern ministerial exception is both a consequence of and a protection for religious diversity. This idea is at work in the Hosanna-Tabor decision, and it should also apply to less formal religious groups such as student groups organizing on college campuses. Without the right to govern their membership policies and select their own leaders, they cannot guarantee that their leaders will embody their message. We may not always like the messages such groups send, but our First Amendment does not ask whether people say things we agree with, only whether they possess a fundamental right to do so. If the First Amendment allowed us to interfere with unpopular speech we disagreed with, we could never even get to the point where we could discuss same-sex marriage as a society, and the civil rights movement would have faced even more arduous barriers. 415 This description is drawn from the longer account in Kevin Seamus Hasson, The Right to Be Wrong 45-67 (2005). 416 Id.; see also Margaret Hope Bacon, The Quiet Rebels: the Story of Quakers in America 73 (1969). 417 See, e.g., Carter, supra, at 83-98 (describing religious participation in social movements); John T. Noonan, Jr., The Believer and the Powers that Are 169-93 (1987) (discussing religious roots of Abolitionist movement); id. at 449-53 (discussing the history of the civil rights movement, including the importance of the SCLC and contributions from the American Friends Service Committee); American Friends Service Committee: Our Work, available at http://afsc.org/our-work (last visited Mar. 8, 2013) (describing organization’s work to promote peace and social justice). See also Shawn Francis Peters, Judging Jehovah’s Witnesses: Religious Persecution and the Dawn of the Rights Revolution (2000) (describing the group’s great contribution to civil liberties). 418 Hosanna-Tabor, 132 S.Ct. at 711 (Alito, J., concurring). 419 See Mark Chaves, Congregations in America 18 (2004).
Panelists’ Written Statements 289 Hosanna-Tabor might at first blush appear to be a conflict between religious freedom and anti-discrimination laws. But our Constitution, by protecting religious freedom, fosters both individual rights and diversity. As the unanimous Supreme Court said: “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way.” III. Lessons from Hosanna-Tabor and Other Conflicts Although I am here to address Hosanna-Tabor v. EEOC, the lessons drawn from this case can apply to other situations. As I mentioned above, the ministerial exception is distinct from the larger question of religious exemptions from general laws, but both are critical and historically important protections for religious freedom. We have seen an increase in the conflicts between religious freedom and government regulation. These conflicts take many forms. At the Becket Fund, we have defended Amish farmers facing charges because their traditional home building methods, although they have stood the test of time, do not meet modern building codes geared for technological innovation. We have asked the Supreme Court to hear a case for a Hutterite community in Montana which was specifically targeted by a state law mandating unemployment insurance coverage for its members—even though no member had ever filed a claim and the community holds all its property in common and takes care of its sick and injured itself. Protection for religious freedom, even when it conflicts with otherwise applicable law, is an important part of our nation’s history. 420 Such protections help religious groups, including minority faiths, to thrive. Without such protections, the Amish could be forced to give up 420 See, e.g., Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990).
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Table of Contents i Table of Conten
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Acknowledgment iii ACKNOWLEDGMENT T
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Executive Summary 1 EXECUTIVE SUMMA
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