Does Clarence Thomas belong on the Supreme Court?

I am grateful today for a chance to take a break from the internecine political wars, knowing full well that the next 10 days will give me plenty of opportunities to listen to drawling Suthunahs praising or damning the candidates in their turn.  I caught a bit of it today and it struck me how different – radically different – two states can be and at the same time have similarities.  California and South Carolina are both ocean-side states in relatively mild climates with yacht clubs and great golf courses and long colorful histories.  But they couldn't be much more different culturally and still be on the same continent.   I haven’t thought deeply about it and there are other things on my mind today but it might be worth pondering as the primary gets closer.

Two things jumped out at me today when thinking about topics; the ten year anniversary of the Guantanamo Bay Detention Center and the Supreme Court decision in what will no doubt come to be known as Hosanna-Tabor.   Let’s tackle the latter first as there is less to say about it. 

The decision known as Hosanna-Tabor involved a teacher at a Lutheran school in Michigan who developed narcolepsy and took a medical leave of absence to start the school year.  In January, after her recovery, she notified the school of her intent to return in February.  The school administration told her that her position had been filled in her absence and, in a clear violation of the Americans with Disabilities Act, refused to allow her to return.  Instead they requested that she resign.  She refused to do so, showed up at the school as she had announced, made a noisy fuss and was promptly fired.  The case revolves around a precedent called a “ministerial exception” , a tangent of the First Amendment, which essentially says that a religious order has the right to decide who can legitimately act as a minister and who can’t and that makes sense.  A church shouldn't have to hire Eddie Ducatti as a minister just because he shows up with an application and a glazed look in his eyes.  The controversy in this case is over the definition of a “minister” versus an employee.

The school maintained that this teacher had been designated a minister as it pertains to her teaching religion and other subjects at the school and therefore was covered by the exception.   Her position obviously was that she was not a minister in the normal sense, that she was, indeed, simply a teacher and therefore not covered by the exception.  This is a somewhat dicey issue and the court chose to interpret it as one fundamentally of separation of church and state, in which the court has no jurisdiction in a church’s decision as to who is appropriate to promulgate its teachings.  There is ample precedent for this decision, although from some perspectives it certainly appeared that the church was using this exception as a pretext to fire someone who pissed them off.  The court dismissed this as a mitigating factor and said it didn't matter if that was the case; the exception still withstood this challenge and prevailed.  So why am I bringing this up, you may be asking.  I am bring it up because Clarence “Mumbles” Thomas, half-wit side kick of Antonin Scalia, strict constructionist devotee and a man who has been known for his religiosity, wrote a concurring opinion stunning in its simplicity and implications. 

He said that the church “sincerely considered” this person to be a minister – never mind that she was far more likely to be identified as a teacher than a minister – and that that was enough to persuade him that the ministerial exception was appropriate.  Moreover, his concurrence implies that it wouldn't matter what the source of the dispute between the church and an employee they have deemed to be a minister is; it's still covered by this exception.   So let’s imagine that this teacher catches Father Johnson in the coat room with 13 year old Sally and threatens to turn him in.  He fires her.  Using Thomas’ reasoning she would have no recourse to get her job back – assuming she wanted it back, of course – because he was justified by the ministerial exception – no matter the circumstances – in firing her because he was a minister and she was a minister and therefore beyond the reach of standard employment law and nobody's business but theirs.    

This is a squiggly can of worms to be sure.  A church could suppress the reporting of all manner of misconduct in the guise of the exception simply by designating someone a “minister” regardless of whether or not they would fit that description by any ordinary measure.  It is a preposterous interpretation and grants to churches the kind of license not prevailing for any other type of employer.  A simple coffee shop in Michigan, for example, upon employing a wheel chair bound barista may have to go to significant expense to construct a ramp or otherwise provide access to that employee or be fined.  A church, on the other hand, could by this reasoning, deem a disabled person’s struggle up multiple stairs and over other obstacles to be a test of their faith and therefore they would have no such expense under the exception and would suffer no penalty if that person – having failed in that test by repeatedly falling down the stairs – wanted to sue under the Americans with Disabilities Act.  My point is, Clarence is a simpleton who has spent years on the bench, adding nothing to the dialogue, writing scrupulously researched but fundamentally wrong headed decisions that seemingly come to him in dreams or other religious hallucinations.  The man is an abomination on the court and this country will be far better off the day he ascends into heaven or otherwise leaves the bench for good.

I guess I got caught up in that a little more than I anticipated and so will leave my outraged rant about Gitmo for tomorrow.  I will say this about it, though.  It appears to me that there is a twisted group of strutting assholes in this country who seem to think it is a good thing - makes us scary bad-asses – that there are prisoners being detained there who have been cleared by the FBI and CIA and who appear to guilty of nothing but being in the wrong place when a platoon of adrenaline-amped marines came over the hill where they had their goats.  For that they are held without charge, without a trial, for ten long years and we still won’t let them go.  It is nothing but an American Gulag and we should all be ashamed of the place.