There is no clash of rights in Liberty University’s case. The First Amendment settled the war long ago.

By Daniel Schmid

As an old proverb espouses, the one-eyed man is king in a world of blind men. (More precisely, in Latin, in regione caecorum rex est luscus.)

In today’s “Alice in Wonderland” world where sometimes down is up and up is down, it sure seems like a realm of blind men wandering about, trying to articulate how sound legal principles apply in unsound biological constructs. Square pegs and round holes sure come to mind, but we won’t delve any further into that analogy rife with peril.

Inside the Blind Realm

Suffice it to say, there are a few examples from the recent Supreme Court docket that demonstrate the blind realm in which we find ourselves:

In Little v. Hecox and West Virginia v. B.P.J., the Supreme Court will decide this term whether a state violates the Constitution and federal statutory law by prohibiting biological men from playing in sports designed for biological women.

In Skrmetti v. United States, the Supreme Court decided that States do not violate the Equal Protection Clause of the Fourteenth Amendment by prohibiting merchants of tyranny masquerading as medical professionals from radically altering the biological reality of a child by subjecting him or her to life-altering surgeries or experimental pharmaceuticals to “change” the child’s gender (as if that is even possible).

In Bostock v. Clayton County, the Supreme Court was tasked with the question of whether the definition of sex in Title VII of the Civil Rights Act of 1964 included sexual orientation and gender identity when it was enacted six decades ago. It didn’t, by the way. Be that as it may, the Court saw it differently and held that discrimination on the basis of sex included protection for individuals who reject their biological and chromosomal reality in the employment context.

Enter Jonathan Zinski, and his charade against Liberty University. Armed with what seemed like guiding light in the dark room of biological rejection, Zinski contended that Liberty University is required under Bostock to hire him, continue to employ him, and even publicly affirm his rejection of biological reality regardless of what Scripture says. When Liberty terminated Zinski’s employment, he sued.

No “Clash of Rights” When Religious Freedom Is Set in Stone

This has notably led to a host of talking heads on television and talking quills in print dramatically noting this as a “clash of rights” or a “war” between two federal protections.

It isn’t.

That war (if there ever was one) was fought, those skirmishes were had, and constitutional protection for religion imposed unconditional surrender 250 years ago.

The First Amendment recognizes several key propositions: (1) the Church Autonomy Doctrine; (2) the Ministerial Exception; and (3) the Right to Association.

If one views the current landscape as a war of rights, the First Amendment’s triumvirate protections for religious institutions represent, not Epic Fury or Shock and Awe, but Dispositive Conclusion. In other words, game over.

For simpler minds like mine, a baseball analogy will suffice — three strikes and batter’s out.

Church Autonomy: The Supreme Court first articulated in 1871 a concrete proposition that civilian courts have no authority to adjudicate disputes involving the proper interpretation of Scripture. There, in Watson v. Jones, the Court held that civilian courts have no authority to adjudicate the proper interpretation of Scripture. The reason is simple: “the law knows no heresy, and is committed to the support of no dogma,” and “[A]ll who unite themselves to a religious body [or religious employer] do so with an implied consent to submit to it.”

Zinski fraudulently espoused agreement with Liberty’s biblical interpretation of biology, and when he revealed his fraud and announced his rejection of that religious doctrine, he was rightly fired. The First Amendment protects Liberty’s right to terminate him, and the courts have no business in adjudicating that dispute. In fact, it “would lead to the total subversion of such religious bodies, if any one aggrieved by one of their decisions could appeal to the secular courts and have them reversed.”

Simply put, Liberty’s officials “are the best judges of what constitutes an offence against the word of God and the discipline of the church,” and “civil courts exercise no jurisdiction [over] a matter which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standards of morals required of them.”

Strike 1 – First Amendment church autonomy doctrine.

Ministerial Exception: The First Amendment also entitled Liberty to select who qualifies to minister to the faithful. Though somewhat of a misnomer, the ministerial exception is not limited to pastors and clergy. The Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC said that “[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.”

There is no clash between whether Liberty must employ someone whose open and unrepentant sin places him in direct conflict with its religious doctrines. The clash was settled. Indeed, as Hosanna-Tabor held, “the First Amendment has struck the balance for us, and the church must be free to choose those who will guide its way.”

Strike 2 – First Amendment ministerial exception.

Right to Association: Finally, the Supreme Court, in Roberts v. U.S. Jaycees, held the freedom of expressive association “presupposes a freedom not to associate” because “[t]here can be no clearer example of an intrusion into the internal structure or affairs of an association than a regulation that forces the group to accept members it does not desire.”

Liberty requires adherence to Scripture to qualify to be a voice for Liberty. Zinski does not qualify. Again, as the Supreme Court said in Boy Scouts of America v. Dale, “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association” in a way that the First Amendment does not tolerate.

Strike 3 – First Amendment right of association.

The batter (Zinski) is out, and his suit must be thrown out.

In short, there is no clash or war of rights. Zinski has no right to demand employment at a religious institution, and Liberty has a fundamental, constitutionally grounded right to terminate an employee who does not share its biblical views.

In a world of blind men, the First Amendment has both eyes wide open with 20/20 vision. And the clarion picture that emerges is that the First Amendment demands protection of the only existent right at issue here — Liberty’s right to abide by its religious beliefs.

First published in the Washington Stand.

For more from Daniel Schmid, Associate Vice President of Legal Affairs, click HERE.