The U.S. Supreme Court will rule this summer whether religious schools are immune from lawsuits filed by teachers alleging employment discrimination (“Justices Struggle With Religious Institutions’ Freedom to Hire and Fire at Will,” The Wall Street Journal, May 12). The two cases involve Catholic schools in California, but the decision will have far-reaching implications for all religious schools across the country.
One case pertains to health and the other to age discrimination. I’m not an attorney, but I thought the “ministerial exception” issue was settled law by now. Although federal statutes outlawing employment discrimination on race, sex, age and disability make no carve-out for church employers, lower courts have reasoned over the years that the separation of church and state protects such employers from government control.
But who counts as a minister? In 1987 in Bishop v. Amos, SCOTUS held that religious organizations must be “free to select their own leaders, define their own doctrines, resolve their own disputes, and run their own institutions.” Then in 2012 in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the high court reaffirmed its prior decision. That’s why I think the plaintiffs in the two cases now before SCOTUS will have an uphill battle to prevail.
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In my opinion, the SCt got it wrong when the SCt created the “ministerial” exception whereby employment laws did not apply to ministers employed by religious institutions. Seems to me that, by creating the ministerial exception, the SCt was unconstitutionally establishing religion — that is, giving the religious employers an advantage vis-a-vis non-religious employers. Of course, at a gut level most people would find it objectionable if the govt required the Catholic Church to hire female priests or orthodox Jewish synagogues to hire female rabbis. But, we — or at least the SCt — should be thinking with its head and not its gut. (An alternate, more analytically satisfying approach would have been for the SCt to find that, in some situations, an employee’s gender was a bona fide occupational qualification (“BFOQ”) for religious employers and carve out a very limited exception for Catholic churches/orthodox Jewish synagogues hiring only male priests/rabbis — like the well-recognized BFOQ for movie producers hiring only women to play the female roles in movies. The BFOQ approach would neatly handle cases where the religious institution unlawfully discharges an employee for something that is illegal under the employment laws and has nothing to do with religion — i.e., discharging a teacher for having cancer in violation of the ADA or the FMLA.)
Seems clear that, when Congress enacted the various employment laws, Congress was motivated by a desire to treat employers in a certain way and was NOT in any way motivated by a desire to punish or interfere with religious employers. Therefore, it follows — to my way of thinking — that applying the employment laws to religious employers cannot be viewed as govt interfering with the free exercise of religion but rather must be viewed as the govt treating religious employers the same way that govt treats other employers.
Of course, one can argue — probably correctly — that Congress, in enacting the employment laws, did not intend to require that Catholic churches or orthodox Jewish synagogues hire female priests or rabbis. But, if Congress did intend to exempt churches and synagogues from the employment laws, then that Congressional intent would itself be an unconstitutional establishment of religion — that is, Congress would be passing a law that gave religious employers an advantage vis-a-vis other employers.
In my opinion, the SCt, in trying to apply the no-interference/no-establishment clauses, gives far too much weight to gut feelings and far too little weight to rational analysis. The result is usually some kind of split-the-baby compromise decision that requires the courts to balance a laundry list of factors in each case in deciding whether something does or does not violate the First Amendment with no coherent overall analysis.
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Labor Lawyer: I thought that the Supreme Court’s ruling in Bishop v. Amos was the final word on the matter of employment discrimination. Apparently, it was not because of the two new cases before it. I don’t know why courts are so reluctant to keep their hands off the issue when the ministerial exception has led to such abuses.
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