Griffin on the Cases Against the Ministerial Exception

Leslie G. Griffin (University of Houston Law Center) has posted Ordained Discrimination: The Cases Against the Ministerial Exception.  The abstract follows. – ARH

On October 5, 2011 the Supreme Court will hear oral arguments in the case of Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. Hosanna-Tabor involves the ministerial exception, a court-created doctrine that holds that the First Amendment requires the dismissal of many employment discrimination cases against religious employers. The Fifth Circuit created the ministerial exception in 1972 when it dismissed Mrs. Billie McClure’s equal pay lawsuit against the Salvation Army. Since then, the federal and state courts have repeatedly expanded the exception to reject lawsuits by elementary and secondary school teachers, school principals, university professors, music teachers, choir directors, organists, administrators, secretaries, and communications managers alleging violations of the Americans with Disabilities Act, the Age Discrimination in Employment Act, Title VII, the Pregnancy Discrimination Act, the Equal Pay Act, the Fair Labor Standards Act, the Family & Medical Leave Act, Workers’ Compensation laws and numerous state tort and contract laws.

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The Red Mass and Washington Churches

Today marks the first day of the Supreme Court’s 2011 term, and some of the Justices noted it yesterday by attending the Red Mass at the lovely Cathedral of St. Matthew the Apostle (image at right).

Here is an interesting looking book by Thomas A. Tweed (University of Texas) about another Washington D.C. church, America’s Church: The National Shrine and Catholic Presence in the Nation’s Capital (OUP 2011).  It brings back memories from my short stint at The Catholic University of America a couple years back.  The publisher’s description follows.  — MOD

The National Shrine in Washington, DC has been deeply loved, blithely ignored, and passionately criticized. It has been praised as a “dazzling jewel” and dismissed as a “towering Byzantine beach ball.” In this intriguing and inventive book, Thomas Tweed shows that the Shrine is also an illuminating site from which to tell the story of twentieth-century Catholicism. He organizes his narrative around six themes that characterize U.S. Catholicism, and he ties these themes to the Shrine’s material culture–to images, artifacts, or devotional spaces. Thus he begins with the Basilica’s foundation stone, weaving it into a discussion of “brick and mortar” Catholicism, the drive to build institutions. To highlight the Church’s inclination to appeal to women, he looks at fund-raising for the Mary Memorial Altar, and he focuses on the Filipino oratory to Our Lady of Antipolo to illustrate the Church’s outreach to immigrants. Throughout, he employs painstaking detective work to shine a light on the many facets of American Catholicism reflected in the shrine.

Another Ten Commandments Case

It is a truth universally acknowledged, that the Supreme Court’s decisions regarding religion in America’s public schools are widely disregarded.  No matter how many times the Court rules that officially-sponsored school prayers are unconstitutional, for example, the prayers continue.  The same pattern holds with regard to public Ten Commandments displays – though here, the Court bears much of the blame.  The Court has issued three decisions on public Ten Commandments displays over the past three decades, but they turn on very specific facts and fail to announce an easy principle.  For example, in two decisions issued on the same day in 2005, the Court held that a display of the Commandments in a Kentucky courthouse was unconstitutional, because reasonable observers would perceive an endorsement of religion, but that a display of the Commandments on the Texas State Capitol grounds was constitutional, because, well, the display had secular elements and hadn’t seemed to bother people.  One could forgive local officials for being confused.

A new Ten Commandments case has arisen in Giles County, Virginia, where the ACLU is suing the local school board in federal court for ordering that the Commandments be placed in the lobby of a local high school.  The school board argues that it has displayed the Commandments along with other historical documents, like the Declaration of Independence, that show that the school is not endorsing religion as such.  But the Supreme Court has been particularly suspicious of displays of the Commandments in public schools, and the facts suggest that, as in the Kentucky case, officials in Giles County surrounded the Commandments with secular documents only after some parents complained Read more

Corbin on the Irony of Hosanna-Tabor Evangelical Lutheran Church

Caroline Mala Corbin (University of Miami School of Law) has posted The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. The abstract follows. – ARH

The question presented in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC is whether or not a school teacher named Cheryl Perich should be considered a minister. The success of Perich’s Americans with Disabilities Act retaliation claim turns on the answer. If she is not a minister, she would probably win. If, on the other hand, she is a minister, she loses. She loses because under the ministerial exception doctrine, ministers may not sue their employers for discrimination.

In fact, neither the Free Exercise Clause nor the Establishment Clause necessitates the ministerial exception. To start, as announced in Employment Division v. Smith, neutral laws of general applicability do not violate the Free Exercise Clause, and no one disputes that the Americans with Disabilities Act is a neutral law of general applicability. Arguments that the “church autonomy” cases require courts to defer to church hierarchy and that these cases control instead of Smith ignore Jones v. Wolf, the last church property dispute decided by the Supreme Court. Jones v. Wolf explicitly rejects blanket deference to religious institutions in matters of internal governance. It further recognized that a deference approach may cause more establishment problems than a neutral principles of law approach. Indeed, the irony of the Hosanna-Tabor case is that trying to discern whether Perich is a minister will entangle courts in religious doctrine more than simply adjudicating her retaliation claim.

Iran Says Pastor’s Crime Not Apostasy, But Rape

More news this weekend on Yousef Nadarkhani, the Evangelical pastor Iran has sentenced to death for apostasy.  The semi-official Fars news agency says that Nadarkhani is actually facing execution for several counts of rape, extortion, and treason — nothing to do his conversion to Christianity.   Fars quotes a government official criticizing outside media coverage for giving a distorted account of Nadarkhani’s trial.  “In our system,” the official is quoted as saying, “no one can be executed for changing his/her religion.”  The new allegations are surprising, to say the least, since the government’s brief in Nadarkhani’s appeal to the Iranian Supreme Court, obtained by Western news outlets, mentions only the charge of apostasy.  Observers suspect that the international  attention to Nadarkhani’s case, including an appeal from the Obama Administration last week, has embarrassed the Iranian regime, which is now seeking a pretense for punishing the pastor.  — MLM