Skip to comments.Supreme Court asks: could discrimination claim force female priests?
Posted on 10/07/2011 1:37:57 PM PDT by NYer
A Lutheran teacher's lawsuit led to a provocative question being asked in the Supreme Court on Oct. 5: could government efforts to end job discrimination jeopardize the all-male Catholic priesthood?
The case pitting the commission against Hosanna-Tabor Evangelical Lutheran Church and School does not directly concern the issue of women and the priesthood. But justices were quick to connect the matter at hand involving the Lutheran group's right to hire and fire ministers at their discretion with the issue of Catholics' and other groups' right to determine who will exercise ministries.
Wednesday's case first arose when Cheryl Perich, who taught religious and secular subjects, was fired from a position the Lutherans considered a religious ministry.
Perich, who had narcolepsy, claimed she was illegally fired as a form of retaliation for threatening to pursue a legal complaint against the school under the Americans with Disabilities Act. The Equal Employment Opportunity Commission says a traditional ministerial exception, allowing churches freedom in hiring and firing, does not apply to this case.
Hosanna-Tabor, however, says it fired Perich from her teaching ministry not in retaliation, but on religious grounds. They say the fourth-grade teacher lost her job for refusing to submit to an in-house dispute resolution process , thereby violating the church's interpretation of a biblical passage that discourages Christians from suing one another.
The (Obama) administration has taken a very extreme position, said Becket Fund Legal Counsel Luke Goodrich, who is leading the religious freedom group's work on the Hosanna-Tabor case. He said the administration was attacking the very existence of the ministerial exception, such that even the pastor of a church could sue the church for employment discrimination.
There's a lot of uncertainty surrounding the outcome of this case, Goodrich told CNA/EWTN News Oct. 3, because the Supreme Court has not decided a case involving the autonomy of religious groups in many years.
The Justice Department holds that the Lutherans cannot fire Perich for complaining to the government even if church teaching forbids it.
And it was this question when might the government's interest in preventing discrimination trump a religious group's principles? that prompted the justices to ask the attorney for the governments Equal Employment Opportunity Commission during Oct. 5 oral arguments why female priests could not be mandated by the government on similar grounds.
The belief of the Catholic Church that priests should be male only you do defer to that, even if the Lutherans say, look, our dispute resolution belief is just as important to a Lutheran as the all-male clergy is to a Catholic? asked Chief Justice John Roberts, questioning Leodra Kruger, the U.S. solicitor general's assistant who represented the Equal Opportunity Employment Commission.
Yes, Kruger responded. But that's because the balance of relative public and private interests is different in each case.
Do you believe, Miss Kruger, that a church has a right that's grounded in the Free Exercise Clause and/or the Establishment Clause to institutional autonomy with respect to its employees? asked Justice Elena Kagan.
We don't see that line of church autonomy principles in the religion clause jurisprudence as such, the federal government's attorney replied.
Kruger also said the ministerial exception to discrimination laws was not simply a part of the First Amendment's guarantee of the free exercise of religion.
Justice Scalia then pressed Kruger on the difference between ordinary associations subject to a range of anti-discrimination laws and religious ones.
There is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization, said Justice Scalia, but there, black on white in the text of the Constitution are special protections for religion. And you say that makes no difference?
Kruger's response included her explanation of what the government considers the core of the ministerial exception as it was originally conceived which is that there are certain relationships within a religious community that are so fundamental, so private and ecclesiastical in nature, that it will take an extraordinarily compelling governmental interest to (allow) just interference.
But Justice Breyer pushed the federal government's attorney to say how far she believed the protection extended.
Suppose you have a religion and the central tenet is: 'You have a problem with what we do, go to the synod; don't go to court,' he asked. So would that not be protected by the First Amendment?
It's not protected, Kruger responded.
The government attorney went on to attack Hosanna-Tabor's use of the ministerial exception, which she said would mean that the hiring and firing decisions with respect to parochial school teachers and with respect to priests is categorically off limits to federal regulators.
We think that that is a rule that is insufficiently attentive to the relative public and private interests at stake, she said, citing interests that this Court has repeatedly recognized are important in determining freedom of association claims.
It was then that Breyer sprung the question of whether a woman might sue over her exclusion from the Catholic priesthood, on the same basis that Perich was suing over a religiously-grounded termination.
Kruger said the two situations were different not categorically, but rather because the private and public interests are very different in the two scenarios.
The government's general interest in eradicating discrimination in the workplace is simply not sufficient to justify changing the way that the Catholic Church chooses its priests, based on gender roles that are rooted in religious doctrine, she said.
But, she said, the government does have a compelling and indeed overriding interest in ensuring that individuals are not prevented from coming to the government with information about illegal conduct, even if the church in question would prohibit its members from doing so on religious grounds.
Justice Samuel Alito pointed out that this distinction between the Lutherans' lawsuit prohibition on the one hand, and the Catholic Church's male priesthood on the other, seemed arbitrary.
Kruger's clearest articulation of the Obama administration's position on religious freedom came in response to Justice Kagan's question as to whether she was willing to accept the ministerial exception for substantive discrimination claims, just not for retaliation claims.
The government's lawyer responded that substantive discrimination claims, such as those alleging sex discrimination, could also be legitimate grounds for a lawsuit against some religious institutions.
She said the government's interest in regulating Hosanna-Tabor's hiring and firing extends beyond the fact that this is a retaliation, to the fact that this is not a church operating internally to promulgate and express religious belief.
It is a church that has decided to open its doors to the public to provide the socially beneficial service of educating children for a fee, in compliance with state compulsory education laws, she said, drawing a sharp distinction between churches and religious ministries.
Church-operated schools, Kruger stated, sit in a different position with respect to the permissible scope of governmental regulations, than churches themselves do.
The court is expected to hand down its ruling by summer of 2012.
(The Justice Department holds that the Lutherans cannot fire Perich for complaining to the government even if church teaching forbids it.)
So separation of Church and State only applies when it works for the State??
The current Government is not a friend of the people, the Constitution, the military....
Hands off the priesthood.
I am convinced history is a big circle, and Christianity in the West will simply go right back to where it was in the second and third centuries in Rome.
There is nothing new under the Sun, after all.
Exactly. The liberals’ favorite “wall of separation” document, Jefferson’s letter to the Danbury Baptists explained that this kind of interference by the government was not allowed under the Bill of Rights. Contrary to popular belief, the courts are part of the government.
Perhaps the court could determine rocks should be bread and solve world hunger?
This is exactly what happens when government (including the courts) gets involved in strictly private matters. This is where the 1964 Civil Rights Act, for instance, went too far: government forcing integration is just as bad as segregation. Who I decide to pay or not pay is nobody else’s business.
Not until they compell female imams.
I think this has to be viewed from the perspective of setting a precedent for Sharia law in muslim organizations. If they are allowed to declare their in-house beliefs and rules as not subject to constitutional review, it could be a bad thing.
Not in The Church. In the counterfeits? Anything goes.
Wow. There you have it, in black and white. The Obama Administration thinks they have the legal right to outlaw the Catholic religion, all they lack is the "compelling governmental interest" (= grounds, motivation, justification) to do so.
This is why secular ideologies need to be treated the way religions have come to be treated under the law. Otherwise, religious freedom will become a relic.
Jesus said that Christians will be persecuted in every nation. It’s coming soon, and the average church will dwindle from 300 to 15, just like it did in Russia. Time to prepare.
think of him as a muddled mesh of thoughts but nevertheless, a great patriot.
Psst...The Federal government designated lots as reserved for Religious purposes. That was our land!!
We don’t have to look back that far. Just look at the Catholic Church’s position under the secular laws of France.
None of them has actually read the letter. If Black had not torn the term out of context, His own opinion would not be so totally disingenuous.
I agree. The bull**** we have to put up with now is completely opposite of what Jefferson said in the letter. The commies on the court turned everything around on us in their efforts to destroy Christianity and all religion here in this country. JMO.
Of course it is. This has been the fascist democrat method for fifty plus years and people still don't seem to get it. They do no willingly fight all the way to the Supreme Court unless they know that wether decided in their favor or not they will end up with a precident that further leagalizes a portion of civil interaction that has always been resolved by individuals based on personal preference and/or social traditions that the government has no control over.
In this case, if the court rules against them, look forward to decades of cases where Moozlims argue that the law has no say so over them, first with something like not having to allow non-Moozlim police answer a 911 call to a mosque, followed by trivia like Moozlims having the right to go to their mosque for the resolution of their legal problems and the right to ignore laws that conflict with their beliefs. They'll even try the drivers license route again saying that women who are forced to show their face for a license are being illegally kept from holding jobs that require them to drive a vehicle, etc., etc.
Never forget. To the fascist, any decision that opens the door to more court cases is more valuable than are most outright victories they go after. They have long been throwing their legal shoes into the economic machinery of this country and by doing so have crippled critical industries and made it a much more of a gamble for individuals to start their own business for fear of ending up in court over trivial business decisions.
Or, maybe they're just honestly concerned that some form of discrimination still exists in the workplace, right?
the “narcolepsy” sounds suspicious to me. She took a couple months off for the problem, and there was a suggestion she might have to take off more time in the future, which was the problem. Sorry, but I don’t see why she had to take off so many months for a neurological problem that you are born with (unless she had post encephalopathy narcolepsy, which wasn’t discussed in the news stories).
Narcolepsy can be accomedated in the workplace by naps, taking medication, and adjusting one’s schedule.
as for not suing, I don’t agree with it but it IS scriptural not to sue until all other ways to settle things are exhausted. She didn’t bother to arbitrate, but sued right away.
So you have a lady who has a strange form of a common disease and wants vacations but keep her job, and then you have a lady who instantly goes to the feds to keep her job.
uh, usually if you are going to bring a lawsuit against your employer, you are required to prove you tried lower methods of resolving the problem.
If you don’t do that, often you lose the case.
And as my previous post points out, there are medical questions about her diagnosis and need to take off from work so often. Maybe that is why she’s trying to make it an “EEOC” case rather than a Disabilities act case, which she might lose.
So who is funding this lady’s jihad against the church?
Black’asBlack’s opinion in Everson in efffect incorporated the Blaine Amendment into the Constitution.He was an old Klansman and wanted to block the efforts of to get federal aid for the Catholic parochial schools. So he simply reinterpreted the First Amendment and the 14th Amendments in such a way to reflect the Blaine Amendment’s provisions.He was trying to protect the Protestant character of the public schools,but his concept of separation of Church and state opened the way to nullify the traditional liberties of the Church as an institution.
don’t forget the next part: ‘It is a church that has decided to open its doors to the public to provide the socially beneficial service of educating children for a fee, in compliance with state compulsory education laws, she said, drawing a sharp distinction between churches and religious ministries.
Church-operated schools, Kruger stated, sit in a different position with respect to the permissible scope of governmental regulations, than churches themselves do.’
In typical cowardly liberal/socialist/progressive fashion, the desire isn’t to openly confront now. They want to open multiple fronts of attack: regulate parochial schools, to cause them to do as they wish, regulate any church-affiliated organization. That means that they don’t have to directly confront the churches themselves, because they’ve already effectively muzzled all but the imams.
Likewise in typical liberal fashion, it is preferred (by them) to make us criminals, so that it all becomes a “police action,” and their role is one of regrettably having to clean up after those crazy, illicit Christians who couldn’t follow the law. While they are cowards, and indolent, and many other things, most of them are not stupid.
If they are perceived as directly confronting the religious majority of the country, they will be roundly, utterly defeated. Not just in polls or elections, either. But if they couch it in such a way as to cause us to appear, in whatever manner, as illegal and unable or unwilling to even try to be decent (as portrayed), then they can feel self-satisfied and as if they are under sufficient cover to act without fear of repudiation and recrimination. They’re cowards.
If they can paralyze the religious, especially the Catholics, there are fewer impediments to them reaching their goal of remaking society at large. This is but the latest move.
exactly. Megachurches will become Philadelphian, small but pure
Bismarck said he wasn't against the Catholics' right to "worship," but their right to operate "socially beneficial services" (primary schools, seminaries, Universities, hospitals/medical missions, publishing houses, social services for the poor) functioning as subsidiaries of the Church, not the State.
I am sure that even most Catholics do not realize that the Church is--- or ought to be --- the ultimate bulwark against the totalitarian State.
Looks like he was slightly too pessimistic. But it's still pretty astonishing that the Obama administration took such a radical stand.
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I'm less concerned about court mandated observances in the priesthood and more concerned with court mandated shackles being put on churches once that ‘public’ threshold is crossed. It could easily become the basis for forbidding any religious observances outside the temple doors, court mandated renting out of church facilities to gay groups, etc.
Mind, this is already in the process in some places... A court is deciding if a Catholic mission can be compelled to rent out their facilities to a gay mens group which desires to use the facilities for a gay retreat. The argument is that since the mission has rented out rooms to others before, it is forbidden from denying the gay group under the fair lodging laws, nor could they now decide to restrict others from renting to skirt the issue. Once something is rented for lodging, it is forever forward stripped of any religious protections.
Which, indeed, would go for almost any church that ever charged any fees to hold a wedding or other event. They would be, under the arguments presented, forbidden from ever denying a group that didn't meet with the church's approval. If a group wanted to rent the church for a gay orgy upon the altar, that’d be their right to do so, so long as they paid the prevailing fees.
I have to hope that the court's stance on the 2nd amendment extends to the first, and I think it will, especially with the much disagreed with Westburo decision, where the court held that the government failed to establish a compelling reason to exclude the speech of the Westburo protesters on the grounds that such speech was automatically protected and the government would need an extraordinary reason to exempt that protection.
All in all, I'd much rather Congress get off their rumps and actually dismantle the whole ADA, as these rules have been so heavily abused as to make them an overriding intrusion into private and public property, and cost well over a trillion dollars to comply with so far.
Excellent insights. Thank you for a very interesting post.