UPDATE: The Court of Appeals for the Third
Circuit, sitting en banc, granted a petition for rehearing in this case today,
and without opinion vacated the judgment and directed a panel rehearing before a
newly constituted panel (comprising Judges Smith (who dissented from the Becker
decision), Greenberg and Cowen). No indication whether the order was
based, in whole or in part, on the fact that Judge Becker had died and that the
other member of the majority, Judge Nygaard, is now recused for some
reason.
(Thanks to Howard Bashman for the
link.)
3. The case is decided on a motion
to dismiss (i.e., the court of appeals simply permits the case to go
forward to discovery and possible trial). At this stage, the college has
not asserted any religious basis for dismissing the plaintiff.
Judge Becker is careful to explain that if the college does allege a
religious basis for its decisions, the case would have to proceed without the
plaintiff being able to question the bona fides, or legitimacy, of the
college's religious beliefs or doctrines --- which might well result in a
victory for the defendants . . . but not necessarily. Here's the
key passage describing what would happen in such a case:
I think this analysis is correct as far as it
goes -- but I also think that despite the comprehensiveness of the opinion,
and Becker's care to deal with the opposing arguments, he fails to address a
much more likely scenario as the case goes forward.
To be sure, if the case turns on an assertion
that Petruska did not abide by a religious tenet (e.g., did not attend mass),
the court could probably adjudicate it, because the primary questions would be
whether she did, in fact, attend mass, and, if not, whether there is
evidence that such a reason for her discharge is pretextual (e.g., because the
college did not penalize men who did not attend mass).
But a much more likely scenario is that the
college will defend the suit simply by argung that Petruska's performance of
her duties -- e.g., her prayer services and liturgies -- left a lot to be
desired, or that the school concluded that her replacement would be
better at performing such duties. Obviously, it would be
exceedingly difficult for a trier of fact to adjudicate whether such
subjective, discretionary judgments about the quality of her work
were a "but for" cause of the school's decisionmaking without inquiring into
matters that are invariably religious in nature and thus beyond the ken of
civil authorities to evaluate.
My sense is that it is the prospect of these
latter sorts of factual disputes -- E.g., Was she a good chaplain? -- that
have led most courts to dismiss such claims at the outset. The principal
failing of the Becker opinion, I think, is that it does not address this
problem.
4. Judge Smith, in dissent, argues that a
choice of who will perform a religious organization's spiritual functions is
an "inherently" religious decision. This is wrong, I think. Such a
decision will invariably have an impact on the organization's
spiritual functions. And (as discussed above) such decisions might often
be based, at least in part, on the manner in which the individual performs
those spiritual functions. But not invariably. The decision could
instead be simply a matter of (non-religiously-motivated) sex
discrimination. This doesn't mean that Judge Smith's conclusion was
wrong; but his rationale also leaves something to be
desired.
5. As you all know, Judge's Becker's death
is the loss of a great jurist and, by all accounts, an extraordinary and
wonderful man. Not surprisingly, he had a reputation as a great judge
for whom to clerk. In footnote 28 of the opinion, Judge Becker
graciously nods to one of those former clerks, our ReligionLaw colleague
Marci Hamilton:
Congrats to Marci, even though this tribute, coming as it does two days after Judge Becker's funeral, must surely be bittersweet. 6. If the court of appeals does not reverse
the decision en banc, would the college be advised to petition for
cert.? A very interesting question. There's a clear circuit-split,
acknowledged by the court of appeals. And the votes might be
there -- surely Roberts, Thomas and Alito (a friend and former colleague of
Judge Becker) will be inclined to reverse. But it is something of a risk
on the merits. And the Supreme Court may well be inclined to wait
until the case is resolved rather than to accept an interlocutory appeal
-- after all, the defendants might still prevail on "religious question"
grounds as the case proceeds.
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