There is a potential conduct vs belief distinction. The man who wants to be a
priest but who argues that the church should change its doctrine to allow women
to be ordained is not by his seeking ordination engaging in an activity
contrary to church doctrine --that is, he is abiding by the church's doctrine
though he would like to see it changed. (That is, assuming the church allows
those to be ordained who will abide by its doctrine with regard to
nonordination of women while they seek to change it through regular church
processes; I don't know whether Roman Catholic canon law permits this; if not,
then his seeking ordination would be in violation of church doctrine.) But the
woman who seeks ordination is seeking to engage in conduct (or to cause the
church to engage in conduct) that would violate the church's doctrine in
addition to wanting the church to change its existing doctrine.
Similarly, for example, in some Protestant denominations a candidate for
ordination who is a celibate gay or lesbian person would be eligible for
ordination even if he or she believes or argues that the church should change
its current doctrinal position that persons who unrepentantly engage in
homosexual conduct may not be ordained -- because he or she would not be
engaging in conduct in violation of the church's standards. But in such a
denomination a person with the same views who openly and unrepentantly engaged
in homosexual conduct could not be ordained.
It seems to me that churches and other associations should be permitted to make
such a distinction, and that it can be a real, nonpretextual distinction. By
allowing associations to make such distinctions we allow them to be more
tolerant of belief and of internal attempts toward change or reform without
losing their right to insist on standards of conduct.
That is not to say that associations should be required to make such a
distinction or required to make it uniformly with regard to both core and
noncore standards of conduct and belief. They should be permitted to have both
conduct and belief standards for membership or leadership positions. For
example, it would make no sense to require a church to ordain a minister who
was committed to live by its moral standards and even to teach its doctrine
faithfully, but who did not believe the doctrine to be true. Most religious
associations will have core and noncore belief requirements for leaders and
members. Leaders may be expected to embrace core beliefs but not noncore
beliefs, and the set of core beliefs might be smaller for members than for
leaders. With regard to expressive conduct (treating teaching and other speech
as a kind of conduct in this context), they might expect ministers to teach
core beliefs faithfully and simply not to undermine certain other beliefs,
while permitting ministers to openly question yet other noncore beliefs and to
openly reject yet others. The same may be true for standards more directly
related to conduct. There thus is a spectrum of belief requirements, and a
spectrum of conduct requirements; perhaps we could think of these as two axes,
with associations, particularly religious associations, having the freedom to
choose where they will place themselves on each axis (or, in other words, on
the plane defined by the two axes). Or perhaps there are three axes: standards
for internal belief, standards for teaching and other expression, and standards
for conduct that is not primarily expressive.
I doubt this is a new idea; perhaps someone would have a reference to something
discussing such a two or three axis approach to classifying expressive
associations or more particularly religious associations.
Mark Scarberry
Pepperdine
________________________________
From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene
Sent: Sat 5/8/2010 11:31 AM
To: Law & Religion issues for Law Academics
Subject: RE: Question About The Statutory Title VII Exception and
theConstitutional Ministerial Exception
Well, if the Church is willing to have as priests men who disagree with
the church about the ordination of women, but rejects women who disagree with
the church about the ordination of women, then isn't that sex discrimination
and not religious discrimination? So I do think that the ministerial exception
is necessary to leave the Church with this flexibility (and is strengthened by
Boy Scouts v. Dale).
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Christopher Lund
> Sent: Saturday, May 08, 2010 11:16 AM
> To: Law & Religion issues for Law Academics
> Subject: Question About The Statutory Title VII Exception and the
> Constitutional
> Ministerial Exception
>
> I had a question for the listserv. Title VII has a statutory exception that
> allows
> religious organizations to discriminate in employment on the basis of
> religion.
> There's also the constitutional ministerial exception, which allows religious
> organizations to discriminate with regard to any characteristic (race, sex,
> etc.) in
> ministerial positions. There's controversy as to whether the ministerial
> exception survives Smith. (I think it should and it does, but forget that
> for now.)
>
> For now, let's say it doesn't. Let's say the ministerial exception
> disappears.
> What happens? In particular, how much of the ministerial exception's
> protection is already provided by the existing statutory right of religious
> groups
> to religiously discriminate? I think this question has huge ramifications
> (even as
> regards our present world where the ministerial exception does exist).
>
> Imagine this happens. The ministerial exception disappears and a woman brings
> suit against the Catholic Church, seeking to enter the priesthood. The
> Catholic
> Church refuses to allow her. She brings a sex discrimination claim. The
> Catholic
> Church defends by claiming that they are discriminating not on the basis of
> gender, but on the basis of religion. This woman clearly opposes a core
> teaching of the Church, expressed in Ordinatio Sacerdotalis among other
> things,
> that priests must be men. The woman calls this pure bootstrapping--the
> Church cannot convert its right to religiously discriminate into a right to
> engage
> in obvious sex discrimination. The Church points to its longstanding belief
> in the
> male-only priesthood and throws in the fact that it would also refuse to
> ordain
> men who opposed Ordinatio Sacerdotalis.
>
> Who wins this case in a world with no ministerial exception?
> _______________________________________________
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