Eugene, I think I built this into the original hypo (last line) -- the part
about how the Church "throws in the fact that it would also refuse to ordain
men who opposed Ordinatio Sacerdotalis." If the Church does that, is it now
protected by the statutory exemption?
Best,
Chris
----- Original Message -----
From: "Eugene Volokh" <vol...@law.ucla.edu>
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>
Sent: Saturday, May 8, 2010 2:31:55 PM GMT -05:00 US/Canada Eastern
Subject: RE: Question About The Statutory Title VII Exception and the
Constitutional 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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