Rats -- very sorry, completely missed that. But is it really the case that the Church would indeed refuse to ordain priests that disagree with its position? If so, and especially if the Church asked every applicant his or views and categorically rejected all, male or female, who disagreed with the Church on this matter, then maybe this would indeed be religious discrimination and not sex discrimination. But it would also be pretty expensive for the Church, it seems to me, since it would disqualify quite a few otherwise qualified candidates, at a time when people (or at least Americans) aren't (to my knowledge) rushing into the priesthood.
> -----Original Message----- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > Sent: Saturday, May 08, 2010 1:31 PM > To: Law & Religion issues for Law Academics > Subject: Re: Question About The Statutory Title VII Exception and the > Constitutional Ministerial Exception > > 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? > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password, see > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be viewed as > > private. > > Anyone can subscribe to the list and read messages that are posted; people > can > > read the Web archives; and list members can (rightly or wrongly) forward the > > messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as private. > Anyone can subscribe to the list and read messages that are posted; people can > read the Web archives; and list members can (rightly or wrongly) forward the > messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
