This questions were actually posed in Dayton Christian Schools, which went off
on Younger grounds in the Supreme Court in 1986. Got a hostile opinion on the
merits in the Sixth Circuit.
They are also lurking in CLS v. Martinez, argued April 19. CLS requires a
statement of faith, which everyone agrees is religious, and it requires a good
faith effort to live up to Christian morality, which precludes unrepentant
nonmarital sex. That's clearly religious for CLS; Hastings claims it is sexual
orientation discrimination.
Quoting Christopher Lund <ed9...@wayne.edu>:
> No problem with you missing it, Eugene -- it actually proves we're
> thinking alike. I agree with everything you said, and I think it
> unlikely the Catholic Church would do this. (Although note Ordinatio
> Sacerdotalis does end with the line, “We declare that the Church has
> no authority whatsoever to confer priestly ordination on women and
> that this judgment is to be definitively held by all the Church's
> faithful.”).
>
> In any event, the main issue I’m trying to think about is this. The
> statutory exception, as written, only gives churches a shield against
> claims of religious discrimination. But, in practice, it should
> provide protection from any type of discrimination claim -- as long
> as the discrimination is not just a church practice but a core church
> belief. And this has ex ante effects; by adopting certain doctrines,
> churches can expand the protection of the statutory exception. If
> the Supreme Court rejects the ministerial exception, the Catholic
> Church could essentially get it back by requiring all priests to
> assent to Ordinatio Sacerdotalis.
>
> This may all be right, but it seems a little counterintuitive. Here
> are two other situations I’ve been thinking about.
>
> Nonministerial employees. Imagine a twist on Amos. A church has a
> strict church policy of not allowing women in any job position. All
> church members must agree with it. A female janitor applies for a
> job. The church denies her employment, on the grounds that she does
> not follow church policy. No claim, I guess, because this is
> protected religious discrimination?
>
> Retaliation claims. Say a church has a policy that all disputes have
> to be handled within a set procedure established by the church. Does
> this give the church a shield against retaliation claims? That is,
> if a continuing employee files a sex/race discrimination claim and
> the church then terminates them for disobeying that church doctrine,
> is the church insulated from the employee’s retaliation claim
> (because it's not really retaliation, it's religious discrimination)?
>
> 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 5:49:05 PM GMT -05:00 US/Canada Eastern
> Subject: RE: Question About The Statutory Title VII Exception and the
> Constitutional Ministerial Exception
>
> 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?
>> > _______________________________________________
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>> _______________________________________________
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>> _______________________________________________
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> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
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>
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> _______________________________________________
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
_______________________________________________
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