I don't object to the duty Marci seeks to impose - notice to ministerial employees of their limited right to bring certain kinds of actions against their religious employer. The remedy is the problem - I assumed from Marci's original post that failure to give notice would result in waiver of the ministerial exception, and I don't think it is (or should be) subject to waiver. That's why the required duty to report child abuse is distinguishable - the duty's not the problem. (Interesting hypo at the intersection of the two -- a pastor reports a fellow pastor's sexual abuse of a child, and the reporting pastor is fired by the religious employer. The discharged pastor brings a wrongful discharge action - result? The ministerial exception should apply, barring the suit, even though the reporting pastor (and the employing organization) had a legal duty to report.)
The options you provide - apart from the last one - are all by way of notice, and while others might weigh in with concerns, I think it would be perfectly fine to impose the requirements. In general, I think the same with the condition on eligibility for benefits - if all that's required is notice as the price of entry (rather than waiver as the condition), it's hard to see the objection. So what remedy, apart from waiver of the exception, would you propose? Bob -On Fri, Jul 16, 2010 at 3:44 PM, <hamilto...@aol.com> wrote: > Bob makes very good points but I'm not persuaded. Religious employers > can be required to report child abuse by their employees, so why can't they > be required to provide legal boilerplate to incoming employees? > > If Bob is right, we have serious problems in my view. The public policy > problem is that no religious organization is going to make such a warning > without being prodded by the law (or insurance cos., but they do not > prod without legal --aka financial -- consequences). So we are stuck with > obvious harm to employees of religious organizations but no solution. I am > a firm believer that the Constitution was not intended and should not make > it impossible for government to prevent or remedy substantial harm. > > So that leaves the government -- charged with protecting citizens from harm > -- on Bob's theory hamstrung from requiring religious employers to issue a > warning regarding the state of the law. So how does the government protect > its citizens? I guess there are several public education options: > > (1) public service announcement: if you are considering or are working for > a religious institution in a religious capacity, you need to understand that > it is immune under judicial doctrine from anti-discrimination laws, > including sexual harassment and gender discrimination > > (2) on every W-2, which the religious employer must provide to every > full-time employee, right?, there is boilerplate saying the same as above. > > Here is another option-- how about no religious organization can be > eligible for faith-based funding unless it provides to its employees a > statement that it is immune from the anti-discrimination laws? > > Marci > > > > > In a message dated 7/16/2010 3:13:44 P.M. Eastern Daylight Time, > rtut...@law.gwu.edu writes: > > Marci's idea of a warning for ministerial employees would certainly be a > prudent step for religious employers to take on their own initiative, but I > don't think the state could impose such a requirement as a condition of the > religious employer invoking the exception in litigation -- the exception > seems to me jurisdictional, not something derived from a religious > organization's claim of autonomy (about which there is good reason to be > dubious) but rather from courts' constitutional inability to determine what > is adequate qualification for or performance of the ministerial role. > > Bob Tuttle > > > > _______________________________________________ > 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. > -- Robert Tuttle Professor of Law David R. and Sherry Kirschner Berz Research Professor of Law & Religion GWU Law School SSRN download page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=271025
_______________________________________________ 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.
