Rick is casting a larger net than my post suggested.  The relevant  
universe here is the universe of employees.  As in the speech  cases (and in 
particular the defamation cases since we're dealing with  employment), there 
should be some weighing of interests here.  Right now,  in my view, the balance 
is out of whack in this universe.  (If there are  other harms arising from 
other First Amendment rights that require  redressing, I'm all in favor of 
exploring those as well.)
 
 Employees assume that they cannot be discriminated against on the  basis 
of gender (including a right not to be a victim of sexual  harassment).  It 
turns out in most states that they are UNLESS the employer  is religious. 
(Don't forget the Supreme Court has not yet ruled on the  ministerial exception 
so whether it is a robust or less robust or not a  constitutional right 
still remains in limbo.) So a bishop who creates a  hostile working environment 
or who persistently engages in sexual innuendo  typically is immune or who 
arbitrarily decides a man is a better choice than a  better qualified woman 
is immune.  
 
Employees are doubly disabled in these scenarios.  First, as Americans  the 
culture encourages them to trust religious leaders (though surely that  is 
declining in light of the steady investigative reporting suggesting folks do 
 that at their peril).  More importantly, because of the ministerial  
exception, few cases are ever filed, let alone litigated, and, therefore, the  
incidence of gender discrimination is not publicized.  So women are going  
into these jobs with expectations of fairness that are not borne out, because 
of  a First Amendment doctrine.  
 
One option is to carve back on the right so that no employer who fails to  
advise an employee of this issue can claim it.  Bob objected to that,  
because the ministerial exception is jurisdictional.  But if this is the  
result, 
why should it be?  Why isn't it a right, like the freedom of speech  in 
defamation cases, which carries with it some obligations and weighing,  
depending on the scenario?
 
One option is to have the government inform applicants through public  
education, as in add language to the tax forms.....  Another is to have  anyone 
who is taking government funds for mission have to agree as a condition  of 
receiving the funds to inform employees about the risks they are taking  by 
taking the employment.
 
Is Rick saying none of these options are constitutional and/or  desirable?
 
Marci
 
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
 
 
In a message dated 7/19/2010 9:50:33 A.M. Eastern Daylight Time,  
rgarn...@nd.edu writes:

I  agree, for what it’s worth, that it makes good sense for attorneys  
representing churches and religious institutions to advise their clients to  
inform those in ministerial positions (that is, in any position that the  
church regards as ministerial) about their (the institutions’) religious  
liberty.  But I’m wondering if Marci’s proposed warning requirement  applies 
only 
to religious employers (and if so, why?  Because they are  employers?  
Because they are religious?) or to all whose rights-exercise  might cause 
“harm”?


 
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