If the Court upholds a ministerial exception, it is only fair for the federal government and the states to amend their anti-discrimination laws to require employers otherwise covered to disclose to their religious employees that they will not have the protection of the anti-discrimination laws if they accept the employment of this religious organization. We live in a culture where there is a basic assumption that it is wrong to discriminate. Employees in these cases are typically in shock that the religious organization could have a First Amendment or any other defense to otherwise illegal discrimination. I have never spoken to Ms. Perich, but I can imagine that it came as a surprise to her that her employer (1) would engage in disability discrimination against her, and (2) then raise the First Amendment to permit such discrimination. The same is true in the cases involving gender and race discrimination (especially where the original appointment had no gender/race requirement). (If anyone thinks that religious organizations do not engage in invidious gender or race discrimination not motivated by their religious beliefs, I would be happy to put you in touch with various victims who would say otherwise.) A disclosure requirement would be the least that would need to be done to level the playing field between religious organizations and their employees. Marci In a message dated 8/16/2011 4:28:59 P.M. Eastern Daylight Time, howard.fried...@utoledo.edu writes:
As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a big part of why the ministerial exception has persisted all these years. Best,
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