The most perspicuous example of a ministerial exception is the Catholic church’s limitation of membership in the priesthood to males. If a university were to have a rule that only men could serve as professors, it would be vulnerable to a suit brought under the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. The difference (or so it has been asserted) is that there is no relationship between professorial skills and gender ”” a woman can perform the duties of a teacher of history or chemistry as well as a man ”” while the tradition of an all-male priesthood is rooted in religious doctrine. So the university would be engaged in discrimination pure and simple, whereas the church’s discrimination is a function of its belief that the all-male priesthood was initiated by Christ in his choice of the apostles.
Were the state to intervene and declare the tradition of an all-male priesthood and the doctrine underlying it unconstitutional, it would be forcing the church to conform to secular norms in violation both of the free exercise clause (the right of a religion to be governed by its own tenets would be curtailed) and the establishment clause (the state would in effect have taken over the management of the church by dictating its hiring practices). (I am rehearsing, not endorsing, these arguments.)
This clear-cut example ”” to which both sides in Hosanna-Tabor v. EEOC refer frequently ”” may be the only one (and it is only clear-cut because it has behind it 2,000 years of history). For the question quickly becomes one of boundaries ”” how far does the ministerial exception extend? To whom does it apply?…
One should probably not comment on a case about whose details one has knowledge only through Stanley Fish’s summary! But, more generally, I might wish: would that Anglicans had as part of their doctrinal commitments the avoidance of lawsuits in the civil courts. One wonders, indeed, why the church in this case, given their supposed doctrinal aversion to lawsuits, did not follow Jesus’ own command (Mat. 5:25-26) and settle with the plaintiff out of court (which they had the opportunity to do, assuming Fish’s account is correct). If, however, Missouri Synod Lutherans ARE anything like Anglicans, the “pretext” argument of the plaintiff may have substance.
I’ve always believed that true religion is above the law!
[blockquote]Would that “this business of religion were left alone.†But as long as there is a religion clause, that’s not an option.[/blockquote]
But isn’t this the function of the free exercise clause? Given the tendencies of human government, without the protections of a free exercise clause religious freedom would all but disappear. The freedom of association clause has been demonstrated largely to be insufficient to protect against government encroachment. The last thing that I want is the federal (or any state) government dictating that Roman Catholics, Eastern Orthodox, and traditionalist Anglicans and Lutherans ordain women to the presbyterate, that Orthodox Jews have to ordain women to the rabbinate, that Muslims have to select women as imams, or that neopagan groups have to choose men as “high priestesses”. I don’t dispute Dr Fish’s contention that this is a very sticky wicket, though.
Discrimination is only illegal because the government says it is. Discrimination is not evil per se. Anti-Discrimination laws are the new tool of totalitarians.
This sounds very bogus on the part of the church. If they truly believe that part of their core doctrine (the violation of which can cause a teacher to be fired) is that Christians should never sue Christians, then I assume they can come up with numerous precedents in which they have fired teachers for suing other Christians in personal injury suits, child custody suits, etc. I suspect there are zero such cases. The Amish — probably. The Lutherans — doubtfully. They invoke this “core doctrine” only when THEY are sued! This does not seem to be the incredible, tangled, impossible-to-sort out puzzle that the editorial makes it out to be. You could imagine a variation on this case that would be, but that is not what is before the courts. They don’t have to judge on all possibile permutations of this issues — just this particular case.
Br. Michael hit the nail on the head.
#5–I am a lay person, but I consider myself a minister. Certainly, that is what the Chatechism says. So whatever I do in the Church, I am a minister, whether employed or volunteer. What we really need to look at is what labor and anti-discrimination laws are trying to protect. Not this. How is this “discrimination”? Discrimination laws should be very limited, and America has gone nuts with defining everything that a plaintiff’s lawyer can make a potential buck off of, as “discrimination”. If the courts can decide who is a minister, then we are on a very slippery slope. If you are going to work for a church, you have to be subject to the authorities of the church, and realise you a held to a higher, or at least different, standard. If you don’t like that, get a job elsewhere. No one made Tabor go to work at a church. The founding fathers very specifically exepmted churches from the prying eye of an potentially abusive central government for very good reasons. And finally, we are simply too litigious–and that is coming from a lawyer. I am constatnly bombarded by people who know all their “rights” but take no responsibility.
I am going to take a chance and venture an explanation of another school and congregation. My wife is a teacher at a local Christian Academy. She is required to be a member of the congregation of the sponsoring Church. I asked in my most diplomatic and non-adversarial way why. It was explained that the teachers were in fact educating the young of that congregation and that they must teach what this congregation believes. In that sense it does make a good argument that teachers fall within the ministerial rules. Starting at age three, students are exposed to church teachings and beliefs. They attend Chapel every schoolday. They take part in services at the Church and the teachers are the ones preparing them for such. In that light, I can see where a denomination or congregation would count teachers as “ministers” in their Church. This school has been going for 40 years plus, and is accredited in several ways. At the elementary school that I attended, teachers pay was not taxed like public school teachers because they were classified as full time ministers and were teaching ‘faith andmorals’ within the Roman Church’s definition. They did pay Medicare and Social Security, but no income taxes. I don’t know if that status has ever been challenged in any court other than Bankrupty. The law firm I was with handled a bankruptcy for one teacher. The trustee in that case attacked the ministerial status alleging that income taxes were due. The ministerial status was allowed by the Bankruptcy Court. I guess if they do accept it, probably other courts would as well.
The question is not whether or not this woman has a case re: discrimination. The question is whether she can file a discrimination suit and then be fired by her employer for doing so. In the secular world, this is obvious retaliation and I don’t think anybody wants a situation such that if you take legal action against an employer they can then fire you. If that were the case, we’d be back to the days of 15 hour a day sweatshops behind locked doors (with the occasional fire killing everybody) because people would be afraid to say anything.
In this case, the church admits they fired her because she filed a lawsuit but asserts that they were right in doing so because it is a core tenant of their church that Christians can’t file lawsuits! The merits of her “discrimination” case here are irrelevant. The question is — can a church fire you for filing a lawsuit against it on the grounds that Christians can’t file lawsuits? Could the Catholic church, for example, plausibly fire anyone in their employ who filed a lawsuit alledging child abuse because “Catholics can’t file lawsuits and you can’t work for us if you’re not a real Catholic”??
It seems to me obvious that this is going to come down to the church having to show that they in fact ever enforced this supposed “core doctrine” by firing or ex-communicating anybody before. I suspect this is a totally novel defense on their part and that, in fact, they never asserted this before.