While Bostock gets all the headlines - and rightly so - a couple of other short opinions from the Supreme Court this term on religion in the workplace have caught my eye.
First is Our Lady of Guadalupe School v. Morrisey-Berru. In this case, the Supreme Court decided that it was unconstitutional to protect religious school teachers from age discrimination, disability discrimination, and other civil rights violations. This was because it is a violation of the Church's First Amendment rights to interfere in any way in questions of administration concerning the Church's
ministers - a doctrine known as
the ministerial exception.
I agree that there should be a strong ministerial exception. The last thing we want is government involvement in internal Church affairs. But I think the Court got this particular case wrong.
First, clear rules are needed. The Supreme Court frequently fails to understand that, practically speaking, they don't get to make most of the decisions. A collection of diversely biased lower court judges do. By refusing to adopt a bright line and using a vague standard, there will be great danger that the courts will vary the test according to how much each judge likes the religion at issue - a terrible result from a Constitutional perspective. In my view, both majority and dissent missed the mark on this point.
Second, the two employees here were pretty typical school teachers. Although the Court said they
educated their students in the Catholic faith, the school did not even require them to be practicing Catholics - let alone avowed religious - to have this job. Yet the Court said they were
ministers protected by the exception. This seems bizarre. The Church is basically saying we have decided not to regulate these teachers' religious life; that would seem to me to be disclaiming a ministerial exception.
I wonder if Catholic hospitals could take doctors and nurses under the ministerial exception by simply requiring them to conform end-of-life patient advice to the teachings of the church? Or perhaps by requiring them to post religious messages in the hallways? This could be pretty broad.
In my opinion, the rule should be that the ministerial exception applies to every single employee that is required to be a member in good standing of the religious organization in order to have the job - and to no one else. It ties the exception to a clear indication that the Church has decided that the religious life of this person is relevant to the job. It makes for a clear and bright-line rule. Most religions have some kind of criteria for inclusion or membership, even though the level of formality varies.
And for those religions that have no membership or inclusion/exclusion criteria at all, I cannot see why they would need a privilege to exercise a power to exclude that they have religiously chosen to abandon. This would also have the benefit of encouraging each church to clearly choose: is this particular part of the organization doing a truly religious function? If so, then why would they think someone who is not even religious could do the job?
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