Hosanna-Tabor 2

Friend and esteem blogosphere coconspirator Cory Heidelberger left an excellent comment on my last post. I choose to reply to it here.

I wonder: is there room for abuse under this ruling? Does this ruling give churches cover to declare every one of their employees "ministerial" and thus remove their anti-discrimination protections? Couldn't I start the Church of Cory and declare that every person I hire, from my music director and theological research assistant down to my church bike rack polisher is in a position to represent and preach the Gospel of Cory to our congregants and seekers of truth? And then when I hear the janitor mention that he agrees with Ken Blanchard on Obama's lack of leadership, Boom! Fired!

There is certainly a potential for abuse of free exercise claims. Prison inmates have frequently sued for special privileges under the clause. Does a prison have to provide an inmate with fine French wine and steak because God told him that was holy? What about pot for a Rastafarian? So far, Courts have tried to distinguish genuine and reasonable claims from other claims.

Could Microsoft declare itself The Church of Gates, ordain all its employees, and so gain immunity from employment discrimination laws? Well, there is a Church of Satan. The biggest problem I see with the ministerial exception is that it seems to require the state to distinguish between genuine and bogus churches. That seems to me to violate the Establishment Clause. Just at this moment, I am not sure how to resolve this problem, but happily, it is as yet only a hypothetical.

Cory wants to hold on to the Court's apparent reserves in this case.

Thanks for pointing out the "called" aspect of the woman's employment. When phrased as a question of churches being able to decide who gets to serve as their own clergy, I can see the wisdom of the ruling. Extending it to gardeners and other secular(?) employees is a step too far.

The Court took very seriously the distinction between lay teachers and called teachers at the Hosanna-Tabor school. Called teachers are ministers of the church. Lay teachers need not even be Lutherans. The Court leaves open the possibility that the respondent in Hosanna-Tabor Church and School v. EEOC might have had a claim if she had been a lay teacher.

However, the Court does seem to think that the Church has pretty carte blanch to decide who is a minister and who isn't. Let's take the gardener example. Would a groundskeeper be a secular employee or a minister? That would depend on how seriously the church takes gardening. Are their religious statues on the grounds and do they have to be treated according to ceremonial rules? Many religions are strict about these things. A person who enters a Zendo (Zen Buddhist meditation room) has to enter with the left foot first and bow. That might apply to the custodian. You see the problem. If there is a distinction between lay and ministerial employees in this doctrine, it has to be up to the church to decide which is which and whether there are any of one or the other. A church might decide that all paid employees are ministerial in function.

Even Hosanna-Tabor doesn't seem completely cut and dried. It doesn't seem that Perich was fired for any religious reason. I can accept a church firing a gay pastor on the basis of their reading of scripture saying homosexuals can't be pastors. That's free exercise of religion. But was Hosanna-Tabor really exercising religion, or were they just mad at Perich for making having narcolepsy and making a stink? If that's the case, did the court wrongly apply "free exercise"... or is this firing like Fred Phelps shouting "God hates fags": one of the unpleasant but perfectly constitutional acts that we accept as a price of a strong First Amendment?

It seems pretty clear in Hosanna-Tabor that the respondent was fired not because she couldn't do her job but because she was, as Cory puts it, "making a stink". Cory seems to suggest that the Court could have taken the religious school's motives for firing Perich into account and accordingly could have refused to recognize a ministerial exception for the school.

The problem with that is that it would make the Court and therewith the state an arbiter in Church politics. This would run afoul of another doctrine of the Court. In Lemon v. Kurtzman (1971), the Court ruled that the State of Pennsylvania could not reimburse religious schools for the salaries of teachers who taught secular subjects. To avoid an Establishment Clause violation, the state would have to make absolutely sure that the activities it was funding were purely secular. That would require an "excessive entanglement."

A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.

If it is "excessive entanglement" of church and state for the state to determine whether a nun teaching algebra is just teaching algebra and not somehow preaching on the public dime, then certainly it is excessive entanglement for the Court to determine whether Hosanna-Tabor school fired Ms. Perich for religious reasons or for some other motive.

There are, no doubt, serious problems here yet to be resolved. This much seems clear: religious institutions can ordain or defrock and hire or fire whoever they choose. I am grateful to Mr. Heidelberger for his thought provoking comment.

Comments

[caheidelberger]

Thank you for introducing me to the "excessive entanglement" principle. May I challenge its applicability to Hosanna-Tabor? In Lemon, the Court declines to establish an ongoing surveillance system to monitor the use of state funds. I see that entanglement quite clearly: state bureaucrats poring over the books of parochial schools on a regular basis. Ick!

But in Hosanna-Tabor, the Court isn't being asked to entangle parochial schools with a new layer of bureaucracy. The agent of "entanglement" isn't the State, but an individual plaintiff suing to protect her basic rights as a worker. Maybe a difference of degree isn't enough to negate the doctrine, but it seems we'd have to consider that difference before applying it.

In Lemon, the rejection of entanglement didn't really deny anyone his or her rights, did it? I suppose there is some similarity: Lemon appears to say that if you choose to send your kids to parochial school, you forfeit your right to public support for your child's education. Hosanna-Tabor says that if you choose to work for a parochial school (at least in certain jobs), you surrender your right to protection from job discrimination. The latter seems... more potent? In the former, you decline a state benefit. In the former, you accept a private harm. Does that make a difference in the legal logic?

[Ken Blanchard]

Cory: parents who wish to send their children to parochial schools have to pay for an education twice: one in the form of taxes and again in the form of tuition. This is a heavy burden for families of modest means. People like the Obamas, of course, can easily afford to send their kids to any number of private schools. If you wish to say that that is a choice those parents make, fine.

If you choose to become a minister then, yes, you forfeit your right to protection from anti-discrimination laws. That is unavoidable if you wish to leave the church free to organize itself according to principles of faith. I see no way that courts could intervene in squabbles within the church without deciding what is a genuine principle of faith and what is not. If there is such a thing as "excessive entanglement", that would surely be it.

[Bill Fleming]

Sounds like somebody needs to form some good old-fashioned guilds to me. Church workers of the world unite. You have nothing to lose but your ...(help me out here Cory. There are soooo many fun word choices, I'm having trouble making one...)

[Adakoo]

thank you very much your post is very interesting

[Ken Blanchard]

Bill: we have guilds, only we call them unions. I realize that you were joking, but if church workers could unionize... see above.

[caheidelberger]

I'm still seeing a difference there, Ken. When I choose to increase my expenses by adding private school tuition to my budget, I'm harming no one. I'm not really surrendering a right; I'm just choosing not to exercise it. Under Hosanna-Tabor, the court is granting certain employers carte blanche to commit significant harm. We don't seem to need excessive entanglement to distinguish between a church firing a pastor or teacher for teaching fake Gospels and a parochial school canning someone out of discriminatory pettiness. Do we really have to throw out all oversight of employer-employee relations in this situation?

[Ken Blanchard]

Cory: yes, we do. One person's "discriminatory pettiness" is another person's standing on principle. Churches get to decide who is a member and who is a priest. Anything short of that makes the state the arbiter of inter-church squabbles. Again: if that isn't "excessive entanglement", I can't imagine what would be. Again: if a Native American religious organization tells me I can't apply for a position in their organization because I'm not a member of a tribe, that may be real harm to me, economically or otherwise, but that is their free exercise of religion. Sorry, but liberties involve costs.

[Suraj]

Carol:Well said. I am a Vanderbilt grad, BA 1975. I have a love-hate relationship with VU. I loved it when Chancellor Heard was lenidag, but seldom since. VU is in every sense run with a cold corporate hand. You understand that a Corporation is a legal person in the eyes of the law, but a corporation is not a human being, not a real person. It is a legal fiction. Corporatons are run by groups of people called Boards. They are real people, but that doesn't mean they act with humility or compassion. Vanderbilt is a corporation, and its leaders have an agenda. NEVER, since Chancellor Heard left, have I seen leaders at Vanderbilt exemplify humility or compassion. We can hardly expect them to show any favoritism toward Christian groups like CLS. To the contrary, they bend over backwards to show that political correctness must be obeyed by all organizations, including religious ones. They are not human, they are a corporation. Corporartions do not have souls.