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September 29, 2011

Interesting Comments From Chip Lupu on Hosanna-Tabor

The Washington Post has a balanced article on the ministerial exemption and the upcoming Hosanna-Tabor case with some interesting comments from Professor Chip Lupu.  One thing Chip mentions that I had not thought about was that he expects the three female justices, Justices Ginsburg, Sotomayor, and Kagan, to vote for a narrow ministerial exemption (assuming that they vote for an exemption) for the reason that they will want to protect teachers in religious schools who are likely to be women.  I am not sure how these Justices would vote, but I think I agree with Chip that some or perhaps even all three of them are likely to vote for a narrow exemption.  For example, I think Justice Kagan's dissent in Arizona v. Winn was some indication of her views of religion clause questions, though that case implicated EC issues, and these Justices' views of the FEC is largely a mystery.  But I had not considered the particular reason that Chip offers.  But if this is a reason to vote against the ME, I don't think it's one which would apply to a variety of (perhaps even many) situations in which the ministerial exemption would otherwise apply.  Do others disagree with me?  [x-posted CLR Forum]

Posted by Marc DeGirolami on September 29, 2011 at 06:06 PM in DeGirolami, Marc | Permalink

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I think those three votes are probably lost regardless of gender-based concerns. However, I think Lupu is right to flag that as an extra reason.

Gender seems to me the most frequent area where the ME will matter, as opposed to disability or race discrimination, and not just because the sheer numbers of women working in religious schools or hospitals is much greater than the numbers of disabled or minority workers.

Those justices, and many critics, may be willing to assume good faith regarding race, but believe that Church-run schools are patriarchal, sexist institutions. In fact, many schools do face clashes between Church teaching and secular worldviews in areas with a gendered twist, which amounts to discrimination in the view of some.

For example, Catholic schools have fired unmarried, pregnant teachers, because that is evidence of behavior not in keeping with Catholic norms, and is a role model problem for the 6th graders. That's been held to be sex discrimination, even if the school insists that it would fire any single male teacher who impregnated someone. It's disparate impact, because the school won't necessarily know about the male's pregnant girlfriend. Granted, the school can't help that, but nevertheless, that's what some courts have said.

Accommodating childbirth is also gendered, of course, and translates into litigation, too.

Thus, in my view, gender will be the most frequent area of ME litigation.

Further, it's also the area where the Church and all religious institutions most need their freedom. As long as the priesthood itself (and rabbis and ministers in some denominations) is gendered, there will be disparate impact issues regarding job positions that are reserved for priests etc., but could be performed by non-priests. For example, some universities have rules reserving the presidency for a priest. That, de facto, bars women from the presidency. So perhaps the government won't order the Church to ordain women, but they might order universities and hospitals not to reserve leadership for priests, which of course strongly affects Catholic identity at such institutions.

The case is another example of the threat the Church faces from the State today.

Posted by: joe reader | Sep 30, 2011 10:17:34 AM

Just a quick afterthought based on a rapid skim of some recent ME ct. of appeals cases:

- Rweyemamu: 2d Cir. race
- Hollins: 6th Cir. ADA
- Petruska: 3d Cir. gender discrimination
- Alicea-Hernandez: 7th Cir. national origin and gender
- Roman Catholic Diocese of Raleigh: 4th Cir. age discrimination
- Tomic: 7th Cir. age discrimination
- Rayburn: 4th Cir. gender and race discrimination
- McClure: 5th Cir. gender discrimination

This is hardly representative, but I think it shows at least diversity in the quality of discrimination claims. On the other hand, perhaps the gender discrimination claims make up the bulk of the challenges to the ME.

Posted by: Marc DeGirolami | Sep 30, 2011 11:06:00 AM

I don't have time to research and count them up, but I remember two cases, both of which involve pregnant teachers -- but neither uses the term "ministerial exception."

In Ganzy v. Allen Christian Sch., 995 F. Supp. 340 (E.D.N.Y. 1997), the school tried the statutory exception in Title VII, and the court rightly explained how it didn't apply.

In Cline v. Catholic Diocese, 206 F.3d 651 (6th Circuit 1999), the school did not even try the ME. Not sure why; maybe its rejection or narrowness in other cases made it not worth trying. The school argued that it was evenhanded as to gender and premarital sex and pregnancy.

I suspect that many other similar cases might be found under Title VII, but aren't "ME" cases because it's not been invoked. Also, I suspect that many cases are not litigated for that reason, and employers decline to fire someone they'd otherwise fire when they fear litigation. A robust ME ruling might open that door, and I suspect that, as Lupu says, the 3 female justices will not want to open that door.

In the end, though, perhaps we can agree on the easier ground that it's the sheer numbers of female teachers that make that the hot area. If an ME ruling is robust but still requires some plausible showing by the employer to trigger it, then hospitals would be hard-pressed to identify the ministerial aspect of most positions, while teaching will be the top area. The heavy gender skew in the field further increases that.

Posted by: joe reader | Sep 30, 2011 4:05:19 PM

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