Tuesday, April 12, 2011
Prof. Corbin's third post on the ministerial exception
Is here. She concludes:
[A]pplication of anti-discrimination laws like the ADA never requires that kind of direct grappling with religious doctrine or beliefs. Indeed, anti-discrimination cases may present no religious issues at all. To the extent they might, courts need not resolve theological disputes such as what role music or schoolteachers play in the church. Instead, they would be deciding whether a legitimate religious reason or an illegitimate secular reason (discrimination) motivated an employment decision. For example, imagine a church fires a teacher who has an extramarital affair, arguing that she violated the church’s proscription against sex outside marriage. In a sex discrimination case, the issue of whether sex discrimination has occurred depends on whether the school applies the religious policy equally to male and female teachers. The court will not have to resolve any doctrinal dispute or otherwise evaluate the religious merit of the proffered reason: no one questions the school’s religious belief that sex outside of marriage is forbidden. The court need not evaluate the plaintiff’s spirituality because no one disputes she engaged in forbidden conduct. The only question to be decided falls well within the court’s competence: determining whether the plaintiff’s evidence establishes that men and women were treated the same on this issue. In other words, the court judges the credibility of a religious reason, rather than whether something is religiously true. Judging the credibility of a proffered reason is within the court’s role and expertise. Resolving religious questions is not.
My view is different, but I'd welcome hearing from readers in the comments!
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/04/prof-corbins-third-post-on-the-ministerial-exception.html
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Just a few off-the-cuff examples, quite literally off the top of my head. Prof. Corbin chooses an apparently cut-and-dry example...but in the context of real lawsuits, the situations are hardly cut and dry. Lawyers are very good at effectively complicating cases, if nothing else!
Unmarried female employee gets pregnant, then is terminated for having premarital sex, which everyone agrees is against the religion of the employer. The employee argues that she was fired for becoming pregnant, not merely for having premarital sex---the employer doesn't have an after-hours monitoring system to check for premarital sex and thus male employees will, as a practical matter, never be fired for actually having sex, but female employees will if they get pregnant. Just for fun and to really tick the jury off, let's say that using birth control is also against the religion of the employer---so if she would have used birth control to avoid getting pregnant, she would have risked getting fired as well. Thus, she's being fired for pregnancy, in violation of non-discrimination laws. In my humble opinion, she'd win that case every time, despite the "easiness" of the task of separating discrimination from religious justification.
Another example: alcoholism is a disability for purposes of many state anti-discrimination statutes. Drinking alcohol is also forbidden by many religions. Employee is fired for drinking alcohol to excess...but never actually at work, and the drinking never effects his work performance. Such a situation does indeed involve direct grappling with religious doctrine.
Finally: what about where religious doctrine is flat-out in conflict with statutory anti-discrimination principles? For example, where....let's say...the president of a top-20 university must come from a pool of candidates that, for religious reasons, excludes any and all women simply because they are women? AKA where the court's choice isn't between "legitimate religious reasons" and "illegitimate secular reasons", but rather "religious reasons that would be illegitimate secular reasons if they were secular."
Anyway, it seems that Prof. Corbin's argument---at least the quoted snippet---is simply factually inaccurate. There are indeed circumstances under which applying anti-discrimination concepts does require directly grappling with religious doctrine.