Monday, October 10, 2011
The wrong question about the ministerial exception
In her report on the Hosanna-Tabor oral arguments, Dahlia Lithwick says, "[t]he Supreme Court asks which is more important: preventing discrimination or protecting religion?" But, this is not the question. That is, this case is not about the "importance" of preventing discrimination." That a goal is "important" does not mean that the government has the power to pursue it by any and all means. As I see it, the claim in H-T is not that the government's interest in preventing that discrimination that it has the power to prevent is not important; it is, instead, that -- given our commitment to religious freedom and its church-state-separation dimension -- there are some contexts in which the government's otherwise available power to prevent discrimination is blocked.
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/10/the-wrong-question-about-the-ministerial-exception.html
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Even if you were able to determine who is and is not serving in the ministerial capacity at a Religious School, how would this change the fact that although Religious Schools have the Right to hire only those who support the Religious mission of their Church, they do not have a right to discriminate against someone who supports the Church's mission but has a disability.