A few days ago, I put up a short post on the Herx case -- having to do with a discrimination lawsuit against a Catholic school by a teacher -- and characterized the trial court's ruling -- rejecting the school's ministerial-exception argument -- as misguided. (I didn't post the link to the opinion, but it is here. Reading it again, I continue to think it is off-the-mark.)
A reader wrote in with some questions and -- with permission -- I'm posting some of them, and saying a bit in response, here . . .
I’d be interested in reading in the future your response to the judge’s distinction between the Herx and Perich, the teacher in Hosanna-Tabor. I think his approach is quite sound.
I think the trial judge read Hosanna-Tabor far too narrowly and incorrectly focused simply on the question whether the teacher in question is "ordained" or is instead a "lay teacher." Under the terms of her contract, it is quite clear (to me) that she is expected to be, and is held out as being, charged with the formation in the faith -- through example, teaching, and witness -- of the school's students. That she is not an ordained minister or a theology teacher should not end the inquiry. The trial judge's approach is, it seems to me, closer to the one employed by the Sixth Circuit in Hosanna-Tabor than by the one employed by the (unanimous) Supreme Court.
I’d also be interested in reading more about your proposed presumption that K-8 teachers in parochial schools are ministers. I’ve had kids on the younger end of that spectrum in religious school (probably not parochial since the school was affiliated with a Catholic university run by a religious order) and it frankly never occurred to me that the teachers were all “ministers” unless that term is defined very broadly such that the cafeteria staff, janitors, etc. are also included.
I think it is easy to draw a line between "teachers" and "cafeteria staff, janitors, etc." In my view, given the mission of Catholic parochial schools as it is described in the writings on Catholic education by recent popes and by the relevant USCCB bodies, a teacher (lay or ordained) at a Catholic school is a "minister" of the Church within the meaning of Hosanna-Tabor. Whether or not courts will agree with me is, of course, an open question. I suspect, in the current climate, many will not.
My reader's question does underscore for me the importance of making as clear as possible -- and of making more clear than some Catholic schools have done in the past -- how the school conceives of its mission and of its teachers' role.
Getting more specific, would you apply this presumption to Herx (who did not teach religion classes and had a contract different from teachers who did)? How about a teacher who did not share the parochial school’s religious affiliation (Herx and Perich did but I think you’ll agree that this fact pattern does arise)? What if the parochial school didn’t have any religion classes or chapel services at all or had special teachers, perhaps more recognizable as “ministers,” lead them? In other words, how would the presumption be overcome, if indeed it could be overcome and is not simply a “church always wins” rule?
I would apply the "presumption" to any teacher in a K-8 school, regardless of whether that teacher is a Roman Catholic or not. (Again, I'm assuming that every teacher's contract does, or should, speak clearly about the school's mission and the teachers' role.) A Catholic school should not lose the right to make mission-related decisions in the hiring context simply because, in some cases, the school decides that a non-Catholic can advance that mission. (I think it is obvious that, in many cases, non-Catholics support and advance the distinctly Catholic mission of Catholic schools.)
If a "parochial school didn’t have any religion classes or chapel services at all," then I'd think it wasn't much of a parochial school. I'd be surprised if many, or any, K-8 Catholic schools fit this description.
I'm thinking that the "presumption" could be overcome if, in the circumstances of a particular case, it was clear that the teacher was not expected by the school to play any role in the formation of the students and this fact was made clear to the teacher as well as to the relevant parents. But, yes, in cases involving a "parochial school" -- that is, a traditional K-8 meaningfully Catholic school -- the school should usually win.
To be clear . . . none of this means that the school is behaving well, or fairly, or justly, or that a particular decision cannot be criticized on moral or fairness grounds. As I wrote here, and in more detail here. . .
Here's a bit that jumped out at me, from Cardinal George's recent column, "A Tale of Two Churches":
. . . Swimming against the tide means limiting one’s access to positions of prestige and power in society. It means that those who choose to live by the Catholic faith will not be welcomed as political candidates to national office, will not sit on editorial boards of major newspapers, will not be at home on most university faculties, will not have successful careers as actors and entertainers. Nor will their children, who will also be suspect. Since all public institutions, no matter who owns or operates them, will be agents of the government and conform their activities to the demands of the official religion, the practice of medicine and law will become more difficult for faithful Catholics . . .
Generally speaking, I've thought (and tried to speak and write) more in terms of engagement and participation than retreat and retrieval. Generally speaking, I've thought it important to insist -- even as I find much to admire in the MacIntyre-ish localism / roots / place / "build community" themes that run through, say, the stuff at Front Porch Republic -- that it continues to be important to do all one can, in politics, law, and litigation, to protect the rights and place of religious believers and institutions in the public square and in the public conversation. Not too long ago, I might have thought that Cardinal George was being a bit too pessimistic. Now . . . I'm not sure he is.
On Friday, I'm giving a lecture (thanks to the University of Arizona and the Notre Dame Alumni Association) in Tucson on "Law, Religion, and Politics: Understanding the Separation of Church and State." More info here. In a nutshell: "Healthy secularity" is way to understand "the separation of church and state" and this understanding is good for religious freedom.
Saturday, September 13, 2014
The other day I found myself re-reading Pope Francis’ recent exhortation, Evangelii Gaudiem. In light of last week’s news, the following excerpt jumped out at me where he discusses how we are all invited:
…to receive God’s love and to love him in return with the very love which is his gift, bring[ing] forth in our lives and actions a primary and fundamental response: to desire, seek and protect the good of others.
The message is one which we often take for granted, and can repeat almost mechanically, without necessarily ensuring that it has a real effect on our lives and in our communities. (Evangelii Gaudiem, para. 178)
Later in the document, when more specifically discussing this call to protect the most vulnerable in society, Pope Francis singles out victims of domestic violence. He writes “[d]oubly poor are those women who endure situations of exclusion, mistreatment and violence, since they are frequently less able to defend their rights.” (Evangelii Gaudiem, para. 212)
As I previously blogged, much of this last week has demonstrated how society has taken for granted, indeed, accepted a certain level of violence against women, thereby negatively “affecting our lives and communities.” However, Thursday also demonstrated how some women senators have engaged in the very actions Pope Francis exhorts us all to do.
A bipartisan group of 16 women senators wrote Commissioner Roger Goodell expressing dismay with the NFL’s “policy” regarding domestic violence. Central to this letter is this most basic but poignant observation:
We are deeply concerned that the NFL’s new policy, announced last month, would allow a player to commit a violent act against a woman and return after a short suspension. If you violently assault a woman, you shouldn’t get a second chance to play football in the NFL.
The NFL is a major American business whose teams split $6 billion in revenue in 2013. I would hope that in most businesses if an employee (let alone a public figure) knocked a co-worker unconscious and was indicted, he would be severely disciplined. This certainly would be true if he beat unconscious a person because of his or her class, religion, or creed. But somehow it is not true if he beat unconscious a person because of her gender. That apparently is more acceptable.
I am pleased that these senators are seeking to help protect women. It is sad, however, that this business needs to be told this basic truth: “If you violently assault a woman, you shouldn’t get a second chance to play football in the NFL.”
A full text of the letter can be found here.
Friday, September 12, 2014
(from Tom Berg:) I'm very pleased to tell others about an amicus curiae brief, filed in the U.S. Supreme Court yesterday by 23 pro-life organizations in Young v. United Parcel Service, an important case involving the Pregnancy Discrimination Act of 1978 (the PDA). The brief, which supports the pregnant employee who filed suit against UPS, is by pro-life organizations from across the political spectrum, from Concerned Women for America and the Southern Baptists to Feminists for Nonviolent Choices and Democrats for Life. Here are a couple of news releases, from St. Thomas Law and from the Democrats for Life (on whose board I sit), each summarizing the case (and also linking to the brief).
The filing of the brief makes important statements that, I think, are noteworthy in our society polarized over the “life” issue and how to address it. In this, a variety of pro-life groups with different missions, who disagree on other things, have come together to emphasize that supporting pregnant women is a fundamentally pro-life position. I suspect that, in our polarized atmosphere, some people may be surprised that a bunch of pro-life groups have filed to support working women—so spread the news!
I worked along with several other counsel, including my colleague Teresa Collett, to organize and draft the brief. And yet another St. Thomas Law colleague, MOJ's own Lisa Schiltz, made important contributions to the brief as well. (Go Tommies!)
The case involves Peggy Young, a driver for UPS who became pregnant and, based on the doctor’s note concerning lifting restrictions, sought to be switched to “light duty” work for the remaining few months of her pregnancy. UPS had provided such an accommodation for several significant categories of employees, including those injured on the job, those with disabilities, and those who had lost their commercial driving license for various medical reasons—but it refused to accommodate Young. She was forced to take an unpaid leave and lost her employer-provided health insurance for several months. Young sued under the PDA, which requires that pregnant women be treated the same as other employees “similar in their ability or inability to work.” Although UPS had made the accommodations mentioned above, the lower courts ruled against Young because there were other categories of employees UPS had not accommodated (e.g. off-the-job injuries); essentially, the court said that pregnancy was not discriminated against if it was treated no worse than those and was not ”singled out” for denial. Young is seeking reversal in the Supreme Court.
The case raises an important issue concerning the effectiveness of the PDA’s protection for pregnant employees, since many employers make accommodations for some but not all employees with physical limitations. The pro-life organizations’ brief argues that pregnancy should be treated as well as conditions the employer deems important enough to accommodate, not as poorly as conditions the employer refuses to accommodate. The brief points to the background of the PDA, which had support in 1978 from pro-life groups and pro-life members of Congress. Their rationale was that protecting pregnant women from discrimination reduced pressure on economically vulnerable women to abort their children, and strengthens the fundamental right to bear children and raise a family. The brief makes those arguments as well.
Counsel of record are Carrie Severino and Jonathan Keim of the Judicial Education Project (also an amicus).
Cross-posted (with minor changes) at Whole Life Democrat
