God vs Gavel
The Ministerial Exception Makes It to the Supreme Court
On the other side are the employees who find themselves shocked by a religious institution they intuitively trusted that fires them in violation of our shared cultural norm against many kinds of discrimination. Cases have involved racial, gender, and disability discrimination. They also have involved sexual harassment. For example, seminaries have argued that seminarians may not bring a sexual harassment claim after the seminarian was sexually propositioned by superiors.
This is a clash of old-time First Amendment thinking—which treats religious institutions as benign institutions that should be left to their own devices—and civil rights. Americans have an instinct for fairness and justice, and assume that if anyone, including their religious employer, treats them discriminatorily, they should have legal recourse. But religious institutions and their lawyers sink tremendous resources into blocking such legal recourse. (Never forget—all those who hold power are likely to abuse it in some way, and religious institutions are run by humans, not gods.) The church in this case is seeking the right to exclude the courts from "interfering" with their employment decisions.
If the church school wins this case, which it should not, I think that Congress and the state legislatures owe it to potential employees of religious institutions to warn them of their lack of protection from invidious discrimination. Most come into such institutions expecting that they will receive better treatment than your average corporation. Without such a warning, employees unwittingly place themselves in a position of weakness and risk at work. All religious institutions should be required to include language in their employment contracts that states the following:
This is a religious institution, which treats all of its employees as though they are religious. You must understand that that means that we will take the position if we discriminate against you that the federal and state anti-discrimination laws cannot apply. Therefore, if this institution engages in invidious racial, gender, or disability discrimination against you, you may have no legal recourse.
This is what is at stake in this case.
Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law, Benjamin N. Cardozo School of Law, Yeshiva University and author of Justice Denied: What America Must Do to Protect Its Children (Cambridge, 2008) and God vs. the Gavel: Religion and the Rule of Law (Cambridge, 2005, 2007).