Last week, I posted at BCC about a Supreme Court case that upheld the right of companies that claim religious belief as grounds to refuse to cover birth control under the ACA. You can read that post at this link. My conclusions were that this is further evidence that companies (non-religious and religious) need to get out of our health care, that birth control for women is frequently used for treatments of routine ailments that are not contraception related, and that women bear disproportionate economic penalties for child rearing, penalties that neither the government nor these over-controlling companies have done anything to remedy.
There was a different case that bears some scrutiny. A Catholic school in California claimed “ministerial exception” in a case around the firing of two women teachers. This exception exists to allow religious organizations latitude in whom they hire and fire to preach on behalf of their Church. The gist is that they are exempt from non-discrimination laws that apply to non-religious companies when a position is identified as “ministerial.” CES has infamously used this in the past (as also referenced in my BCC post last week) as grounds to fire any paid seminary teacher who is female and has a baby or to refuse to hire any female with a child between the ages of 0 and 18 years, although there was no objection to women with children as unpaid volunteers or in secretarial roles supporting the men.[1]
Back to the Catholic schools, one of the two women was fired because she requested a leave of absence for breast cancer treatment. The other woman was fired because of her age. The Supreme Court upheld the religious liberty of the Catholic schools to make its own hiring and firing decisions without government oversight to maintain separation of Church and state. It was a 7-2 decision with Sotomayor and Ginsberg dissenting.
As I said in my BCC post, I am not a lawyer (IANAL), but I do have decades of executive business experience in which I followed anti-discrimination laws, and I am both a voter and a life-long religious adherent. To me, the open questions are:
- What are the borders of “religious organizations”?
- Are all teachers ministers or just paid teachers or just those teaching classes defined as religious?
- Are religions exploiting these rules to flout anti-discrimination (e.g. anti-LGBT, anti-women, anti-minority) or are they acting in good faith? (no pun intended, but I’ll take it)
These are valid questions, and they are the basis of this decision.
Back before no-fault divorce was a legal norm, it used to be pre-requisite in some states for a couple to demonstrate a specific type of physical violence to obtain a divorce. Miraculously, when these laws were passed, couples immediately came forward with the exact abuse claims and evidence that the law required to get the divorce they wanted. Who says people in bad marriages can’t work together?
Why do I bring up these antiquated divorce rules? Because when the law requires a specific behavior to get a desired outcome, people will produce the evidence required to obtain what they want. Here’s another example. Back in the 90s, our new HR director, hired because of all the discrimination complaints, did a training with the hiring managers to explain once again the anti-discrimination laws to them. She explained that if a woman is visibly pregnant you can’t ask her about it in the interview. One of the managers raised her hand and asked in all seriousness, “So you just have to come up with another reason not to hire her, right?”
Basically, that manager was correct, even though her thinking was obviously unethical. These types of “reasons” are used to get around discrimination all the time. While I was at American Express, I was over the Affirmation Action goals for my business unit, and we did routine reviews of our progress. The requirement was that we source a representative slate of diverse candidates (specifically racial minorities and women), but then it was up to the hiring leader to make the selection. If they chose a non-diverse candidate, taking us further away from our Affirmative Action goals, they just had to explain their decision.
And it’s always easy to explain! You can say that the candidate was just not as qualified in some specific way, highlighting something in their resume or lacking in their resume. You can say that their answers were weak. To apply the language used in politics when objecting to female candidates, you can say they just weren’t likable. Essentially, our biases are blind spots we have (because we’re not racists or sexists in our own minds) and all hiring is subjective anyway. Every hiring decision is a post hoc justification of our (largely subconscious) emotional reaction to a candidate. Sometimes we just like someone and we trust them. We don’t really know why. But we can certainly talk as if we do!
And yet, knowing all that, I still believe we should force those who hire and fire people to have the discussion, to challenge their assumptions that discrimination is OK. We should still require that people go through the hoops of anti-discrimination, to attempt to level the playing field and be fair. If we don’t require that, you can literally fire people (or not hire them) for any reason at all! For having breast cancer or getting old.
Returning to the three discussion points, the borders of what constitutes a religious organization have become very blurry in the last few years. Hobby Lobby pushed to be able to deny contraceptive coverage to women on grounds of religious belief, even though they are not a religion and we force our citizens to get healthcare through their employers in this country. In my opinion, and as stated in my other OP, this is madness. If you are a for-profit company, you can’t claim religious exemption. Period! It’s unethical. You bake the cake, you provide full healthcare coverage. You are operating in the public sphere. The rules of society apply!
But what about religion-adjacent organizations, like schools (as in this case)? As someone asked on a podcast, what about the roles within those organizations? Do you get the same latitude in hiring and firing a janitor as you do with a teacher? Bear in mind that many of these same schools and churches were first in line for PPP funds provided by “we the people,” but they also want to be able to discriminate with no consequences. Is a math teacher a “minister”? Is the grounds crew ministerial? Religions would like to maximize the latitude they have to discriminate while minimizing oversight, yet they still want to get public funding. There’s a fine line between creating a pluralistic society in which religions are respected and creating an alternate fiefdom in which religions are sovereign, but using our money to pay for it. [2]
Our Church has used “ministerial exception” for teachers, but has applied the most restrictive religious-based requirements for those specifically teaching religion classes rather than teaching biology or English. However, a school like BYU has the right to discriminate based on whatever it chooses, whether it is an accurate reflection of the Church’s beliefs or not. For example, the Church can ask a female candidate for a university position if her husband is disabled or why they don’t have children or whether she plans to quit if she has children or how her child care will be handled (any of which could be asked of male candidates but seldom are) and it would not be illegal as it would be for any other non-religious employer. But as we all know, the Church has never refused to accept a tithing donation from a woman who works under these various conditions.
Additionally, the Church can use “ministerial exception” to bar women from positions by claiming that the roles require priesthood ordination. The grounds for prohibiting women from these theoretical paid roles is that they are not “ministers,” due to lack of ordination, but when we send women to foreign countries to serve missions, their Visa applications identify them as “ministers.”
These appear to be cases of doing what’s legal without considering what’s ethical, fair or right, and when we are talking about “religious freedom,” we are sacrificing the latter to “free” religious organizations and their subsidiaries from accountability to society, allowing them the freedom to make whatever decisions they deem appropriate.
The problem is that these challenges to assumptions in hiring and firing are valuable to society and to organizations. Without forcing the defense of hiring and firing decisions, we usually end up with decisions that are indefensible. Personally, I have to include firing someone for getting breast cancer or firing someone for getting old in the category of indefensible terminations. Even if the reasons produced are ultimately bullcrap, I’d rather make someone question what they are doing than think they are doing what’s right. If you read the Exponent II interview about CES firing women who became pregnant, you’ll know just what I mean. The CES manager who answers the questions employs a lot of double speak to imply that no woman ever, regardless her circumstances, wants to earn a living teaching seminary when she has any children between 0 and 18. April Young Bennett (the interviewer) nails this down like a pro:
Question: Is it true that mothers may not be seminary teachers?
Answer: No, that is not true. Mothers of young children are discouraged from being seminary teachers.Question: So CES does hire mothers to be seminary teachers?
Answer: CES will hire mothers whose children are all over 18 and whose children have all graduated from high school.Question: CES also hires women without children to be seminary teachers, right?
Answer: That is correct.Question: What happens to a female seminary teacher who has a baby? Can she continue teaching seminary?
Answer: She stops teaching seminary when she has a baby.Question: She is fired?
Answer: No. Female seminary teachers understand this when they are hired. They know that they will only work as seminary teachers until they have children.Question: Do they have the option of continuing to teach when they become mothers?
Answer: They do not want to keep working full-time after they have children. They want to stay home with their children.Question: Doesn’t the Family Medical Leave Act require employers to allow mothers to return to work after maternity leave?
Answer: The Church has met all of the legal requirements to implement this policy.Question: Do the same policies apply to institute teachers?
Answer: Yes.Question: May mothers of young children work for CES in other capacities, such as secretaries or administrators?
Answer: Yes. Institute and seminary teaching positions have unique requirements. We do have young mothers working at CES in other kinds of positions and in other church departments.Question: Do the same policies apply to unpaid seminary teachers?
Answer: No. Seminary teachers who teach as a calling only teach one class a day, not full-time, so local Stake Presidents decide who should have these callings.Question: Are these policies available online?
Answer: We do not publicize our policies but we explain them when we train potential teachers and when someone like you calls and asks about them.
So, why did this discriminatory policy ultimately change? Personally, I believe it’s a clear link to articles like this one that highlight just how ridiculous their justifications were. Sunshine is the best disinfectant.
I won’t go so far as to say that religions aren’t acting in good faith in their decision-making, only that they don’t have to question their assumptions at all because the law allows them to discriminate. Any efforts on the part of religions to expand their legal cover only exacerbates this problem, resulting in some incredibly inhumane employment practices.
What do you think? Let’s pretend you’re on the Supreme Court making these types of rulings. How would you weigh in on the following?
- Do religions get too much latitude to discriminate or just the right amount? Should they have more or less “freedom” to make their own rules?
- Should religions be restricted from receiving government benefits funded by taxpayers when they are using their status as a religious organization to avoid anti-discrimination restrictions?
- How should we define a religious organization? Just churches? Their subsidiaries? Universities? The Polynesian Cultural Center? A hairdresser with scripture quotes plastered on her walls who wants to claim her business is a ministry? Anyone at all with a religious belief who owns a company? [3]
- What roles should we identify as “ministerial” in nature? Decision-makers? All teachers? Administrators? Janitors? Should we require religions to demonstrate in what way a role is “ministerial”? Should that definition be broad or narrow?
Discuss.
[1] This policy–that never should have existed because it’s utterly reprehensible–has since been changed.
[2] Literally requiring society to build the wall to protect them, and to pay for the wall.
[3] Some conservatives who clamor for “religious freedom” appear to be attempting to circumvent anti-discrimination laws whatever way they can.
Wheat & Tares 
This is a very complex topic with many different circumstances. It’s hard to know where to begin but I love the line “sunshine is the best disinfectant”. In other words, transparency is very powerful. And I think more of that is needed from organizations that claim to be religious and that want religious exemptions. If an organization is determined to discriminate for reasons it thinks is perfectly acceptable and justifiable, let’s require it to put its policies in writing for all to see (on the corp web site for example).
There are so many examples where transparency could make a difference. The Church and it’s $100B. Corporations and their campaign contributions. I’m the kind of person who doesn’t want to regulate others’ behavior. But I want that behavior (organizational) out in the open. If the Church wants to discriminate against women in its hiring practices, let them do so but make them publish a policy for all to see.
I’m aware of the quagmire that is courts evaluating religious rules, doctrines and canon law decisions. I’ve litigated in that area.
But there has to be a better way.
“ Sometimes we just like someone and we trust them. We don’t really know why. But we can certainly talk as if we do!”
I’d almost say *always* instead of sometimes.
My turning point came from statistical analysis. Companies with strong affirmative action programs out perform those without. That is strong statistical proof that inherent prejudice results in bias in employment.
Otherwise, even though I’m a retired lawyer I was one of five (out of five hundred) who handled cases in this area for our company’s insured. I was amazed at how far the ministry exception went.
Even more, someone could have taught a class to graduate students for twenty years and then have a new university administrator who interpreted things differently and lose a job.
I understand the inverse. I’ve seen abuses by the EEOC. But I still don’t like it the rules (and 7-2 decisions tell you a lot). And the law was on my side in my cases.
But I agree with you.
The exception should be narrow. It should apply only to core religious functions and to core executives.
I realize that there are hairdressers and others who in good faith believe that what they do is a ministry. I’ve met some and some are incredibly good hearted. The same with schools.
I’ve known people who walked away from privilege and wealth to teach or run educational programs for the poorest among us. They did it as a calling. (I even agreed to help one group pro bono—but they would make Hawk proud in their approach).
But even so, especially if tax money goes out, they should play by a better set of rules. Or if they are public accommodations they should play be better rules.
We should be better
If these organizations and businesses are receiving public funds in any way, that blurs the lines of separation of church and state. It creates state-sponsored churches, which are expressly prohibited by the Establishment Clause in both letter and spirit. As was mentioned earlier, at the very least we need public accountability and oversight.
In spite of these recent rulings, I imagine in the next decade or so, the U.S. will become more like prosperous European countries are today–more progressive and secular, despite the fact that they are dotted with gorgeous centuries-old religious edifices, keep major Christian holidays on their calendars and some of their governments still sponsor state churches. As the German saying goes, “Die Kirche im Dorf lassen!” (Leave the church in the village!). We Americans are still trying to figure out our relationship with religion in the public square; Europeans had a head start of a few centuries.
For things to turn around in the Church, 2 things need to happen:
1. Prez Oaks et al. need to give up their obsession with “religious freedom.” For the outside observer (and myself) it appears like we are trying to protect our right to discriminate against women, SSM and SSA, and the LGBTQ+ community. The crusade is wasting a lot of Church resources and is misdirected.
2. Women need real leadership positions in the Church. They need to be included in all important decisions. Then perhaps the misallocation of resources would be substantially reduced. And more Christlike decisions made. More emphasis placed on equality and assisting the poor and less on poorly thought out legalistic issues.
Jack, the Church gets all sorts of subsides from the Federal government, perhaps the biggest is its tax-free status.
I am okay with the ministerial exception — it is crucially important. Pendulums swing, but it is probably better that courts stay as far away from this as possible.
If an ultra-Orthodox Jewish synagogue wants to establish a school, and they want teachers who will help further their religious aims in addition to teaching academics, I am okay with that. If they want to limit the groundskeeping staff to synagogue members because they feel safer that way, I am okay with that, too. A court should not command such a school to hire an avowed atheist or militant Muslim or even a moderate Mormon against the wishes of the school.
I feel differently for for-profit companies.
For other non-religious non-profits, I am okay with allowing, for example, NOW to hire only proud Pro-Lifers, even for non-advocacy positions such as the janitor, if they want to.
ji: Thanks for weighing in, even if we don’t fully agree. I do agree with your two extreme examples, that a religion should be able to hire (for specific positions) people who hold their beliefs, BUT when a person is fired for having breast cancer or getting too old, there needs to be some kind of justification as to why they were OK before the diagnosis and not OK now. That’s just being ethical and fair.
However, I’m also totally of the mind that working for a religious organization is the worst idea I can imagine. They won’t pay well, they will discriminate (legally), and if you ever get in a dispute with them, your faith will be attacked. No thanks!
Angela,
I agree that the beast cancer case is unfortunate and makes for bad optics, but that is the case that worked its way up. The court’s decision was based on an important principle, though, and I support that principle.
I also agree with your second point about working for religious organizations — anyone thinking about doing so needs to know that many “normal” laws that apply to other employers simply do not apply to religious organization employers.
I hesitate to say anything because I do not know this area of law and react more to headlines than out of deep understanding. But at a headline level, I am incredulous about some of the claims made. In other words, I do read bad faith into them. I have wondered whether we would do better to flip the presumptions and ask of churches that they make efforts—analogous to “reasonable accommodation” in general employment law—to include people with a disability, of an older age, of the ‘other’ sex or gender, of some ‘other’ religious affiliation. There would be plenty of instances where no reasonable accommodation is possible, but I wonder whether we’d get a better set of lines drawn if we made the church prove its case?
I have to admit that I have toyed with others a few times when they were crying about religious persecution. I ask them to explain their issue, then I repeat it back except I take where they say “Christian” and replace it with “Muslim” and most times they just seem to get mad and don’t want to talk. I think I picked up this trick from the book, “How to win friends and influence people” 🙂
I absolutely agree with the statement of sunshine being the best disinfectant. And that goes way beyond this topic.
Interesting that Oaks and Bednar have both cried “religious persecution” where there is none. Parties external to the Church don’t take them seriously in my opinion. And interesting because they are virtue signaling to an internal audience and because they may well be our next two Church presidents. Like the Chinese saying “may you live in interesting times”.
This decision has the potential to create problems for Church employees….including (perhaps especially for) faculty at all of the BYU campuses. Those faculty already lack the protections of traditional tenure–the substitute “continuing faculty status” may seem comparable, but in reality provides only a modicum of protection for academic freedom–and now there is the not unlikely prospect of positions becoming even more precarious due to the discretion the administration will have. Quite concerning.
I fail to understand why there should be exceptions for religious institutions, to allow them to discriminate. Where there have been excemptions they have abused them. Amazed at the claims by Bedinar, and Oaks.
Religions are damaging their credibility with this stuff.
We have a conservative government, who mentioned religious freedom, when they first got in, they had a senior politition do a report, it revealed that schools could exclude gay students, haven’t heard of religious freedom since. Not something you can sell in Australia.
Religious organizations have way too much privilege in the US. Their tax-exempt status needs to be revoked, for one.
It seems historically, the founders of the US and subsequently courts gave religions undue exceptions because they were, well, religions. And religion was generally thought of to be good and worthy of such exceptions. In light of the recent ruling allowing business owners exception to providing birth control over religious sensitivities is evidence that the ‘religion exception’ doctrine is still very much in force. But given the fact that the US has become increasingly secular and religions have lost considerable influence, laws and rulings should be made to reflect such changes.
I have to comment on Happy Hubby’s comment. You’re right. When it comes to religious freedom, a lot of people don’t want that to apply to Islam. The same people who are crying that there is no religious freedom because of gay marriage and Obamacare are the same people discriminating against Muslims and trying desperately to block construction of a mosque near Ground Zero and paranoically warning about how sharia law is coming to the US during the Obama years.
As to Jack Hughes’ comment that the United States is still trying to figure out the role of religion in the public square, something that Europe (supposedly) figured out a long time ago. I think he makes a good point. Generally, I think progressives are trying to push religious belief back to the village (Did Kirche im Dorf lassen), and religious conservatives are resisting. Die Kirche im Dorf lassen is a really very patronizing attitude and effectively removes a whole bloc of people from the public square. Europe’s growing Muslim population is pushing back against this attitude.
The mindset seems to be one of competing rights: I cannot enjoy my secular, progressive rights if I have to accommodate your religious beliefs. And conversely, religious conservatives believe that expanding LGBT rights pose a threat to their exercise of religion. Actually, both sides do not seem terribly interested in accommodating each other. The culture wars rage.
Time magazine just published an essay that asserted that John Roberts and Elena Kagan are working together to create a legal framework that supports both LGBT and secular rights, and religious rights. I thought the essay was well-reasoned, something I don’t always expect from Tine. Roberts went with the court’s liberals On the LGBT and abortion cases, and Kagan and Breyer went in favor of religious rights (Sisters of Mercy and LA Catholic schools). Roberts and Kagan have been rather successful in creating a “yes to both “ framework rather than a zero-sum game for these competing rights.
I think that attitudes are rather visceral on these issues. I think people have gut reactions that look for justifying logic. I personally would like to see people accommodate both LGBT and pro-choice rights, AND religious rights. It seems that most people are screaming that that is not possible.
Before I retired, I used to spend my lunch break sitting at my desk reading the B of M in Chinese, German, and Thai (languages that I have learned). Most people were okay with this (I didn’t read out loud, or make a show). But it really bothered some people. I actually had some people tell me that they had the right to not view my reading a religious text. I told them to file a complaint, and that was the end of it, because federal work force laws were clear about allowing what I did.
I find it ironic that Catholics are using the ministerial argument to support their (mis)treatment of women. It’s a Church in which women have little or no say and in which all instruments of power, including the administration of sacraments, are in the hands of men. As I understand it “women are ministers if by calling them that we can continue our control of them.”