Discrimination

in High Places

The recent Supreme Court case that carves out and clarifies the "ministerial exception" to anti-discrimination statutes means no religious body may be sued under the federal statutes that address discrimination for discriminating against them. A catholic school can fire a teaching priest if they don't like that he is gay, or black UNDER FEDERAL Title VII or other federal discrimination statutes.

But it says nothing about the State Anti Discrimination laws that protect people from discriminatory actions under for example the DC Human Rights Act, or the similar state anti-discrimination statutes that exist in most states and sometimes have greater protections than the federal scheme. For example, the DC Human Rights act makes it illegal to discriminate against anyone on the basis of marital status or gayness and the Federal Title VII has no such protection.

If the state statute addresses marital discrimination, it is against the law to fire someone in that state for marrying someone. But that's basically the Catholic church's policy with regard to married priests. If you get married you get fired. The Chief Justice who is closely tied with the Catholic hierarchy is here protecting institutional policies, but he can't nullify state statutes.

The ruling made its way immediately into the Catholic Standard on line as if any 'minister' of the Catholic chuch is actually feeling discriminated against and needs to know that. One wonders why they got so excited about the ruling whose significance is largely overplayed given the state anti-discrimination laws. Is someone about to fire a bunch of gay priests? Or does someone want to get married maybe that they are trying to put fear of God in? These statutes generally provide for future wage loss claims so that if someone who was a career priest and told essentially once a priest always a priest, and he gets fired for coming out of the closet, he could get theoretically all his future priestly earnings in judgment or settlement.

The DC Human Right Act was amended and modified in 2010 to specifically exclude gayness as something that fell under it for any religious institution or school, meaning in DC if you are a priest and fired for being gay you are out of luck. Gay discrimination for religious institutions is specifically allowed in DC. But there appears no such modification for the marital anti discrimination provision. You cannot discriminate against anyone for being married. Lets see whether that one ever gets tested anywhere. It is a basic fundamental constitutional right for heterosexuals of majority age to marry.

The ruling is disturbing in the following aspect. Many conservative religious schools have a hiring bias for men at high levels and this ruling allows 'ministerial' to be construed so broadly that if any professor of any catholic or lutheran or evangelical college is required to lead a bible study or take students to Mass in addition to teaching algebra, they are construed as 'ministerial'
and thus hiring,firing, promotion and demotion decisions that are discriminatory toward the female staff would be federally unactionable. The ruling sends a wrong message in that regard, and schools would still be well advised to look at what the state statutes say- Pennsylvania has a pretty good scheme for Human and Equal Rights protection under their state statute.

In the final analysis, this might be considered more appropriately what a legislature should do in defining the breadth of its own discrimination statutes just as DC was able apparently to modify its DC Human Rights Act.
One lesson learned from past foibles of the conservative block of the Court's ruling against someone named Lilly Leadbetter should inform them that they don't always get the last word on these subjects.

If Villanova University wants to pay a male theology professor twice as much as the same credentialled female theology professor there is apparently now no sense in making a federal issue of it. Apparently that is OK so long as they can be classified 'ministerial.' Wrong message fellas. Before your Board at Catholic and Evangelical schools start saying -Lets look at our budget and cut all the black and female ministers salaries in half- you should check your state statutes.