The Supreme Court just issued a ruling in Hosanna-Tabor Lutheran Church and School v. Equal Employment Opportunity Commission. It’s an interesting situation, and the decision touches on some issues I think are really important — though sadly, I think the decision is misguided. The specifics of the case are a bit confusing, in that there’s an obvious religious angle while it’s primarily about disability discrimination in employment. SCOTUSblog has a good summary:
In June 2004, before the next term opened, [Cheryl Perich, a teacher at a Lutheran elementary school] suddenly became ill and was hospitalized. She ultimately was diagnosed with narcolepsy, and took a leave for the following school year. In January 2005, she told the school she would be cleared to return to work in February. The school, however, decided that her health would not permit her return, and a replacement was hired to teach third and fourth grades. School officials then decided it would be best if she resigned. Ultimately, Perich and school leaders came into sharp conflict, when she threatened to sue, claiming that the refusal to retain her was based on her illness, and thus the school would be charged with violating the Americans with Disabilities Act. When she tried to return to school, she was fired; she was told that she was let go because of her threat to sue, which violated a Lutheran religious tenet that members of the faith should resolve internally their disagreements.
The court found for the school, finding a “ministerial exception” to employment discrimination laws. The argument they make was that First Amendment religious freedom requires that religions be free to choose their leaders. Most of the controversy here focuses on whether teacher in question was really a “minister,” but I’m sort of okay with saying she was — she taught secular subjects primarily, but did lead the class in prayers a couple times a day and taught one small religious class. My bigger issue is with the idea that there’s a ministerial exception at all.
I should say, there is one obvious way in which religious groups discriminate in hiring that I’m totally fine with, and that’s that they hire people of their own religion. I’m fine with a ministerial “exception” to laws against employment discrimination based on religion. But that comes out of my general ideas about discrimination. Race is usually irrelevant to performing your job, so not hiring someone because of their race is unfair. We do, however, make an exception when it’s relevant. No one’s going to be upset because a casting director hires a black actor to play Coalhouse Walker Jr. or a white actor to play Macbeth. Similarly, offices of religious authority are some of the few jobs where your religion really is relevant to doing the job well, so of course it should be considered.
But there’s no reason that the disability of a teacher is more important to a religious school than a secular school. And the final issue, that of whether one shares this particular, apparently sacred (read: pulled-out-of-their-asses) belief that it’s against Lutheran Christianity for a person to sue a Lutheran organization, is obviously not related to qualification for the job Perich held. So why a religious exemption?
The Supreme Court ruled in Employment Division v. Smith that “a neutral law of generally applicability” could be enforced even when doing so violated someone’s religion. And honestly, this makes perfect sense. It would be absurd to operate under any other standard. Satanists can’t just say, “But our religious beliefs require that we kill people!” and get exempted from murder laws. This has also been applied to a variety of less blindingly absurd things — paying taxes, being required to remove veils for driver’s license pictures, etc. Religious freedom doesn’t mean that religious people get free reign to break all the laws they feel like. (…As Hosanna-Tabor Lutheran Church and School was obviously trying to do in this situation.) It simply means that the government can’t ban a religion itself, and can’t ban other things just because they are part of a religion they don’t like.
Let’s say that a religious school wanted to hire pedophiles to teach kindergarten. (Hypothetically! Just a hypothetical, yeah….) Should we grant that school an exemption from laws that protect children from molestation? I think most people would be horrified at that prospect. What about if they wanted to hire only white people? In this continuum of otherwise illegal hiring metrics, where do you draw the line? I think there’s an easy way — you draw the same line you would with a secular private school, with the single sensible exception of making sure they believe the religion if they’re going to be teaching it.
I do understand that there are cases where fully removing discrimination exceptions would have a big impact. Should we make the Catholic Church hire female priests? Well, I would say yes. “My religion told me it’s okay to discriminate on gender” isn’t any better of an excuse than “My religion told me it’s okay to murder.” Obviously the degree of harm caused by letting them get away with it is less, but I don’t think the logic is any better.