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Wednesday, January 11, 2012

It's ok to discriminate ...

... if you're a church.

The supreme court (with a majority of Catholics on the bench) has voted unanimously that religious institutions don't have to worry about discriminating against the disabled in the workplace .....

Supreme Court: Discrimination laws do not protect certain employees of religious groups

[...] "The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” Chief Justice John G. Roberts Jr. wrote for the court. “But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.” When those principles are in conflict, Roberts said, “the First Amendment has struck the balance for us.”

The ruling came in the case of Cheryl Perich, a teacher who complained that Hosanna-Tabor Evangelical Lutheran Church and School in Redford, Mich., violated the Americans With Disabilities Act in 2005 when it fired her after she received a narcolepsy diagnosis .....

I think this sucks :( I know the arguments for "religious liberty" but i find it's so disheartening to see institutions that should have the highest of ethical standards and the greatest wish to help the disadvantaged instead use their power to claim exceptions to hard won civil rights.

For those interested, there's a past article on the issues in the case here - Is Religion Above the Law? by Stanley Fish


Anonymous Henry said...

Crystal, you are reading the facts in the case in a very myopic manner. Did you actually read the EEOC’s argument and think through the ramifications of their argument? If not, please read it when you are calm (I downloaded it from the Supreme Court site) and write to me if you want to caht about it. Yes, as Americans we don’t want the Church to rule over the government but we also don’t want the government to rule over the Church! Some might, but I don’t.

12:11 PM  
Blogger crystal said...

Hi Henry,

I've just gone to the SCOTUS blog page and will read up on the case. Thanks.

6:04 PM  
Blogger Mike L said...

If I am reading this right, the decision was based on the fact that the relationship between a church and its ministers may not be subjected to civil law. Had the teacher not been a minister, then she might have had a case, but since she was a minster, the matter was strictly between her and her church.

A similar case would be if a church defrocked a minister for child abuse. Civil law could neither require the church to defrock him, nor if defrock could they require the church to retain him.

I can see where this could lead to abuses, but I think it is better to take this position then to allow the law to interfere with who is and is not a minister of a church.

I suspect, Crystal, that we both fell prey to the unreliable reporting that is aimed and gaining customers rather than tell us the real situation.


Mike L

8:03 PM  
Blogger crystal said...

Hi Mike,

I understand that she was considered a minister and that therefore she fell under a "ministerial exception" but I challenge the exception and the idea that the relationship between a church and a minister stands outside civil law. Why should it be allowed to do so?

11:17 PM  
Blogger Mike L said...

I guess it stands outside of civil law under some circumstances because the Constitution of the United States says it does.

I found the SCOTUS statement to be very interesting in its description of the history of the 1st Amendment's application, and their decision seemed reasonable to me.

Would you consider it discrimination that the Catholic Church will not ordain a Muslim to the priesthood? Or that the Church cannot defrocks a child abuser?

I also note that the decision only deals with the relationship between a church and its ministers. If I am reading this right had she not been a minister of that church she would have been able to sue.

I also note that when a priest is abusive, this decision does not stop the victim from suing the Church. I find it a much more limited decision than the press is making it out to be.

That the church retaliated seems obvious to me, but if they had hired someone to take her place with the expectation that she was not going to return, would it not be a form of discrimination to fire the substitute?

I am glad that I am not a justice that has to decide these questions, that is for sure.


Mike L

8:14 AM  
Blogger crystal said...


The church doesn't want to get in trouble for discriminating when choosing ministers, but it already has the power to do that - the court doesn't now come down on them for not letting women be priests, for instance.

I guess it seems worrisome to me this ruling expands what counts as a minister to people who could be teachers too.

The lady who lost her job did so, if I understand correctly, because she had narcolepsy. That's a bad reason to fire someone. This ruling would allow the church to fire someone because they're a racial minority, because thei boss wants to sexually harrass them and they won't let him, for really any reason at all.

All the protections for people - the Civil Rights Act and the Disabilities Act - are too important to do away with just because the employer is a church. The leaders of our church have shown themselves to be willing to lie and coerce others if it's in their interests - I don't think they deserve to be so unregulated.

The New York Times had an editorial on this that is better at arguing my poin than ia m ....

2:18 PM  
Blogger Mike L said...

As much as I dislike the situation there are already churches that will not allow racial minorities to become ministers, or religious minorities for that matter. So this decision really doesn't effect that situation. Sadly, it does seem that someone could be fired for not allowing their boss to sexually harass them, but it seems it does not prevent the boss from being charged with sexual harassment.

However note that it allows a church to fire an abusive minister without having to risk a law suit. Given the reluctance of the public school system to face court challenges from fired abusive teachers I think this might be a good thing.

I would hope that churches that abuse this "ministerial exception" find themselves out of business in a short time. I do think it is a mixed bag, but I think it is the less evil of two choices.

"The lady who lost her job did so, if I understand correctly, because she had narcolepsy. That's a bad reason to fire someone." Even here I am a bit queasy and I think warrants a separate discussion. Such diseases, like sex addiction, pedophilia and alcoholism, are not curable, only arrested. Does one take a chance in letting a person suffering from such a disease deal with children? We have made a pretty firm decision on that matter with pedophilia, not so much with alcoholism, and even less with narcolepsy. Should that women have had a relapse, perhaps forgot her medication, and a child suffered from it the church would have been open to a law suit for failing to protect the child. How much risk should an organization be required to take?

I have long known that our judicial system is not based on fairness or justice but rather on law. It does, however, seem to be the best solution with the least abuse when compared to systems that attempt to base their judicial system on justice or fairness. Some examples are Sharia law or the legal system in the Soviet System.

Yes the leaders of our churches have shown themselves to be unworthy, but take a look at what happened to many Orthodox Churches that were "regulated" under Soviet rule. That example is enough to make me agree with this ruling.

Not happy with it, but can't think of a better solution. Perhaps we just place more importance on different aspects of the situation and will just have to agree to disagree.


Mike L

2:56 PM  
Blogger crystal said...

This comment has been removed by the author.

10:31 PM  
Blogger crystal said...

don't know a lot about narcolepsy, whether it's completely fixed with medication or not, but I'm sure there are teachers in public schools with narcolepsy, not to mention epilepsy, which is similar. I think the need for those people to be able to have jobs is more important than the need to eliminate every possible chance of a problem. Such a thing isn't really possible even with people who have no disability at all - anyone can faint, for instance.

I guess you're right and there are no easy answers, but that decision seems just mean-spirited.

10:56 PM  
Anonymous Henry said...

I had planned to participate in the conversation sooner but food poisoning derailed me (yuk!) I don’t know if either of you have ever had it but it is really really painful!

A little background first.

As both of you know, as a diabetic I am protected by the Americans with Disabilities Act and because of that I work closely with the American Diabetes Association to understand my rights under the law and ways to make sure that they are not violated. So, from my point of view, the law is a good law but like any law, it’s not perfect and it has loopholes. For example, my employer is bound by law to provide accommodations for me but only if they will cause them hardship. Now, what an employer defines as a “hardship” is going to vary and here’s where I see room for abuse and/or manipulation.

Additionally, I sign a document every year that states that I will abide by the company’s “code of conduct” and the policies outlined in the “employee handbook”.

One thing that struck me about the case is that it seems that the plaintiff, in some ways, breached her contract because they had an internal policy, that she apparently agreed with, that stated that disputes had to be addressed internally first as per their interpretation of Scripture. Like Mike, (Hi Mike!) I don’t necessarily agree with their interpretation but the woman apparently did and so she entered into a contract.

The disturbing part was that the “government” was arguing that they had the right to define what a “ministerial” function is and the Constitution clearly doesn’t allow the government to interfere with the Church and vice versa. You and Mike have discussed this well and so I don’t have much to add.

What surprises me most about your position Crystal is that you seem to believe that the government can interfere with the Church (can tell it what to believe, etc.) and yet you are scrupulous about making sure that the Church cannot tell the government what to do. Well, shouldn’t the phrase “what’s good for the goose also good for the gander” (I know that the context for the phrase is different!) apply here? Otherwise you seem to be, IMHO, discriminating against the convictions of a group of people, something you seem to be adamantly against.

1:32 PM  
Blogger crystal said...

Hi Henry,

I hope you're feeling better!

I didn't realize that diabetics were coveted under the Disabilities Act. I would have been too, with my eye disease, but I didn't tell my employers about my problem and tried instead to pass as normally sighted.

In that particular case, the lady with narcolepsy did violate the rule about going outside the church to sue, but she only did that *after* they wrongfully (imo) fired her because of her disability ... I mean, she wasn't fired for suing them, she was fired for having narcolepsy.

No, I don't think that the government can tell churches what to "believe", and they don't do that. I do think the government can tell churches what to "do" in some circumstances, though. They already do this ... like outlawing Mormon polugamy.

Intersting point, though -- it's true that while I think the government should be able to tell churches what to do sometimes, I don't go the other way ... I do think it's ok for the church to say what it thinks the government should do, but I don't think the church should have the power to *make* the government do something.

Maybe the reason why I feel this way is that the church can say something about the government - like that abortion shouldn't be legal - and what the church says can influence their members and also non-members, who then can vote to make abortion illegal.

But the reverse isn't true. The government might say that it wishes the church would not discriminate against women and allow them to be priests. But that wish, even if agreed to by virtually all the members and non-members of the church, will have no impact on the church's decisions. The church is a despot that doesn't respond to opinon, like the government, so maybe it's better that the state can impose some rules on the church, even though the reverse isn't the true. Does that make any sense at all?

6:08 PM  
Anonymous Henry said...

Crystal, as I am sure you realized, I had a typo in one of my sentences; it should read: For example, my employer is bound by law to provide accommodations for me but only if they will [not] cause them hardship. …

For my own information, I looked up narcolepsy at this site ( and here’s what it says:

Narcolepsy is a chronic neurological disorder, affecting the part of the brain that regulates when you sleep and when you’re awake. This can cause you to experience excessive daytime sleepiness and sudden loss of muscle control, often triggered by strong emotions. As a result, you may fall asleep while working, cooking, or even driving.

I never told you but I was an elementary school teacher in a Catholic school years ago – I taught 4th grade. Of course, I quickly realized that it was the wrong fit but aside from that I realized that my disability made it difficult if not impossible for me to be an elementary school teacher. I am saying this because even with the most scrupulous care of my diabetes, symptoms did flare up and I could see that they caused a hardship for my employer. So, I told them I would not renew my contract and left that field of work. So considering the stress required managing a class and the vigilance required to make sure the children are safe, I thought that the most reasonable thing to do was to face that fact that my disability made it difficult to be a fourth grade teacher – and keep in mind that I manage my diabetes reasonably well.

continued below...

9:08 AM  
Anonymous Henry said...

You wrote: “In that particular case, the lady with narcolepsy did violate the rule about going outside the church to sue, but she only did that *after* they wrongfully (imho) fired her because of her disability ... I mean, she wasn’t fired for suing them, she was fired for having narcolepsy.” I don’t know if it was wrongful because I don’t know the particulars of her diagnosis or the term of her employment. I suspect that neither side is completely right because I am certain that corruption, narrow-mindedness, a desire to retaliate, a desire to be right, etc., are found in one form or another in every organization and institution populated by people — and probably animals too! ; )

No, I don’t think that the government can tell churches what to “believe”, and they don’t do that. I do think the government can tell churches what to “do” in some circumstances, though. They already do this ... like outlawing Mormon polygamy.

The irony of this particular case is that a government agency was telling a church what to believe – that the lady was not a “minister” because the percentage of her time doing “ministerial duties” was less, in their opinion, than the “secular duties”. But the Constitution does not allow the government to interfere with the internal governance of a church. You raise a good point about Mormon polygamy, my question to you is, do you know why this was done? Also, if marriage continues to be redefined to mean a union of consenting adults that simply love each other I don’t see any legal reason to make polygamy illegal – do you?

continued below...

9:09 AM  
Anonymous Henry said...

If “doing” could be separated from “believing” I would agree with you but since that can’t be done in human beings, then I obviously disagree. For example, if I believe that cigarettes are not detrimental to my health, I will most probably smoke; if not, I won’t. So, it seems to me that “what I believe” precedes and influences “what I do.”

Well, those who wrote the Constitution felt that neither side should interfere with the other; and that is good. So I agree with you that “the church should have the power to *make* the government do something.”

The rest of my remarks will flow out of the section on Politics in the Compendium of the Social Doctrine of the Church, particularly this paragraph: 406. The Encyclical Centesimus Annus contains an explicit and articulate judgment with regard to democracy: “The Church values the democratic system inasmuch as it ensures the participation of citizens in making political choices, guarantees to the governed the possibility both of electing and holding accountable those who govern them, and of replacing them through peaceful means when appropriate. Thus she cannot encourage the formation of narrow ruling groups which usurp the power of the State for individual interests or for ideological ends. Authentic democracy is possible only in a State ruled by law, and on the basis of a correct conception of the human person. It requires that the necessary conditions be present for the advancement both of the individual through education and formation in true ideals, and of the ‘subjectivity’ of society through the creation of structures of participation and shared responsibility”.

Let’s think of the Church in America as a group of citizens who share the same values and beliefs, particularly about this thing we call the “human person.” Well, this group believes that abortion is the intentional killing of an innocent human life. Shouldn’t this group have the right to do all they can to overturn what they consider to be an unjust law? There are groups in our society that are trying to redefine marriage – as is their right in our political system – and there are others fighting this redefinition - as is their right in our political system. What’s wrong with that?

Your last paragraph raises a very common objection – the Catholic Church is not a democracy – and that’s true. You, of course, presume that the fact that the Church does not allow women to be priests is “discrimination” (an argument I am not interested in engaging in with you because we are not going to agree!) rather than a complete distortion of what “priesthood is” according to the Tradition of the Church. But, as this case demonstrates, in America the government has no right to force the Church to adopt it’s values, ideology, etc., especially when it violates it’s “conscience.”

continued below

9:10 AM  
Anonymous Henry said...

I am fascinated by your choice of the word “despot” because of its etymological history which, according to the Oxford English Dictionary is;

A word which, in its Greek form, meant ‘master’ or ‘lord’ (e.g. of a household, of slaves), and was applied to a deity, and to the absolute ruler of a non-free people; in Byzantine times it was used of the Emperor, and, as representing Latin magister, in various official titles, also as a form of address (= domine n. my lord) to the emperor, to bishops, and especially to patriarchs; from the time of Alexius Comnenus it was the formal title of princes of the imperial house; in the sense ‘lord’ or ‘prince’, it was borne, after the Turkish conquest, by the petty Christian rulers of dependent or tributary provinces, as the despots of the Morea or of Serbia (= Serbian hospodar). It was in this later application that the word was first known in the Western languages. (In modern Greek, δεσπότης is the ordinary appellation of a bishop.)

So, since I have no problem with the fact the Jesus is Lord, why should His bride, the Church be Lord too? Of course one must look at how the Church defines the word Lord.

Peace my friend. And yes, I am better but eating very light meals.

P.S., as you well know, I have a "love/hate" relationship with blogs, email, etc., because they seem to steal my time from other activites, but I do enjoy interacting with you Crystal.

9:11 AM  
Anonymous Henry said...

Ahh.. another typo:

So I agree with you that “the church should [not] have the power to *make* the government do something.”

9:35 AM  
Blogger crystal said...


I did know what you meant when you said that you employers had to accomodate you but not if it posed a hardship to them. And I know that the diabled person must be able to perform the job tasks.

Narcolepsy is like epilepsy in that people can have episodes at any time, even when they're driving. But medication does mostly take care of the problem, which is whu epileptics can usually drive. I think th same is true of narcolepsy.

About polygamy - it was against the law mostly when the Mormons started pracing it, but it continued for about 40 years until the Morrill Act was passed, and when the Momons still resisted, there was a supreme court case - Reynolds v. United States - and the court opinion was sort of what I wrote, that the government could't tell religions what to believe, but could tell them what (not) to do ... "Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order". They said that relions cannot do whatever they want and gave the example of human sacrifice.

My idea of marriage is not that it can be anything as long as people love each other. It is that people should love each other, yes, but also be of age, able to made an imformed choice, and also that it be between two people only - I can't really believe that someone can really be in a loving and intimate relationship with more than one person at a time.

Any group glad that they live under despotism deserves it, I guess ;)

Hope you feel better soon.

1:02 PM  
Anonymous Henry said...

LOL - well, we are all slaves to “something” aren't we Crystal. The question is, which “master” will make us free? And, of course, we both "choose" as adults to freely enter into this "tyrannical" society that you constantly fight against. Well, at least I did since I studied about it for three years before “joining.” ; )

Thanks for the information on the case, I will look it up.

Well, we are talking about the law and that's why definitions in the law matter. From what I’ve been reading, there may not be any legal reason why "marriage" has to be limited to just two consenting adults. I am not talking about morality, etc., I am talking about how the law works and is interpreted.

Pax and thanks.

1:23 PM  
Blogger Deacon Denny said...

A very nice exchange. I enjoyed reading it. Thank you, Mike, Henry, Crystal.

8:47 PM  
Blogger crystal said...


10:55 PM  
Blogger jakob said...

We like your kitten avatar

12:42 AM  
Blogger crystal said...

Thanks. I think it originally came from Of Course I Could Be Wrong ...

1:45 PM  

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