A Catholic Archdiocese’s Devious Plan To Immunize Itself From Anti-Discrimination Law

By Ian Millhiser
Think Progress
June 9, 2014

http://thinkprogress.org/justice/2014/06/09/3445057/a-catholic-archdioceses-devious-plan-to-immunize-itself-from-anti-discrimination-law/

Last March, the Catholic Archdiocese of Cincinnati, Ohio revealed a new contract imposing sweeping limits on the speech and conduct of the schoolteachers it employs. Among other things, the contract forbids teachers from engaging in “improper use of social media/communication, public support of or publicly living together outside of marriage; public support of or sexual activity out of wedlock; public support of/or homosexual lifestyle; public support of/or use of abortion; public support of/or use of a surrogate mother; [and] public support or use of in vitro fertilization or artificial insemination.”

At least some of these restrictions are likely violations of various laws prohibiting discrimination. The ban on “use of in vitro fertilization or artificial insemination,” for example, violates the Pregnancy Discrimination Act according to at least one federal appeals court. Similarly, while Cincinnati’s ban on anti-gay discrimination exempts “any religious corporation, organization, or association,” should a state or federal law be enacted which does not contain this broad exemption, the contract’s ban on a “homosexual lifestyle” would also violate the law.

Which probably explains why, as CNN recently reported, the contract also contains a clause adding “the title ‘ministers’ to all teachers — from geography to gym class.” In a 2012 called Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, the Supreme Court held that the Constitution “bar[s] the government from interfering with the decision of a religious group to fire one of its ministers.” Thus, the school in that case was able to fire one of its teachers, despite the fact that this firing allegedly violated the Americans with Disabilities Act, because the teacher was also a formally commissioned “Minister of Religion.”

What makes Hosanna-Tabor different from what the Catholic Archdiocese is trying to do, however, is that the defendant in Hosanna-Tabor took pretty significant steps to distinguish teachers who were also classified as ministers (what the school referred to as “called” teachers) from ordinary lay teachers. Called teachers in the Hosanna-Tabor case “had to complete eight college-level courses in subjects including biblical interpretation, church doctrine, and the ministry of the Lutheran teacher” and they “had to obtain the endorsement of her local Synod district.” They were required to “pass an oral examination by a faculty committee at a Lutheran college,” and even then they had to be elected a minister by a vote of the church’s congregation.

The teachers in Hosanna-Tabor also had significant religious duties. They were “tasked with performing th[eir] office ‘according to the Word of God and the confessional standards of the Evangelical Lutheran Church as drawn from the Sacred Scriptures.’” They taught religion classes and led their students in prayer, and they were occasionally called upon to lead a chapel service where they would deliver “a short message based on verses from the Bible.”

The Cincinnati Archdiocese, by contrast, is simply declaring as a blanket rule that all of their teachers are “ministers,” regardless of their training or their duties — and regardless of the fact that the church was happy to view these teachers as lay people until a couple of years after the Supreme Court said that the church could gain legal immunity if they were reclassified as “ministers.”

The Court in Hosanna-Tabor said that it was reluctant to “adopt a rigid formula for deciding when an employee qualifies as a minister,” and it reserved for another day how it would handle more difficult cases where the purported “minister” had far less religious training and duties than the minister in that case. But it is not hard to figure out what the endgame will be if the Court does not police this line carefully. If gym teachers with few, if any, religious duties and no religious training can be reclassified as “ministers,” then why not janitors? What’s to prevent religious employers — including, potentially, major employers such as hospitals and universities — from handing every single one of its employees a “certificate of ordination,” and, with it, buying the right to discriminate on the basis of race, gender or sexual orientation?