Accommodating Exploitation

The New York Times has a remarkable piece, part of a series on the growing accommodation of religion by government, detailing how, over the years, religious institutions have been exempted from government regulation in more and more areas, leaving their employees without even the most basic labor protections.

One of the examples they give is a middle-aged novice nun who was dismissed from her order when she developed breast cancer.

If Ms. Rosati had worked for a business or almost any secular employer, she might have prevailed under the protections of the Americans With Disabilities Act. Instead, her complaint was dismissed in December 2002 by Judge James G. Carr of the United States District Court for the Northern District of Ohio, who decided that the order’s decision to dismiss her “was an ecclesiastical decision” that was “beyond the reach of the court” because “the First Amendment requires churches to be free from government interference in matters of church governance and administration.”

Now, you may be asking yourself, how exactly is the decision to dismiss a dedicated novice for no other reason than that she has cancer, any kind of “ecclesiastical decision,” given that one of the basic tenets of the religion in question is caring for the sick?

Legislators and regulators are not the only people in government who have drafted special rules for religious organizations. Judges, too, have carved out or preserved safe havens that shield religious employers of all faiths from most employee lawsuits, from laws protecting pensions and providing unemployment benefits, and from laws that give employees the right to form unions to negotiate with their employers.

Some of these exemptions are rooted in long traditions, while others have grown from court decisions over the last 15 years. Together, they are expanding the ability of religious organizations — especially religious schools — to manage their affairs with less interference from the government and their own employees.

The most sweeping of these judicial protections, and the one that confronted the novice nun in Toledo, is called the ministerial exception. Judges have been applying this exception, sometimes called the church autonomy doctrine, to religious employment disputes for more than 100 years.

As a rule, state and federal judges will handle any lawsuit that is filed in the right place in an appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith. Citing the protections of the First Amendment, they have ruled with great consistency that congregations cannot fully express their faith and exercise their religious freedom unless they are free to select their own spiritual leaders without any interference from government agencies or second-guessing by the courts.

To do otherwise would be an intolerable government intrusion into employment relationships that courts have called “the lifeblood” of religious life and the bedrock of religious liberty, explained Edward R. McNicholas, co-chairman of the national religious institutions practice in the Washington, D.C., office of Sidley Austin, a law firm with some of the country’s largest religious organizations among its clients.

Judges have routinely invoked the ministerial exception to dismiss lawsuits against religious employers by rabbis, ministers, cantors, nuns and priests — those “whose ministry is a core expression of religious belief for that congregation,” as Mr. McNicholas put it.

But judges also have applied the exception to dismiss cases filed by the press secretary at a Roman Catholic church, a writer for The Christian Science Monitor, administrators at religious colleges, the disgruntled beneficiaries of a Lutheran pension fund, the overseer of the kosher kitchen at a Jewish nursing home and a co-founder of Focus on the Family, run by the conservative religious leader James C. Dobson. Court files show that some of these people were surprised to learn that their work had been considered a “core expression of religious belief” by their employer.

Doesn’t that give you chills? Regardless of how peripheral your role is to the actual substantive religious practice of a church (and The Christian Science Monitor is a church now?), you will be considered part of its religious mission and, therefore, you will have no recourse.

Religious institutions have long been exempt from religious-discrimination laws, allowing them to preferentially hire members of their own religion. And that makes a great deal of sense. However, courts are also reluctant to hold them to rules against discrimination of other kinds, such as gender-based discrimination, discrimination on the basis of sexual orientation, marital status, age, disability, pregnancy or adultery (and the Catholic church considers divorced people who remarry adulterous) because those behaviors or statuses may violate tenets of the religion. And if you change your faith after you’re hired? Two courts say that they won’t stand in the way when you’re fired, even if you work in a nursing home.

And, as we see from the example of the Christian Science Monitor, even religious media that’s not part of any church or institution are allowed to get away with discriminatory or exploitive practices. A federal court recently ruled that religious broadcasters are exempt from some of the FCC’s fair-hiring requirements across the board — so not just for people providing the content, but people answering the phones and sweeping the floors. Religious institutions, particularly schools, have also won long battles putting huge obstacles in the path of employee unionization.

And if you think that the threat of being fired is bad enough, think again. You could be screwed after a lifetime of service:

Employees at religious institutions face other risks as well, thanks to pension law exemptions granted by Congress and upheld by the courts. Religious employers are exempt from Erisa, the federal pension law that establishes disclosure requirements and conflict-of-interest restrictions for employee pension plans. That exemption has given rise to several cases in which workers at religious hospitals found that their pensions had vanished because of practices that would not have been allowed under Erisa’s rules.

A related exemption frees religious employers from participating in the Pension Benefit Guaranty Corporation, the government-run insurance program that provides a safety net for corporate pension plans. And some significant court decisions in labor disputes in the last several years have made it easier for religious schools and colleges to resist collective bargaining efforts.

Interestingly, while courts won’t touch gender-bias suits involving religious institutions, they are much less reluctant to get involved in suits involving sexual harassment or abuse. But there’s a rather twisted tale involving the lawsuit by a Pennsylvania novice nun, Lynette Petruska, who sued the Catholic college that had dismissed her as chaplain because of her sex (and, brass balls that they had, they *told* her they were firing her because she was a woman) and in retaliation for exposing and refusing to cover up the sexual misconduct of a senior university official. As expected, the lower court dismissed the case under the ministerial exception. But then it got interesting:

Then, last May, in a decision that caused considerable comment in legal circles around the country, a federal appeals court panel reversed the trial judge’s decision.

For four weeks, the prevailing law in Pennsylvania, New Jersey, Delaware and the Virgin Islands — the jurisdiction of the United States Court of Appeals for the Third Circuit — was that “employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion.”

Appellate Judge Edward R. Becker wrote that opinion; his colleague on the three-judge panel, Judge D. Brooks Smith, filed a stinging dissent. A few days later, Judge Becker died. On June 20, in a rare move, the Third Circuit granted Gannon’s routine request to have the case reconsidered and named Judge Smith to the new three-judge panel that would do so.

On Sept. 6, the new panel swept the earlier decision away, unequivocally restoring the protections for religious employers that it had put in doubt. As Judge Smith put it, the ministerial exception “applies to any claim, the resolution of which would limit a religious institution’s right to choose who will perform particular spiritual functions.”

For their part, religious institutions and the lawyers who represent them are pretty cavalier about the effect that the government’s hands-off approach to discrimination and employee exploitation in religion have on the dismissed employees:

Mr. McNicholas, the Sidley Austin lawyer, acknowledged that some “unjust and sinful” treatment has been protected from litigation by the ministerial exception. But he argued that “the openness of the religious process” would remedy those situations, making it possible for a clergy member dismissed by one congregation to find a home in another.

But what if they are sick? “That’s harder — and very troubling,” Mr. McNicholas said. “But if you have a judge deciding it, that’s just too much intervention in the process of deciding the hiring issues” at religious institutions. “There’s no easy answer.”

Milk of human kindness, my ass.

The piece ends with an example of what may be next — the Seventh-Day Adventists, who run the largest Protestant hospital system in the country, want the same kind of exemption from labor laws and barriers to unionization that religious schools won.

If that happens, is it just a matter of time before major corporations start affiliating themselves with religions and declaring that they need to be free of labor laws that conflict with their religious values?

8 comments for “Accommodating Exploitation

  1. October 9, 2006 at 11:41 am

    Well, and this is an excellent point, wrt the nun: the bad evol secular humanist state would’ve been MORE protective of her, God-fearing woman though she was. i think that ought to be a big talking point: hello, the point of “separation of Church and State” was NOT, was NEVER “muhahaha, we are out to destroy religion;” it was the SEPARATION OF POWERS. HUMAN powers. Powers and principalities?

    and yes, corporation + largescale religious institution + government = fascism = theocracy= RUN FOR THE HILLS, THEY’RE TAKING OVER THE WORLD, PINKY!

  2. Bitter Scribe
    October 9, 2006 at 11:55 am

    I’m waiting for the other shoe to drop: Large corporations will declare themselves to be religions.

  3. zuzu
    October 9, 2006 at 12:32 pm

    Might as well make the Mammon-worship explicit.

  4. Linnaeus
    October 9, 2006 at 12:56 pm

    Arthur Jensen’s speech in Network might turn out to be prescient after all.

  5. October 9, 2006 at 5:55 pm

    Actually, the Christian Science Monitor is owned by the Church of Christ, Scientist, which was founding in 1879 by Mary Baker Eddy. Although it is not required that one be a member of the Christian Science church to work for the paper, it is still an official publication of a recognized church.

    The New York Times article is helpful in some ways, but, by bringing up a few extreme examples, it excites liberal passions in a way that might tend to obscure the damage that setting new precedent could cause vis a vis the separation of church and state in this country.

    I admit that I work for a religious institution. While my denomination ordains women and LGBT people, each church is independent — deciding for themselves whether calling a “non-traditional” pastor is right for the folks who worship there. I believe that this policy must be allowed to continue if we are to truly have the freedom to practice religion in our own ways.

    We don’t ask everyone to agree with us, but we do ask that we be allowed to live out the rights and freedoms promised to us by the Constitution. Unfortunately, this sometimes means that religious institutions appear to “get away with” something that a secular employer would not be allowed.

    I do think it’s important to make sure that if an institution claims to be religious, it can show how its work lives out the faith, doctine, and mission of the ecclesial body to which it is related.

  6. October 9, 2006 at 11:56 pm

    I have always considered the exemption of religious organizations from the ADA as useful to the financial challenges of all the small church (mosque, temple) buildings that don’t meet accessibility standards and may never be able to raise the funds to, for example, install an elevator. The ADA took years to kick in and apply to all public transport and employers of various sizes of businesses, so in that sense exemption of religious orgs seemed to make sense.

  7. zuzu
    October 10, 2006 at 12:03 am

    Well, given that small employers are already exempted from the ADA and some other rules, why is it necessary to construe the rules so broadly so as to cover even the largest churches?

    Meanwhile, it’s not just on employment law that churches get cut a break from regulation; they don’t have to pay taxes, they don’t have to comply with health and safety rules for, i.e., daycares in some states, and they often seek environmental exemptions.

  8. October 10, 2006 at 12:17 am

    I don’t disagree with those points.

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