So When Will Religious Organizations Choose Not to Discriminate?


When Friedrich Nietzsche declared that “God is dead,” of course he did not mean it literally. Rather, he meant men following their will to power had essentially sidelined God and abandoned decency. I am increasingly persuaded that Nietzsche was presaging our era.

The U.S. Court of Appeals for the Second Circuit recently released Fratello v. Archdiocese of New York (2d Cir. July 14, 2017), which held that a female principal of a Catholic school has no legal recourse when a priest engages in ugly, sexist behavior toward her that would be actionable in any other scenario. It is a classic case of gender discrimination and retaliation, although you would never know it from the lengthy opinion that never articulates her claims but rather treats them as just some generic complaints from a woman. According to the complaint, her supervisor, Fr. Joseph Deponai, told her that she should not have coffee alone in her office with the male facilities manager, because it would create “scandal,” and he falsely accused her of adultery. She alleges that his inappropriate, sex-based comments led her not to meet with male colleagues in her office and that she was let go when she complained about Deponai.

Why did Fratello receive no shelter from the federal or state civil rights laws? Because of the “ministerial exception” under the First Amendment, which was cemented by the U.S. Supreme Court in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. That doctrine, as developed by the Court, holds that “ministers” of religious organizations cannot sue their employers under the discrimination law. In Hosanna-Tabor, it was the Americans with Disabilities Act the religious entity circumvented; in this case it is Title VII.

It would have been one thing for the Court to say that a religious organization is shielded from the civil rights laws when it follows its beliefs. For example, and this came up more than once during Hosanna-Tabor’s oral argument, the Catholic Church believes that only men can be priests. In that circumstance, the First Amendment argument makes sense—no women need apply or go to court. Unfortunately, the Court and now the Second Circuit with its curiously long opinion short on facts and long on law office history crafted a wooden rule that says that if the employee can be classified as a “minister” then the organization is simply immune—whether its behavior was religiously motivated or not.

Thus, in the Fratello case, the better approach would have been to ask whether the gender discrimination was required by the religion. Obviously, there is no Catholic belief that requires a supervisor to lie about an employee’s sexual behavior to others or that requires women to avoid talking to male compatriots. In other words, this is a case where she should have been able to sue, and the religious organization should have been legally rebuked for its behavior. Instead, the case basically tells religious organizations to discriminate away without consequence.

The pro-religion tone of the opinion combined with the trivialization of Fratello’s claims is troubling and actually surprising coming from the Second Circuit. This was the circuit after all that took a principled stand against the demands of some religious entities to turn public school buildings into churches on the weekends in Bronx Household of Faith v. Board of Education and read Title VII’s gender discrimination prohibitions to encompass sexual orientation in Christiansen v . Omnicom Group. But even more surprising is how the opinion goes out of its way to sideline the Establishment Clause and the separation of church and state. In a footnote it defines the “separation of church and state” by quoting a law professor in a 2003 law review article saying it’s “shorthand for vague notions of religious liberty” in the First Amendment. Apparently, the Second Circuit’s library lacks any of the Supreme Court’s Establishment Clause cases that would show that it is a lot more than the weak stepsister to the Free Exercise Clause. This reminds me of the times when Chief Justice Rehnquist would take down a litigant who had no case and just a treatise to support an argument. He made it very clear that Supreme Court cases were the precedents that mattered, not treatises or law professors. But this is no litigant. It is the Second Circuit, which should have said nothing at all before brazenly ignoring decades of precedent.

It is my view that religious organizations led by humans often err, and that they need to be reminded once in a while of the requirement of decency and integrity just like the rest of the humans in society. This case is an excellent example as was the race discrimination case in Rweyemamu v. Cote and the disability case in Hosanna-Tabor. When the behavior is not required by faith, it is likely just bad behavior that the church would do well to curb. Human nature being what it is, churches would actually do better in the long run with more legal strictures in this arena rather than fewer, and those advocates pressing for ever greater immunity for the religious are doing them no favors. The image of the Catholic Church in this case and in Petruska v. Gannon University as aggressively sexist, and in Rweyemamu as racist, and the impression of the Evangelical Lutheran Church in Hosanna-Tabor as callous toward a woman with a disability, are not going to slow down the trend toward an ever-growing number of “Nones” or lead to an increase of those with a strong religious affiliation.

The bottom line is that in a case like Fratello the ministerial exception stands for the proposition that a religious organization can’t be sued for discrimination. But that is a far cry from a requirement that the organization discriminate, or that if it has someone engaging in what would otherwise be illegal behavior, it must litigate. Having spoken to many of the litigants in these cases, the no-holds-barred litigation stance throws salt on the festering wound of being treated worse by their own religious organization than they might have been if they had worked for a secular corporation. The discrimination is felt as a betrayal of the goodness of the organization; the aggressive legal defense is just ugly.

While it is not difficult to come up with some tendentious explanation for first treating these employees badly and then litigating it to the hilt—and no doubt their lawyers and amici have cornered that market—doesn’t a rational person have to ask why did these religious organizations find it in their interest to publicize their socially and morally unpalatable behavior? I mean, really: where is the upside in a religious organization protecting a chauvinist by firing a female employee or using race to hire and fire? You really don’t need the scandal of clergy sex abuse to understand why Americans are fleeing organized religion. If religious organizations could for one moment in this era quit listening to lawyers and start considering simple decency we might all benefit.

Immunity from Civil Rights Laws Is Just the Beginning of the Push to Discriminate by Religious Advocates in This Era

It would be a mistake, however, to view these ministerial exception cases in a vacuum. They are part of a larger, more troubling social pattern of religious entities demanding a right to discriminate and harm others, as I discuss here. The Religious Freedom Restoration Act, of course, was put in motion to shield believers from the laws that apply to everyone else, and has been deployed to trivialize women’s rights against gender and religious discrimination in their benefit packages in Burwell v. Hobby Lobby and to pave the way to discrimination against a transgender employee in EEOC v. R.G. & G.R. Harris Funeral Homes, Sean F. Cox Inc., just to name two examples. Yet, even RFRA has not been enough for the religious lobbyists, who have further demanded the inaptly named First Amendment Defense Act (FADA). The very title of this bill tells you that religious lobbyists are overreaching: it implies that its provisions carry out the requirements of the First Amendment when in fact it does no such thing. It’s sui generis. The First Amendment didn’t require RFRA, either. It’s just a statute.

Some members of Congress now see that RFRA was a step too far. Reps. Bobby Scott (D-Va.) and Joseph Kennedy (D-Mass.) accordingly have introduced the “Do No Harm Act” again this year. In his release, Kennedy correctly stated the basic common sense principle that, “Inherent in our nation’s right to religious freedom is a promise that my belief cannot be used to infringe on yours or do you harm.” The bill would protect people, and especially those who are not part of the faith, from discrimination in employment and in healthcare. It also shields the most vulnerable: children from the use of RFRA in cases involving child labor, abuse, or exploitation. Why anyone—religious to atheist—would permit RFRA to continue to apply to children in the first place is beyond me, but there it is.

This bill is the counterpart to the earlier RFRA “enhancement” bill entitled the First Amendment Defense Act that explicitly would have permitted discrimination against LGBTQ in employment and other arenas. FADA appears to have no momentum; unfortunately, the Do No Harm Act in this Administration suffers the same fate. But that does not mean the Trump Administration is not plotting to make sure that religious believers have the latitude they need to harm others.

Recently in a closed door session, Attorney General Jeff Sessions reportedly promised the Alliance Defending Freedom new regulations implementing RFRA across the federal government and even implicitly some help with their cases aimed at reining in LGBTQ rights and pushing LGBTQ out of the way of conservative Christian believers. One can only imagine what fresh harm to others is being concocted right now. What we do know for certain is that unlike the ministerial exception, it is not constitutionally required and those who are harmed should stand up, speak out, and invoke the laws on their side against RFRA. They should also demand an end to RFRA, not just its scaling back. After all, in the end, it’s nothing more than a poorly thought-out statute with an abnormally high number of unknown and negative consequences.

The Court’s current ministerial exception doctrine is another matter, because it is grounded in an interpretation of the First Amendment. It cannot be altered by a simple majority vote in Congress. Its negative effects, however, could be ameliorated by religious organizations who stay true to their beliefs, but who refuse to harbor and encourage what the rest of the culture can see quite clearly is discriminatory, hurtful behavior. The phrase primum non nocere—first do no harm—comes to mind.