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.

7 responses to “So When Will Religious Organizations Choose Not to Discriminate?”

  1. Joe Paulson says:

    This is why I found the professor’s column on the Trinity Lutheran case a bit one sided.

    The majority promoted a facially sound approach of neutrality but as the dissent noted, religion is not treated like that. They get certain broad exemptions. Thus, it makes some sense that states have a strong separation approach regarding funding of religious institutions. Her column was curiously one-sided there.

  2. NoNoise says:

    I was maliciously prosecuted by Divine Saviour Catholic church members, 90065 and the Los Angeles City Attorney for a crime I did not commit. Churchmembers lied. A jury found me not guilty. Where were my liberal government democrats? Mayor Garcetti, City Attorney Mike Feurer, Council district, LAPD? No where to be found. Democrats are suppose to stand together. Not go after a woman for a witch hunt. And, why did LAPD go on a witch hunt against me? Because I stand on the sidewalk with a sign protesting their amplified sound system all by myself. Just me and my sign. Church members took me to court twice and lost twice. Shame on the bullies. Bullies lost. Liars lost. Where were the democrats? No where to be found. What happened to first amendment? Free speech is not free. Catholic church does everything in their power to get their way. It does not matter if they do it by making up lies or pushing their agenda. Where is the justice ?

  3. Scrivenor says:

    The seriously disturbing part of this decision is the total lack of the Catholic Church to step in and punish the priest for serious misconduct. As a former catholic seminarian and now lawyer, the Church in it teachings would hold the priest responsible for comments that far exceed what are considered “pastoral.” Alleging adultery is squarely at odds with church teaching which counsels private conversation, not public exposure. However the obverse is obvious that the church will “out” a woman principal but not a priest pedophile. How utterly shameful for the Bishop in this case. The Bishop should have stepped in an put a stop to this whole situation. If the Church wants an exemption, it owes morally, ethically, and legally (canon law) compliance with its own teachings which would hold the priest responsible and would have reinstated the woman. But then “the good old boys” network prevented that just as the Church as a whole and the Roman Curia have avoided the issue of priests who “do bad things.”

    A call to orders (the priesthood) is not a grant of immunity from poor decisions, a right to abuse or discriminate, or morally reprehensible conduct. Rather if the call means anything, it is an admonition to follow Christ’s teachings on forgiveness and “who will be the first to pick up a stone.”

  4. Mike Diederich Jr. says:

    I am Ms. Fratello’s counsel. I will ask the Second Circuit to review the case en banc. However, it rarely gives such review.
    Ms. Fratello excelled in the parochial school as a teacher and then as a principal. She was hired as a “lay principal” and performed administrative and educational duties. Her background is in education. No Catholic Church authority viewed her has a pastoral minister. Canon law distinguishes the ministry from the laity. My canon law expert, a nun, verified this.
    Yet the Court did held her to be a minister for civil law purposes, thereby depriving her of all civil law protection. Good Catholics who take jobs as teachers and principals in parochial schools will now find that they have no employment law protection.
    The big problem will not be Catholic parochial schools (where a sound education, including science and evolution, is taught). The problem will be “schools” run by insular or radical religious groups intent on keeping the sects’ children uneducated or inadequately educated. These children will find difficulty in becoming part of the larger society. Our democracy, which depends on an educated citizenry, will suffer. Children will suffer.
    I served in Iraq and Afghanistan where I saw the harm that “religious tribalism” can do. I fear radical religion of any faith. This decision will promote religious insularity and radicalism. Church and State are best kept separate. This is why I fought for Ms. Fratello. The Courts should not have deferred to organized religion in Ms. Fratello’s case, IMHO. Nothing good will come of courts viewing lay employees as ministers, causing the employees to lose all civil law protection. Mike Diederich, attorney

  5. Max Herr says:

    For the better part of 241 years, both governmental and religious entities have enjoyed and benefitted from the mutually agreed distance between them. Suddenly, in just the last decade or so, this has become singularly unpopular when the religious body is Christian in its beliefs.

    Ms. Hamilton must be intoxicated by the abundance of estrogen in her office. Nowhere else in the non-Muslim dominated world is Christianity under greater attack than here in the United States, where, beginning in the 17th century, Christians from Europe migrated in an effort to get out from under government rule and oppression over their faith. To this end, the drafters of our Consititution chose, intentionally, to distance the rule of government from the exercise of one’s chosen faith. And, as a result, America welcomes and tolerates religious beliefs of all manner and form; but in the modern era, only Christianity is singled out by intolerant socialists like Ms. Hamilton and virtually all of the other commentators here at Justia.

    In the reference to the “Do No Harm Act” and Rep. Kennedy’s ridiculous statement, “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,” where is the right of the Christian church to not have its beliefs infringed on by the LGBTQ-left? It cuts both ways, but one side today refuses to accept that fact. The left have become the standard bearers of intolerance . . . and seek to oppress any point of of view that does not match theirs, particularly if it is “Christian” in their estimation.

    Many within the left among us now take a deliberate approach to oppressing all manner of freedoms other than their own. “My right to freedom of speech,” they insist, “shall not be infringed, but if you want to bring your conservative views to my publicly funded college or university campus, I will stand and prohibit you from speaking that because it is offensive to me.” So rather than encourage dialogue and healthy debate, the “freedom mongers” would condone only monologue — theirs — to the exclusion of all other speech. “I don’t like your conservative/Christian religious beliefs, so I will assert the claim that I am being harmed by them.”

    As a Christian, however, Ms. Hamilton would deny me and like-minded others the same claim that we are being harmed by the LGBTQ agenda. As a business owner, why should I be prohibited from employing someone whose views do not match mine — am I not entitled to promote a workplace where harmony is preferred? As G.N.M. cogently points out, there was nothing said by Ms. Hamilton about Muslims or Islam, or Judaism, or Buddhism, B’hai, Shintoism, Taoism, and any number of other faiths all of which obtain the same protections under the Establishment Clause.

    Only Chrisitianity is under direct attack here. If my church wants to “discriminate” and hire only other Baptists for its staff, who, truly, is harmed? Are your job skills so narrow that you cannot, as a non-Baptist or non-Christian, find employment in any other venue? Why would you choose to work in a place where you would probably feel uncomfortable because the beliefs of all others who work in the same place are contrary to yours? .

    What I’m not going to do here is defend the misogynistic, medieval attitudes of the Catholic church or its behavior in the Fratello matter. As a society, we generally don’t condone those things, and the behaviors complained of would not be tolerated in my Baptist church or in most other Christian-denomination churches either. But I will defend the Catholic church’s right to hire persons of like-minded faith, as I would any Muslim mosque or Jewish synagogue or temple — and I would gladly extend that attitude to every privately operated, non-religious business as well, regardless of the owner’s faith or beliefs. I am not harmed in any way by a Jewish or Muslim congregation that would not hire me as an employee or use my business services because I am a Jewish Christian. It is not my place to enforce my will upon them, or use the government or the courts to force them to hire me.

    In the same manner, the LGBTQ have no “right” to demand that a church, mosque, synagogue or temple open its doors to them for the purpose of conducting a wedding ceremony. If the LGBTQ are so adamant about holding a wedding ceremony in a church, I say, simply, go open your own church. Nothing prohibits you from doing that, and the government will defend your right to do it. But don’t come to my church and attempt to impose your will or beliefs on me.

  6. Thomas Amoroso says:


    Liberals will do these things when the majority of churches AND CHURCHGOERS are not just mouthing the tenets of Christ, but living them daily. If we call Christians ‘haters’, consider that it may be because we see them hating, in their speech, and in their writing, and in their deportment, in decisions great and small that they make daily. If you decide not to provide services to someone merely because they are members of a group you disapprove of, you’re a hater. If you defend those who do this, you’re complicit in hating. If you (as here), rally the full majesty of the law to defend yourself from the consequences of behavior that in any other context would be unacceptable, you’re a hater.

    We will do it when we see the majority of churches and churchgoers recognizing that, while they may disagree with the law, they are bound by it and must obey, or face the consequences of disobedience. There’s a lovely Latin phrase: ‘dura lex, sed lex’. “The law is hard, but it is the law”. I will note you remain free as always to complain about the law, see the next point.

    Finally, where, o where does the first amendment come into play here? Has the right to speak on the part of any church or churchgoer been restrained or restricted *by the government?*. I doubt it. If I don’t want to hear what you have to say, I am free to tell you to stop saying it. If I own the forum, be it an online board or a print publication, I have no obligation to allow you to use it. That isn’t a restriction of your right to speak (you’re free to print or electronically publish your ideas elsewhere); it’s an editorial decision.

    The right thing to do here would have been for the Catholic Church to publically censure the offending member of its hierarchy, apologize to the person offended, with words and if necessary cash – although I think you may find that words would suffice if backed by other actions designed to prevent recurrence. Most people offended against in this way want not to have their hurt addressed – cash heals nothing – but to see and believe that the next person who finds themselves in the same circumstances will have a better experience, will not be hurt in the way they were, and that the organization is doing their best to do the right, as they are given to see the right. No one expects perfection; I believe, though that it is not unreasonable to expect improvement. Call it ‘perfectability’; the idea that when found in the wrong, a person or institution will try not to do that particular class of wrong anymore. I don’t think that’s unreasonable. But clearly we will not be seeing it from the Catholic Church, at least the branch in question here, anytime soon.

  7. evilunderlord says:

    Just as soon as conservatives stop requiring atheists to pray, have religious commentary on their coinage, and in general give religion (Christianity in particular) special rights.