Catholics have continued to grapple with the implications of the U.S. Supreme Court’s ruling in the combined cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel last month. The ruling essentially eliminated non-discrimination protections for employees at religious institutions based on a wide reading of the ministerial exception. Today’s post features highlights from recent analyses with links provided for further reading.
National Catholic Reporter columnist Jamie Manson asked in her latest essay about who would even want to work for church institutions after the Supreme Court’s ruling. Manson writes that the bishops’ advocacy means the church “has sacrificed the rights of workers on the altar of extreme religious liberty claims.” With a particular focus on the next generation of church workers in preparation for ministry, she points out the wide swath of discrimination that is now legally protected: sexism, racism, ageism, ableism, and homophobia. Manson continues:
“Ministry is already high risk enough for church workers who have to make themselves both emotionally and physically vulnerable in pastoral care programs, homeless ministries, domestic violence shelters, hospitals and hospices, prisons and halfway houses. But now when they accept a church job, they also have to accept that they can be fired at will for any reason without any legal recourse. Religious leaders constantly lament that young people aren’t interested in the church, but this court ruling hardly makes ministry any more attractive or hospitable.
“All of this leads me to wonder, who on earth is going to want to work in any religiously-affiliated institution, let alone a parish, under these conditions? As I see it, working in a religious institution now means living in fear for your job at all times and knowing that no one will protect you if you are treated unjustly in the workplace. Is this what a church that claims to be founded on the Gospel values of compassion and justice looks like?”
In her conclusion, Manson also alludes to the church’s ban on accepting women and gay men to the priesthood, writing:
“And in addition to abandoning protections for countless employees, there is also this irony. The Catholic Church refuses to admit most people to ordained ministry, and yet, they are now willing to see almost anyone as a “minister” — if they need to fire them.”
Speaking to America, law professor and theologian Cathleen Kaveny acknowledged the issue of church employment is complicated, noting that it is problematic for civil courts becoming too involved in religious institutions’ internal functioning. Still, Kaveny believes LGBTQ church workers deserve protections:
“Determining what counts as ‘unjust’ discrimination could be complicated, she conceded, but it is a conversation that has to take place. Then, employers should be explicit about their expectations in employee handbooks but should also offer protections for employees to make their case to church authorities.
“‘I’m really not in favor of seeing law as an “all or nothing” matter, either you’ve got federal law protecting you or you’re a sitting duck,’ Ms. Kaveny said. ‘There are other ways of coming up with protections that don’t threaten the church’s freedom to articulate it’s religious mission and those are protections the Catholic community internal unto itself needs to work on developing.'”
Michael Sean Winters of the National Catholic Reporter, supported the Court’s ruling, but nonetheless agreed that there must be means within the church to protect church workers because civil law’s ministerial exception “does not absolve the church from the need, in justice, to provide recourse to employees who believe they have been unjustly treated.”
Winters calls for a “canonical recourse” in employment, and details interestingly that such recourse almost happened when the Code of Canon Law was being revised after Vatican II. The details are somewhat complex (you can read them here), but essentially church leaders, drawing from an increased emphasis on not only human but ecclesial rights, had considered canons that would have given certain rights, like the write to a hearing and to counsel, to people impacted by administrative decisions in the church. Winters concludes:
“It is easy to see how the church would benefit from these kinds of procedures. It is manifestly unfair that, at present, a person who feels he or she has been wrongly terminated only has recourse to a pastor, a bishop or other religious superior who will likely have to overrule someone they collaborate with far more closely than the person who was terminated in order to reach a more just result. . .
“If the church presents itself as the champion of some anti-contraception and anti-LGBT crusade, it is not the fact that this places us out of sync with the 21st-century church that bothers me. It is that we are out of sync with the first-century church — and that the reason for the difference has more to do with politics than with doctrine.”
Jesuit Fr. Nathaniel Romano, a law lecturer and pastoral minister, writes in America in a way that defended the ministerial exception in civil law, but insisting the Supreme Court’s ruling is not the end because the church must act justly now. He comments, “If bishops and religious superiors simply rest in the blessed assurances of the Supreme Court that their teachers and other key employees cannot sue them, they are missing a key opportunity.” Romano continues:
“The ministerial exception presents an opportunity for Catholic leaders to demonstrate how religious communities can effectively govern themselves with integrity and justice. Distrust and fear emerge in the public conversation about this issue because of the concern that ‘religious liberty’ is code language for ‘religious impunity.’ Bishops, superiors and administrators of Catholic institutions know that discrimination is wrong; the fact that civil courts cannot remedy such discrimination does not mean no one can. . .
“Resort to civil courts is problematic. This does not mean, though, that Catholics should resign themselves to subpar outcomes or the lack of recourse for apparently unjust decisions. Rather, bishops can use this opportunity for self-government in the ways the First Amendment imagines. Religious liberty exists so that the church can be a responsible member of civil society. So let us be a responsible member of a pluralist and diverse society, demonstrating with integrity and authenticity what it means to be the people of God.”
Romano likewise advocates for measures internal to the church to handle employment disputes:
“Well-regarded arbitrators can manage such tribunals, assisted by appropriate professionals knowledgeable about the institution where a dispute arises—teachers, for example, in a dispute brought at a school. They can be empowered to compel Catholic institutions to provide documents and testimony. Similarly, they can be empowered to offer real remedies when unjust discrmination is found to have occurred—back pay, reinstatement, lost insurance costs, etc. Even if bishops or other superiors reserve to themselves the final decision, a neutral person hearing both sides, receiving relevant evidence and offering an independent conclusion is a crucial element of true justice.”
Such systems are not without precedent in the church, and Romano cites the annulment tribunals as but one example. Romano admits that this is only a first step really in a much larger project of dialogue and discernment about the issues involved in the employment disputes.
But Matt Tedeschi, who was terminated from the Catholic high school where he taught because he is gay, rejects the idea that the institutional church would or could develop measures to adjudicate these employment matters internally. He calls for the more than 150,000 educators in U.S. Catholic schools to seek justice by other means, writing in the National Catholic Reporter that union action and fair contracts are what is needed:
“But union activity would have to go further than the San Francisco Catholic teachers did. Instead of simply remaining silent on ministerial status, employment contracts must stipulate that teachers are not considered ministers by the employer, nor do they function as such. Including that language seems to be the only way that Catholic school employees will be covered by the same employment protections extended to every other worker in the U.S.
“Even if employers signed such an agreement, they might attempt to argue it was void once they were sued, claiming the ‘ministerial exception’ gives them a constitutional right to discriminate. But parties are able to ‘contract away’ certain rights. Employers have used coerced arbitration clauses to contract around their employees’ constitutional right to a trial by jury for years.
“Employers might also claim the ‘ministerial exception’ could not be waived. Courts have disagreed over this issue, but Hosanna Tabor‘s characterization of the exception as an ‘affirmative defense’ to litigation indicates that an employer should be able to waive it voluntarily.”
If church leaders continue to discriminate and seek to stymie LGBTQ rights, there are costs. An editorial in America addresses the problem of the Supreme Court trying to resolve some of the U.S.’s most contested issues rather than having elected officials trying to resolve them. The editorial notes the costs that the Court’s ruling could have if church leaders continue to abuse it:
“While the court preserved religious organizations’ legal freedom to define who counts as a ‘minister,’ unjust use of that categorization to fire L.G.B.T. employees or employees who are elderly or sick will only increase hostility to religious liberty claims in the future.”
Likewise, Chris Damian writes in Commonweal about a related employment case, Bostock v. Clayton County, in which the Supreme Court ruled Title VII employment protections include discrimination based on sexual orientation and gender identity. Damian criticizes the bishops for trading good theology in place of their anti-LGBTQ politicking, and he takes a detailed look at the bishops’ amicus brief in this case before concluding:
“Whatever the long-term fallout from the court’s decision, the immediate consequences of the USCCB’s involvement are already clear: those tasked with the teaching office of the Church cast aside vulnerable gay persons, undermined the coherence of Catholic moral theology, and put forward a counterfeit version of religious liberty. We should ask, along with Russell Kirk, ‘Might not “sharing the fate of the discarded” be preferable to sharing the fate of the victors, in a contest of this description, where the sacrifices seem to exceed the prizes?’ As it turns out, the USCCB can’t even claim the prize of victory that they hoped would justify sacrificing the coherence of the Church’s moral theology—and the integrity of our witness.”
For Bondings 2.0’s full coverage of the U.S. Supreme Court’s rulings on LGBTQ employment rights this term, click here.
—Robert Shine, New Ways Ministry, August 4, 2020