Bench Memos

Is the Pope Catholic?

 

Everyone knows the Pope is Catholic. But is his job? The Department of Justice doesn’t seem to think so.

This week, the Supreme Court will hear oral argument in Hosanna-Tabor Evangelical Lutheran Church v. EEOC, which many have called the most important religious liberty case in decades. The key issue is the scope of the “ministerial exception,” which bars most employment-related lawsuits brought against religious organizations by employees performing religious functions. 

Until recently, nearly everyone—including both sides in Hosanna-Tabor and four decades of lower-court precedent—had assumed that the question was not whether the ministerial exception existed, but how far it reached. In August, however, the DOJ filed a brief attacking the ministerial exception’s very existence. As Ed Whelan has noted, the DOJ’s anti-church stance goes beyond even what Americans United for Separation of Church and State and the ACLU had suggested in their amicus brief.

The DOJ argued that the Court should deny religious organizations any “prophylactic categorical exemption” from discrimination laws. In other words, when churches fire or refuse to hire ministers for “illegal” reasons, such as sex or ethnicity, the churches should be liable. If the Court does create a categorical exemption, the DOJ continued, it should apply only to “those employees who perform exclusively religious functions.” That excludes clergy members whose job includes “secular” functions like overseeing finances or managing staff—in other words, anyone in any church with any real responsibility. Even the pope. (Prof. Mark Rienzi has noted this absurd consequence of the DOJ position.)

The DOJ claims that it isn’t taking aim at millennia-old traditions, such as the all-male Catholic priesthood, that are currently protected by the ministerial exception. But that distinction is political, not legal, and it’s unlikely to last for long if the Supreme Court eliminates the ministerial exception.

If the DOJ prevails, courts will need to open on Sundays to hear the flood of lawsuits second-guessing churches’ decisions on ministers. At least one plaintiff has already tried to force the Catholic Church to ordain female priests. A federal district court rejected her suit — but only thanks to the ministerial exception. Otherwise, it’s unclear how the district court would have stopped would-be priestesses from forcing their way into Catholic pulpits.

Similarly, the demise of the ministerial exception would mean that Orthodox Jews would have to start appointing women rabbis. (One can imagine the plaintiff’s argument: It’s a lot easier for a woman rabbi to fulfill the Levitical requirement not to shave one’s beard.) 

Actually, Orthodox Jews could find themselves in an even more ridiculous bind. Jews naturally want Jewish rabbis. Other than converts, Orthodox Jews only consider someone Jewish if his mother was a recognized Jew. That’s precisely the kind of ethnic discrimination that the ministerial exception protects — and that the DOJ’s brief seeks to eliminate. If the DOJ’s argument prevails, Orthodox synagogues could be sued for refusing to hire a rabbi who considers himself Jewish, but who isn’t Jewish in the eyes of his congregation. This isn’t merely hypothetical: In 2009, a British court ruled that a Jewish school racially discriminated against an applicant when it denied him admission because his mother was not Jewish.

Carrie Severino is chief counsel and policy director to the Judicial Crisis Network.

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