|Jottings By An Employer's Lawyer
Thursday, May 25, 2006
Ministerial Exemption Covers Organist, But Not Chaplain?
Although the majority professes to adopt a “carefully tailored version of the ministerial exception” to Title VII, Maj. Op. at 3, in fact, by treating ministers like lay employees, it effectively refuses to recognize any ministerial exception, placing this Court at odds with every other federal court of appeals to consider the issue. The majority holds that “where a church discriminates for reasons unrelated to religion, . . . the Constitution does not foreclose Title VII suits.” Maj. Op. at 4. It concludes that because Gannon has not–or at least not yet–articulated a “religious belief, religious doctrine, or internal regulation” as a basis for its decision to restructure, adjudication of Petruska’s claims does not offend the First Amendment. Id. I disagree with the majority’s fundamental premise that a church’s choice regarding who performs particular spiritual functions is not necessarily a religious decision. Rather, in my view, such a decision is, by its very nature, a religious one.In his 60 page opinion, Judge Becker discusses in some detail the three different rationales that other circuits have utilized to justify such an exeption. Those three are:
Although the theoretical view is fascinating, perhaps most telling is Judge Becker's recognition that the implementation of his decision will not necessarily be easy: "We recognize that this process will often require a nuanced analysis of whether a piece of evidence calls religious doctrines into question, but we are confident that the excellent district courts in this Circuit are up to the task."
Ironically, it may well be Judge Becker's last opinion as although authored by him it was not released until five days after his death.
Update: One June 20th, the 3rd Circuit granted rehearing, not en banc, but because of the death of Judge Becker and "circumstances have arisen which require Judge Richard L. Nygaard to recuse," the case will be reheard by the one dissenting judge and two randomly selected judges.
2nd Update: Completing its full reversal from the original opinion, the reconstituted panel held that: