Wednesday, July 22, 2009

Coulee Catholic: Of loopholes and legislating

Wednesday, in a case called Coulee Catholic Schools v. Labor and Industry Review Commission, the Wisconsin Supreme Court held that the "ministerial exception" to state laws prohibiting employment discrimination applied to a teacher in a Catholic grade school. As a result, the teacher's claim against the school for age discrimination must be dismissed.

There a few points worth making. First, it is inaccurate and misleading to call the decision, which was written by Justice Michael Gableman and joined by Justices Prosser, Roggensack and Ziegler, "legislating from the bench." Although this exception is not spelled out in the applicable statute, it is fairly implied from the free exercise clause of the First Amendment and the freedom of conscience clause in Article I, sec. 18 of the Wisconsin Constitution. In fact, courts everywhere recognize it and it is consistent with a general reluctance on the part of courts to examine the internal decision making of religious organizations on matters that implicate the organization's religious mission and precepts. To determine whether the plaintiff in this case was terminated due to her age, an administrative agency or court would have to examine the school's decision in light of its religious mission and that would lead to state evaluation of religious judgments.

Second, it is also unfair to say that the Court found a "loophole" although I can see that there is some poetic justice in the charge for critics of Gableman campaign ads that used that term in connection with certain of the Court's criminal law decisions. People use the term "loophole" in connection with judicial decisions to imply that the principle of decision is either unimportant or not intended for the purpose to which it has been put. Constitutional guarantees, whether in the criminal law or religious freedom context, are never unimportant and often the question of whether they are or are not intended in the way that the Court has used them is precisely the issue before the Court. I may believe that the Court has misinterpreted constitutional protections for criminal defendants, but it is not helpful to think about loopholes. Although the use of that term in campaign literature might communicate my substantive conclusion, it really doesn't help me make it.

Third, it is also wrong to suggest that the Court modified its own precedent or preferred the decisions of courts from other jurisdictions to its own. There was no controlling state Supreme Court precedent on the issue. There was a Court of Appeals decision that is not consistent with the method adopted by the Court but that is hardly binding on the Supreme Court. What the Court did was adopt a "functional analysis" approach to the ministerial exception asking whether the duties of the employee is questions are sufficiently "important or closely linked" to "the fundamental [religious] mission of [the] organization." This test is in distinction to the test used by most courts which is to ask whether the employee's "primary duties" are religious.

Fourth, it would be fair to say that the Court's decision demonstrates at least a favorable nod in the direction of New Federalism, i.e., the idea that state constitutional provisions might be interpreted differently than parallel federal provisions. Although it does not appear that the Court's decision turns on that (and the federal and state provisions at issue here are not identically worded), it is unsurprising. Wisconsin has previously interpreted its freedom of conscience clause more broadly than the United States Supreme Court has interpreted the free exercise clause.

Fifth, Justice Crooks suggestion in dissent that the Court's decision calls into question its prior decision in Jackson v. Benson, upholding the constitutionality of the school choice program seems rather weak. While Coulee Catholic certainly recognizes the idea that religion is suffused throughout the curriculum of at least certain religious schools, Jackson was not based on any assumption to the contrary and the fact that religious schools are religious does not mean that vouchers to students attending those schools violate the Establisment Clause. In fact, the Supreme Court in Zelman v. Simmons-Harris held that it does not. Thus Jackson could be in trouble only if the state Supreme Court were to hold that the state constitution's anti-establishment principle is somehow broader than that of the First Amendment. That has not traditionally been the view of the state Supreme Court.

Justice Crooks seems to think that the idea that the state may not interfere with what is "important or closely linked" to the religious mission of schools calls into question a provision in the school choice program requiring that students be permitted to "opt out" of religious activities (as opposed to subjects that are secular, even if taught in service of the school's religious mission). Perhaps it does. But there is little reason to believe that the outcome in Jackson turned on the opt-out provision. In addition, while Coulee Catholic certainly suggests the rather obvious notion that the state could not compel religious schools to permit students to opt out of religious activities, it is far from clear that such a requirement could not be a condition of state vouchers. That gets us into messy law regarding, among other things, unconstitutional conditions and, suffice it to say, the outcome is hazy.

Sixth, I think that the Court probably got the legal standard right. Even employees of religious organizations whose primary duties are not religious may play a sufficiently important role in their employer's religious mission that decisions regarding their hiring or firing are inextricably tied up with that mission such that the state could not examine these decisions without having to assess religious judgments.


Anonymous said...

The strongest argument, of several compelling ones, that Justice Crooks makes as to why this opinion means the death knell for Catholic schools participating in the Milwaukee School Choice program (in its current form) is the requirement of that program that schools comply with nondiscrimination laws. I'm not sure that such a proviso is constitutionally required. But it's in the program now. How can Catholic schools take public money on the condition that they obey nondiscrimination laws, and then when challenged as to whether they are discriminating, say, oh, you can't look into that, we refuse to subject ourselves to the regulatory regime that enforces those laws, because it would entangle you in our internal ministerial faith-based decisions? Can they say, we'll obey nondiscrimination laws, and then say we don't have to because we are exempt?

Anonymous said...

Just saw your petition regarding the domestic partnership legislation! Thank God for people like you, who are willing to stand up for what is right! It is simply unacceptable to allow hospital visitation for partners who have lived to gether for 30 or 40 years. And protecting them financially? Where do they get off with these "special rights?"

You know, I thought when you and others in the lawsuit, such as Julaine Appling, stated publicly that the amendment was NOT about hospital visitation or basic human rights protections, you had gone off the deep end. Now I realize you were just lying to try to get the amendment passed. What a great plan!

Love to you all!

Rick Esenberg said...

Well, you saw it but you didn't read it because it's not about "protections". I am not, however, going to permit any further comments on the case on this blog because I am representing a client. As a result, I am not free to get into a free wheeling public debate on the case and am bound by certain ethical constraints on what I can say.

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Anonymous said...

Won't comment on the pending case except to note its pretty slick to acknowledge Gabelman's genius on the day you file the petition.

However, in laydude's terms: the court found catholic school teachers are ministers for the catholic church. So the threat to School choice isn't as far fetched as we proponents hope.

I plagiarize now:

1. The "Lifeblood" Justification: The Inseparability of Ministerial Employment Decisions from Religious Practice

The circuits that maintain a broad ministerial exception primarily support the exception through the "lifeblood" justification. Coined by the Fifth Circuit in McClure v. Salvation Army, the justification is based on the premise that ministers are the "lifeblood" of a religious organization, essential to its spiritual functions. Therefore, because ministerial employment is inextricably tied to the organization's functions as a religious entity, judicial review of ministerial employment decisions is tantamount to the review of religious belief and practice, and consequently violates the religious organization's free exercise rights.

See really long article here:

Its pretty clear that this decision is pretty far out there in terms of the ministerial exception. And those less sympathetic to religion may wish to start hiring lawyers. And since we can't comment on your case we'll leave it right there.

Anonymous said...

"Won't comment on the case," esxcept this morning all over the radio. The truth is, he does not want anyone to show that he is lying to you all. Hypocrite.

Dad29 said...

Thanks for your 'splanation of the LaCrosse case; I was a bit disturbed about it (still am) because of the "age" component.

Given ONLY the newspaper story, I assume that it was not a matter of doctrine, nor a 'morals clause', nor a refusal to perform duties by the teacher. That kinda brings it down to income-level (time in grade raises) or age.

The Diocese maintains that it is NOT an "age" matter.

Again, using only the newspaper story, it seems that SCOWI has now exculpted denominational schools from ANY commonly-accepted job-discrimination tests (except for the obvious ones--'morals' and doctrinal. The Catholic Church's social teachings do NOT condone discriminatory treatment; in fact, it is Catholic social teaching which underlies much (but not all) of US law on the topic.

So SCOWI essentially tossed the moral question back into the school's lap. That appears to be technically OK, but still leaves some questions.

Anonymous said...

The decision appeared to keep the state out of religion. However, it also appears to say that State protection is only for secular employees and that she was not a secular employee.

If she were a secular employee, she would be subject to the same "fire at will" policy that can victimize most people. Obviously, she got the same result but just for a different reason. It is best to keep the State out of religion.

Anonymous said...

Ooh dang i just typed a big comment and as soon as i hit post it come up blank! Please please tell me it worked properly? I dont want to write it again if i do not have to! Either the blog glitced out or i am an idiot, the latter doesnt surprise me lol. Cheers,