The New York Times has an interesting series of articles about the legal position of religious organizations. The separation of church and state serves such organizations by letting them have many more freedoms than is the case with other nonprofits. It's fun to speculate what might happen to these extra freedoms if the religious conservatives had their way and the wall separating religion from the government was totally pulled down. It looks to me as if the conservatives might not like what they get.
But the current situation is not that beneficial to the employees of religious organizations. Take the case of Mary Rosati, a novice, who was dismissed from her order after she was found to have breast cancer. The incentive to dismiss her was clearly the cost of the treatment, but the reason the order got away with it was religious freedom:
His client was a middle-aged novice training to become a nun in a Roman Catholic religious order in Toledo. She said she had been dismissed by the order after she became seriously ill — including a diagnosis of breast cancer.
In her complaint, the novice, Mary Rosati, said she had visited her doctor with her immediate supervisor and the mother superior. After the doctor explained her treatment options for breast cancer, the complaint continued, the mother superior announced: "We will have to let her go. I don't think we can take care of her."
Some months later Ms. Rosati was told that the mother superior and the order's governing council had decided to dismiss her after concluding that "she was not called to our way of life," according to the complaint. Along with her occupation and her home, she lost her health insurance, Mr. Heck said. Ms. Rosati, who still lacks health insurance but whose cancer is in remission, said she preferred not to discuss her experience because of her continuing love for the church.
Then there is the immense opportunity for sex discrimination that such religious freedom allows. This is partly because religions almost always have rules which deny women positions of power, but there are even wider fields for those who like to punish uppity women here:
For 28 days last May, Lynette M. Petruska, a former nun who now lives in St. Louis, thought she had finally found judges willing to listen to her complaint against Gannon University, a coeducational Catholic college in downtown Erie, Pa. As it turned out, she was wrong.
Ms. Petruska was educated in Catholic schools from kindergarten to college commencement, graduated at the top of her law school class and practiced law for several years before deciding to become a nun. In 1999, as she was working toward taking her final vows, she became the first woman to serve as Gannon's chaplain.
Three years later she was demoted and, according to her complaint, effectively forced out. In her lawsuit, she said this action was in response to her having notified the administration of a case of sexual misconduct by a senior university official, resisted efforts to cover up that case and opposed proposals to weaken campus policies on sexual harassment. In 2004, she sued, accusing the university administration of forcing her out simply because she was a woman and because she had opposed the sexual harassment others experienced on campus.
Gender bias claims against religious employers have generally been dismissed under the ministerial exception. But some judges across the country have been less quick to dismiss cases where sexual harassment or abuse of an employee is involved. And unlike many other plaintiffs, Ms. Petruska claimed that her supervisor had actually acknowledged to her that she was being demoted solely because of her sex, not because of any religious doctrine.
Judge Sean J. McLaughlin of the United States District Court for the Western District of Pennsylvania nevertheless ruled that Gannon was protected by the First Amendment and the ministerial exception from any court interference in its choice of chaplain. Gannon itself argued that it had many women in leadership positions and that Ms. Petruska had resigned simply because she was unhappy with a staff reorganization. But its fundamental argument was that it would be unconstitutional for the court to second-guess these disputed decisions.
"You may ask, 'Why should these decisions go unquestioned?' The reason is plain and simple: The First Amendment protects a church's right to freely exercise its religion," said Evan C. Rudert, a lawyer for the university. "And that includes organizing itself as it chooses and selecting those who it believes will serve best as its leaders — without interference from the courts."
Then, last May, in a decision that caused considerable comment in legal circles around the country, a federal appeals court panel reversed the trial judge's decision.
For four weeks, the prevailing law in Pennsylvania, New Jersey, Delaware and the Virgin Islands — the jurisdiction of the United States Court of Appeals for the Third Circuit — was that "employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion."
Appellate Judge Edward R. Becker wrote that opinion; his colleague on the three-judge panel, Judge D. Brooks Smith, filed a stinging dissent. A few days later, Judge Becker died. On June 20, in a rare move, the Third Circuit granted Gannon's routine request to have the case reconsidered and named Judge Smith to the new three-judge panel that would do so.
On Sept. 6, the new panel swept the earlier decision away, unequivocally restoring the protections for religious employers that it had put in doubt. As Judge Smith put it, the ministerial exception "applies to any claim, the resolution of which would limit a religious institution's right to choose who will perform particular spiritual functions."
Ms. Petruska, who has left her order and returned home to work at her old law firm, describes herself as a feminist who is "committed to peace and freedom." She has a long history of putting her words into action — she has been arrested at protest marches, most recently at an antiwar rally the day before the Iraq war began, she said. She plans to appeal the ruling against her.
"I think this issue needs to be decided by the Supreme Court," she said. And she has hopes that the justices will agree with Judge Becker that, absent some grounding in religious doctrine, sex discrimination by religious employers is wrong.
"Absent some grounding in religious doctrine, sex discrimination by religious employers is wrong", she hopes. If that was correct things would get quite interesting. The more anti-woman a religion would be by doctrine, the more it could freely discriminate against women. Funny kinds of rewards in that system, don't you think?
What makes this whole conversation important is the Bush administration practice of awarding large sums of money to religious institutions for social welfare related tasks. Even if there is a conceptual wall between the religious aspect of such institutions and their caring aspect, it's pretty obvious that the administration has made all us taxpayers into supporters of various types of discrimination, and not only discrimination based on gender. Read the whole article for other examples.