Over at The Immanent Frame, the constitutional law scholar Leslie Griffin has an interesting piece just up, "Are religious institutions entitled to disobey the law?" her analysis of the Hosanna-Tabor case currently before the Supreme Court. Here's a snippet of her piece:
One recurring justification for the ministerial exception has been the “problem” of women priests. The specter of the Roman Catholic Church being forced to ordain women priests has repeatedly haunted discussions of the ministerial exception. Catholic women priests are wrongly used as a justification for the exception. It was unfortunate that the women priests issue became part of the oral argument inHosanna-Tabor, as it distracts attention from the more important issues at stake in the exception. Four justices—Chief Justice John Roberts and Justices Antonin Scalia, Stephen Breyer and Samuel Alito—raised questions connected to the issue of Catholic women priests.
Let me be clear. No one argues that the courts can force the Catholic Church to ordain women. That argument is a red herring. In the forty years that the ministerial exception has existed, I count only one court case of a Catholic woman who (unsuccessfully) sued to become a priest, but at least ten cases of Catholic women who knew with absolute certainty they were not priests. Yet those women were suddenly ordained ministers when they went to court to enforce their employment contracts against Catholic employers.
Also, earlier this month Winifred Sullivan also wrote on the case.
I admit to struggling with how to think about this case. It makes me quite uncomfortable, as a minister, to think that the church can use the ministerial exception to wield such power over me when I seek to challenge its moral and legal authority. The issue of whistle-blowers on sexual abuse is just one of the most troubling cases Griffin brings to mind. She writes:
In Weishuhn v. Catholic Diocese of Lansing, for example, a case with a cert. petition currently pending before the Court, a Catholic elementary school teacher reported possible sexual abuse of a student’s friend to state authorities as required by Michigan law. Weishuhn was fired for not informing the school principal of her actions. In another case, a Catholic school principal was fired after complaining to the bishop that her priest-supervisor assaulted and battered her. The church successfully asserted that those teachers—who could never be ordained priests—were ministers whose claims could not be reviewed by secular courts. Cases of race and age discrimination, sexual harassment and hostile work environment, and disabilities discrimination and retaliation have met a similar fate. In such cases the ministerial exception protects discrimination instead of religious freedom.
Can the church say to me that the only avenue I have is to take the matter to ecclesiastical courts, not to the court of law? This hasn't worked out so well, not in the Roman Catholic Church, nor in my own Episcopal Church. I guess I never realized that by getting ordained as a priest, I was risking being at the whim of a church that argues that it has complete autonomy in its realm, regardless of the injustices within. Was I simply naive about the power the state has granted to the church?
I'm inclined to think that the ministerial exception is a bad idea, and hope that there are other ways of dealing with the legitimate right for churches to choose their own ministers (e.g. the Catholic Church's limiting of the priesthood, the example that both Griffin and Sullivan suggest is wielding perhaps too much of an influence on the justices' thinking). I wonder what others here think.