Cal RFRA & ordination of women

[Gaffney, Edward]

Doug writes:
        "A nondiscrimination exception covers a huge range of cases.  I do
not believe that bans on marital status housing discrimination serve a
compelling interest; others disagree.  I may get more agreement for the
proposition that requiring Catholics to ordain women does not serve a
compelling interest, but I know there are people who disagree even with
that.  Both of these potential applications would seem to follow from the
exception for nondiscrimination statutes."

Assume that the California RFRA gets enacted with an exception for its
antidiscrimination laws.  It would still not follow that Catholics could be
required by law to ordain women to the priesthood.  Ditto for any other
religious group with similar gender restrictions on the ministry or
rabbinate.
I offer two reasons for this conclusion.  First, this result would be
inchorent with the so-called "religious autonomy" cases (*Watson v. Jones*
and its progeny, including *Cath Bishop of Chicago v. NLRB*), about which
Doug has written so persuasively in his Columbia L. Rev. article.  Second,
if there were a genuine conflict between the state law provision and the
federal exemption of non-profit religious organizations in Title VII, then
the Supremacy Clause would require the federal provision to govern.  That
provision on its terms does not expressly address the ordination of women,
and is limited on its terms to taking into account the religious commitments
rather than the gender of a prospective employee.  But the language in
*Amos* (sustaining the Title VII exemption on an Establ Cl challenge)
generally favors the group rights of religious communities.  And  lower
courts have construed the Title VII provision to protect churches in their
ability to select candidates for the ministry.  For example,  *McClure v.
Salvation Army* involved a claim that a female minister was being treated
less favorably than other male ministers, and the Fifth Circuit said it had
no power to compel a religious group to change its views of sacred ministry.
 If the Catholic Church comes to change its collective mind on the
ordination of women, it should do so on the basis of what Marci calls
"ongoing revelation" rather than through the coercive power of the state.
For these very reasons, however, I think it wld be a better idea if the
Calif legislature wld either drop its broad exception for the
antidiscrimination laws, or at least clarify that nothing in the Act shall
be construed to affect the ability of a religious organization to maintain
its criteria for the selection and employment of ministers, priests, or
rabbis.
Ed Gaffney