Ordination of women

[Gaffney, Edward]

1.  I agree with David's preemption point. Which, of course, is why I wrote
*if there were [subjunctive] a genuine conflict."  David is right that Title
VII does *not* occupy the whole field of employment discrimination law.
 There is clearly no conflict with the federal statute if state law provides
more -- not less -- protection.  But more protection of what?  The obvious
answer is more protection of freedom from unfair employment practices,
including sex discrimination.  But that does not end the matter, for the
discussion of the exception and exemption for religious communiities from
the ban on religious discrimination in Title VII  leads me to conclude, as a
matter of statutory construction, that Congress did not intend to include
the ordination of women within the scope of Title VII.  Thus a hypothetical
state law ordering the ordination of women would, as David put it,
"frustrate" an important federal purpose of Title VII: the respect shown by
Congress for the diverse ways in which religious communities understand and
organize themselves.
2.  Like David, I think the so-called "autonomy" cases [which he snipped]
provide a stronger warrant for letting religious communities decide who
shall speak for them or on their behalf in a ministerial capacity at the
"dinner" [to return David's metaphor to the point at issue] or other
sacramental celebrations over which ministers preside.  I added the comment
on Title VII because it is not inconceivable that that may be the source
invoked by a female claimant seeking ordination in a church whose canons
forbid it.  At that point the legislative history as well as cases such as
*McClure v. Salvation Army*, wld be relevant, if not entirely dispositive of
her claim.
3.  Some years ago, Mary Becker at the U of C suggested that any religious
community that maintains a tradition of reserving ordination to men only
should forfeit it tax-exempt status.  Her argument is that such a community
would be in violation of public policy.  This argument seeks to extend the
holding in *Bob Jones Univ v. U.S.*  Does it seem persuasive to folks on the
list? If so, why?
4.  Ordination of women is an instance in which Marci's plea for "reasonable
and flexible" approaches by religious communities wld not seem to me to be
feasible for communiites that do not yet allow this practice.   Reasons may
indeed be offered on behalf of change of this practice.  I have offerred
such reasons within my own community, alas to no avail.  But I would resist
any attempt by the government to impose a change of the discipline by
external coercion.  Ed Gaffney

From: David Cruz
To: RELIGIONLAW
Subject: Re: Cal RFRA & ordination of women
Date: Thursday, January 15, 1998 12:27PM

On Thu, 15 Jan 1998, Gaffney, Edward wrote:

> [snip]
> 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.  [snip]  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.
> [snip]

I am not at all about the suggestion I infer from this argument.
Preemption depends on the question whether there would be "a genuine
conflict."  Title VII does not expressly preempt state antidiscrimination
law.  To the best of my knowledge, courts are not holding that Title VII
by implication preempts the field of antidiscrimination legislation.  Nor
does Title VII direct, say, the Catholic church to refuse to ordain women,
so there is not a case of conflict due to inconsistent commands.  So the
preemption issue turns on questions of frustration of federal purposes.
While I would certainly argue on behalf of a client that the purpose of
Title VII is affirmatively to shield the internal affairs (however vague
their contours may be) of religious organizations, I would be much more
confident on the other side arguing that Congress simply intended not to
exercise federal power in that intrusive manner -- especially since as Ed
noted the "ministerial exception" to Title VII is not stated in its text.

I would be most confident, however, relying on the institutional autonomy
cases to which Ed referred in his first brief point (omitted here) to
argue that the ordination of ministers is still constitutionally protected
as a realm of private activity (cf. the choice of particular friends to
have over to dinner) over which governmental power is not permissibly
exercised (certainly as far as antidiscrimination laws are concerned).  I
thought this was the primary reason that the ministerial exception has
been implied, rather than conclusions about Congress's actual intent.

 -David Cruz, USC Law (Cal.)