Ordination of women

[Marie A. Failinger]

The biggest problem with Mary's argument, it seems to me, is that it would
require an inquiry into what an "ordained" person does and means in each
sect, which would require mucho intrusion into the sacred rituals of such
sects.  Imagine, for instance, the minister of a religious sect had to
perform some act for which the physical anatomy of the individual DID make
a difference.  (With the return to goddess religion,etc., who knows?)
Or that a sect's view was that ministers must image God to
their congregations, and God (in the only form we have seen God) was male,
so the ministers must be male.  Not only would there be a free exercise
problem treating these sects' religious views less favorably than the
views of those who understood ministering to have no physical demands
and/or no human-image questions.  There would be the question of even
ASKING the religion what its views were.

    But what would be the compelling interest in a state forcing any
religion to accept priests of any kind?  This case is different than Bob
Jones, it seems to me, because:
    a)the Bob Jones rule against interracial dating, if the state had done it,
would have at least implicated a clear violation of the
Constitution given the Loving holding that interracial
intimate relationships, or at least marriage, are constitutionally
protected. In this sense, although we might not want to use this frame,
there is more of a sense that Bob Jones was infringing on a constitutional
"right" than on the "privilege" or "calling" of serving as a minister,
given to very few.
    b)the Bob Jones rule affected many more people than the ordination
rule would affect; and on a much more a "public" concern  and perhaps even
arguably a "secular"  question (though I would not want to push these
distinctions) than the issue of ordination.
    c)Bob Jones could have achieved its purposes almost as easily by
asking students as a matter of conscience not to date interracially, so
the harm to the University of complying with IRS expectations would be
pretty minimal--anyone who defied the
rule could have been socially ostracized or encouraged to transfer.  By
contrast, if this gender (or even, I hate to say it, race) minister thing
was critical to the understanding of the religion as a sacrament, there
would be no alternative way for the religion to effectuate its interest
if the state demanded a gender-neutral ban;
    d)what purpose would the state be serving by withdrawing
tax-exemption for the gender exclusion for ordained ministers?  The
message that gender discrimination in religious ministries
is a bad thing would not be nearly as cleancut as the message sent by the
tax exemption in Bob Jones (the public would probably say, "well, let her
join another church if she doesn't like it," in a way that they might not
say, "well, let the couple transfer to another school if they don't like
it" given public perceptions on religious voluntarism.)

And the complications caused by the message
that the government was singling some religions out for their different
beliefs would defeat whatever minimal benefits it might confer on actual
women. (Indeed, this perception that some religions were singled out for
punishment for their views on race was perhaps the biggest problem with
the Bob Jones result, even if I have to agree with it.) In terms of
benefit to the students from coercing the religious body to comply, in Bob
Jones, interracially dating students could still get an education even if
under a cloud of disapproval; in the ordination case, however, it is
doubtful that a woman minister would have a very good
job if she were forced on a polity that rejects her authority.


On Tue, 20 Jan 1998, Gaffney, Edward wrote:

> 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?
>


Marie A. Failinger
Hamline University School of Law
mfailing at piper.hamline.edu