Compelling state interest in banning discrim in hiring clergy

[Patrick J. Schiltz]

I'm afraid that recent posts of Eugene and others overstate the protection
afforded to hiring decisions regarding clergy.

To begin with, courts have interpreted "clergy" extraordinarily narrowly;
anyone who does not look a lot like the traditional parish priest is not
considered clergy.  For example, parochial school teachers, who courts
almost view as "junior priests" when the government attempts to provide
benefits to them, are considered secular enough for the government to
pervasively regulate (under Title VII, the ADEA, state versions of the
NLRA, and so on).

Moreover, even within the narrow range of employees that courts are willing
to recognize as clergy, a lot of government regulation is permitted.  Most
courts hold that churches must exercise "reasonable care" in hiring,
supervising, and retaining clergy.  Clergy have been permitted to bring a
wide variety of tort and contract claims against their churches and
ecclesiastical superiors.  And several courts have stated, more or less,
that *any* governmental regulation of clergy is permissible, as long as the
court, in enforcing the regulation, does not have to interpret or apply
religious doctrine.

It is true, as Eugene has pointed out several times, that clergy (narrowly
defined) have been unsuccessful in bringing discrimination claims under
Title VII or similar state statutes.  How long that will continue to be
true is in some doubt.  Many of the cases to which Eugene refers relied
upon Sherbert-type analysis.  Some of the cases specifically grounded their
holdings on the Free Exercise Clause, while others referred generally to
the "First Amendment."  Certainly, an argument exists that this line of
cases is invalid after Smith.  Indeed, in the Catholic University case, the
Clinton EEOC specifically argued that "because Title VII is a
religion-neutral law of general applicability, the Free Exercise Clause
does not bar its application to ministers employed by religious
organizations."  83 F.3d at 461-462.  The D.C. Circuit disagreed, but its
attempt to distinguish Smith was strained.

Pat Schiltz
Notre Dame

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Patrick J. Schiltz
Associate Professor of Law
Notre Dame Law School
Notre Dame, IN 46556

Phone: (219) 631-8654
Fax: (219) 631-4197
E-Mail: schiltz.2 at nd.edu
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