More on Coulee Catholic Schools v. LIRC

Posted on Categories Constitutional Interpretation, First Amendment, Labor & Employment Law, Wisconsin Civil Litigation, Wisconsin Law & Legal System, Wisconsin Supreme Court

discriminationAs Professor Esenberg has just posted about, earlier this week, the Wisconsin Supreme Court handed down a very important decision, Coulee Catholic Schools v. LIRC (2009 WI 88). Although some describe the holding as “a dramatic change” in Wisconsin employment law, I think the case is more important for its constitutional discussion. On the actual question presented, I think the Court’s holding was straightforward, correct, and not very dramatic.

In Coulee Catholic Schools, the Court was asked whether a first grade teacher in a Catholic school was subject to the “ministerial exception,” meaning that the school’s religious freedom to select its own ministers and leaders barred her age discrimination claim. Half the courts in the country that have considered this question concluded that a religious school teacher is engaged in sufficient ministry to be included, while half have said that such a teacher is not. The Wisconsin Supreme Court decided that the religious school teacher in this case did engage in and lead sufficient religious activities to fall within the exception.

As the product of seven years of Catholic primary school, and the son of a longtime Catholic schools teacher, I’m convinced the Court got this determination right. Catholic school teachers lead prayer, organize Mass, teach the Catholic faith, model a moral and devout life, and incorporate religious principles into the “secular subjects” they teach as well. A religious organization should have the religious freedom to select those who communicate its faith to the rising generation free from state interference.

In addition to Professor Esenberg’s observations, let me highlight three other key points from the case:

1. Robust Religious Liberty Protection in Wisconsin. The majority’s discussion of the Wisconsin Constitution, Art. 1, Sec. 18 in paragraphs 58-66 describes a very strong protection for the free exercise of religion and conscience in Wisconsi, following the Court’s precedent in State v. Miller. Looking at the text of the clauses, the Court concludes, “It is difficult to conceive of language being stronger than this.”

This language could be important in future cases.  For instance, if future challenges were filed in the health care conscience context after the Compassionate Care for Rape Victims Act or the Madison Surgery Center decision.

2. An emphasis on constitutional text. Since the mid-1970s, the Wisconsin Supreme Court has relied heavily on legislative and popular history when interpreting the Wisconsin Constitution. In this case, the majority cited the standard three-factor test from Beno, but emphasized the importance of text as the first and foremost source. I have been working on a law review article regarding interpretation of the Wisconsin Constitution (more on that soon), and this decision definitely represents a positive step towards a more text-based interpretive method.

3. Elections matter. Justice Gableman wrote the majority opinion in this 4 to 3 decision. It’s quite probable that if Justice Butler were still on the Court, the decision would have gone the other way. As the Wisconsin Family Council noted on its blog, the closing paragraphs of the majority opinion contained an important line: “As a court, our job is to interpret and apply the law the people adopt, not to make it up in accord with ours or society’s current policy preferences.”  This rings especially true when placed alongside Justice Ziegler’s concurrence last week in VFW Post 2874.

3 thoughts on “More on Coulee Catholic Schools v. LIRC”

  1. We Catholics always understand that ours is the only religion, and therefore when our special schools fire our “ministers”– first grade teachers, janitors?– well, good god, we are Catholics!

    But if I ran a Jewish school, and fired a teacher for being Catholic, would the rush to embrace their infallible church be the same?

    The church has now fought for and won the fight to fire the elderly… Congratulations. Ask my mom for money now.

  2. “As the Wisconsin Family Council noted on its blog, the closing paragraphs of the majority opinion contained an important line: ‘As a court, our job is to interpret and apply the law the people adopt, not to make it up in accord with ours or society’s current policy preferences.’ This rings especially true when placed alongside Justice Ziegler’s concurrence last week in VFW Post 2874.”

    Unfortunately, Daniel, you make a good point, but support it with reference to Justice Ziegler’s concurrence in VFW, which was ridiculous. In that concurrence Justice Ziegler initimated that the law was clear and there was nothing to do for the VFW. The dissent, however, demonstrates that is not the case. In fact, Justices Ziegler and Gableman, supposedly judicial conservatives, disregarded a valuable private property right and endorsed the City of Milwaukee’s taking of that property for no compensation at all. It was quite telling that they joined Justices Abrahamson and Bradley, two noted judicial liberals who are expected to vote like this.

  3. Hi, Nicole. Thanks for the comment.

    Truth be told, I’m not sure how I would have voted in VFW. After rereading the opinion, I see points on both sides, and obviously I respect justices on both sides. I’d have to read all the underlying opinions before I settled on how I would vote.
    I’m certainly sympathetic to the dissent — how can you but love an opinion that begins and ends with a John Adams shout out? And the broad principles that Justice Prosser articulates, and which you share, are mine as well. Property, like firearms, is a right that secures the ability to enjoy other rights.

    That said, the underlined portion of Green Bay Broadcasting seems pretty clear. Justices Ziegler and Gableman felt they were following precedent, which called for adherence to the unit rule even when it leads to the leaseholder getting screwed, as in this instance.
    Both adherence to constitutional text and adherence to precedent are conservative values. For a great discussion of why difference legal conservatives prioritize one over the other, I suggest the Strauss-Merill debate in Vol. 31, issue 3 of the Harvard Journal of Law and Public Policy.

    Regardless of whether Justice Ziegler got the outcome right in this particular case, the sentiment expressed in her concurrence — that judges should set aside empathy and apply the law — is a good one, and one that I believe also found voice in the Coulee Schools majority decision.

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