Coulee Catholic: Of Loopholes and Legislating

Wednesday, in a case called Coulee Catholic Schools v. Labor and Industry Review Commission, the Wisconsin Supreme Court held that the “ministerial exception” to state laws prohibiting employment discrimination applied to a teacher in a Catholic grade school. As a result, the teacher’s claim against the school for age discrimination must be dismissed.

There a few points worth making. First, it is inaccurate and misleading to call the decision, which was written by Justice Michael Gableman and joined by Justices Prosser, Roggensack and Ziegler, “legislating from the bench.” Although this exception is not spelled out in the applicable statute, it is fairly implied from the free exercise clause of the First Amendment and the freedom of conscience clause in Article I, sec. 18 of the Wisconsin Constitution. In fact, courts everywhere recognize it and it is consistent with a general reluctance on the part of courts to examine the internal decision making of religious organizations on matters that implicate the organization’s religious mission and precepts. To determine whether the plaintiff in this case was terminated due to her age, an administrative agency or court would have to examine the school’s decision in light of its religious mission and that would lead to state evaluation of religious judgments.

Second, it is also unfair to say that the Court found a “loophole,” although I can see that there is some poetic justice in the charge for critics of Gableman campaign ads that used that term in connection with certain of the Court’s criminal law decisions. 

Continue ReadingCoulee Catholic: Of Loopholes and Legislating

Sarcasm and Public Employment Don’t Mix, Part Deux

GavelBack in my previous blogging life, I wrote about a case by the 11th Circuit, Mitchell v. Hillsborough County, No. 05-12207 (11th Cir., Oct. 31, 2006), which involved a county employee who made satirical remarks about one of the country commissioners, and got fired for it.  In “Swift Would Be Ashamed” from 2006, I wrote about the facts of that case:

Plaintiff Gary Mitchell had a job filming the meetings of his local Board of Commissioners and he also volunteered at the local public access television station. Due to a brouhaha over indecent programming, the Board of Commissioners had proposed to cut public access funding. Commissioner Rhonda Storms was leading the morality crusade, so Mitchell decided to have some fun at her expense. During the open comment period of a supervisors’ meeting, Mitchell took to the podium wearing a beret with a thunderbolt on top and announced that he was a member of a fictitious political support group called the Thunderheads. He then gave a speech praising Storms and concluded with a question: given her preoccupation with women’s body parts, did she prefer the nickname “Vagi” or “Gina”?

I perhaps can understand the efficiency argument in this case (though it is certainly not a slam dunk), but I don’t agree at all that this is not speech on a matter of public concern.  As Robert [Loblaw] points out, that would be like saying Jonathan Swift’s Modest Proposal was really about cannibalism.

The 11th Circuit found that Mitchell’s speech was not a matter of public concern, and even if it was, the efficiency concerns of the employer in ensuring co-worker harmony outweighed any First Amendment rights Mitchell would have had.

Well, the humor of the federal courts has not improved in three years.  Not even in my hometown. 

Continue ReadingSarcasm and Public Employment Don’t Mix, Part Deux

“Well, a satirical piece in the Times is one thing, but bricks and baseball bats really get right to the point.”

Nazis Highway

So said Woody Allen (as Isaac Davis in Manhattan) in response to the suggestion that a Nazi march was “devastated” by a mocking piece in the New York Times.

In Sunday’s  Times, there was an article about a group calling themselves “The Nationalist Socialist Movement – Springfield Unit.”  It has been allowed to participate in Missouri’s adopt-a highway program. Under the program, a group agrees to pick up trash along a stretch of roadside and, in return, a sign is erected at the onset of the “adopted” segment, acknowledging their participation. The Nazis apparently pick up litter in full regalia. 

What to do? Allen’s character suggested picking up bricks and baseball bats and going to “really explain things to them.” Let’s take that off the table.

There is no question that the Nazis have a right to participate. The Supreme Court has held that groups may not be excluded from such programs on the basis of their political beliefs. That case (also arising from Missouri) involved adoption of a highway by the Klu Klux Klan. State officials responded by renaming the road after Rosa Parks.

Legislators have proposed calling the highway on which the Nazis collect trash, the Abraham Joshua Heschel Memorial Highway after the prominent rabbi and philosopher.Although Heschel’s daughter is not happy with the proposal (and her wishes are entitled to great consideration), I sort of like it. Absent the preferred option, i.e., that such people not exist, there is something about having Nazis pick up the garbage on what is, symbolically, a Jew’s road. “Excuse me, there, Horst, but I think you missed that Toblerone wrapper. Be a good little Aryan and pick that up for me.”

I appreciate that people will look at the propriety of such a response in different ways. One argument would be, I suppose, that to do anything more draws attention to the Nazis. But fanatics have a way of drawing attention to themselves. I prefer to see honoring Heschel in the face of these jamokes as the wages of hatred. The Nazis are marginalized and Heschel, who barely escaped the charnel house, is honored.

But this is the faculty blog so let’s explore a legal point.

Continue Reading“Well, a satirical piece in the Times is one thing, but bricks and baseball bats really get right to the point.”