Earlier this fall, the Wisconsin Supreme Court granted a petition for review in Coulee Catholic Schools v. Labor and Industry Review Commission. The decision below is here.
The case involves the scope of the ministerial exception to age discrimination claims under the Wisconsin Fair Employment Act. The complainant, Wendy Ostlund, was a teacher in a Catholic grade school who had been laid off. While certain of her duties were explicitly religious, e.g., she taught religion, led the students in prayer, prepared them for liturgies, and sometimes incorporated religious themes into secular subjects, most of her day was not spend in expressly religious activities.
The Court of Appeals held that the application of the exception turned on whether Ms. Ostlund’s primary duties were minsterial, i.e., did they consist of “teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship . . . .” The exception applies only when a position is “quintessentially religious,” because it is such a position that presents the prospect of making an “inroad on religious liberty” that is “too substantial to be permissible.”
Continue reading “SCOWIS to Consider Scope of Ministerial Exception”
So says Daniel Long of Muncie, Indiana, who put a statue of Jesus outside the patio door to his apartment. Mr. Long placed a spot on the statue that casts His shadow on the apartment building, which apparently overlooks a polling place.
The manager of the complex asked him to remove the statue and, when Long refused, tried to remove it himself, causing a near altercation and the observation that titles this post.
What I find interesting is the manager’s claim that he is required to remove the statue because of the Fair Housing Act, which prohibits any “notice, statement or advertisement that indicates a preference, limitation or discrimination based on religion” in the sale or rental of housing.
That argument seems to be a non-starter.
Continue reading ““When You Go To Tearing the Lights Off My Jesus … You Just Don’t Do That””
I tend to be supportive of faith-based alternatives in state funded social programs and education for a variety of reasons. For better or worse, we live in a time and place in which most such services are going to be publicly funded. To exclude faith based approaches is to eliminate a set of approaches that might be quite effective and sends a message about the propriety of faith-based perspectives in the public square.
Such approaches must be carefully designed to avoid compulsion and to ensure the availability of secular alternatives. But government should also avoid the temptation to remake faith-based approaches in its own image. I am opposed, therefore, to the expansion of federal and local civil rights laws to the extent it interferes with the ability of faith-based organizations to hire for mission, i.e., to prefer hires who share the group’s religious presuppositions. Continue reading “Priorities for the Next President: Make Way for Faith-Based Alternatives”
In the last two weeks or so, my employment discrimination law class has been studying disparate impact litigation. One of the more challenging cases that we study is the Fitzpatrick case from the 11th Circuit concerning the no-beard policy of a fire department.
The policy is supported by the need to have a good seal between a firefighter’s respirator and his face. The policy was claimed to have a disparate impact on black firefighters with a skin condition making in difficult for them to shave. The 11th Circuit, in 1993, found that although there might be a disparate impact, the fire department was able to show that the practice was consistent with business necessity because of safety concerns the fire department had regarding use of these respirators by firefighters even with so-called shadow beards.
Fast-forward fifteen years and now comes a similar case in the D.C. Circuit concerning the no-beard policy of the fire department. Instead of race discrimination, this suit alleges that a clean-shaven face for safety personnel violates some employees’ religious freedoms under the Religious Freedom Restoration Act of 1993 (RFRA). As such, the Title VII framework does not apply and instead the court must balance the exercise of religious liberties with competing government interests. This type of balancing test reminds me much more of a public employee case involving free speech rights.
In any event, the BLT blog has the details: Continue reading “To Shave or Not to Shave: That is the Question in This Workplace RFRA Case”
Last week saw another round in the ongoing legal battle between the University of Wisconsin and the Madison campus’ Roman Catholic Foundation. In Roman Catholic Foundation v. Regents, 2008 U.S. Dist. LEXIS 72980 (W.D. Wis., September 24, 2008), the court addressed the University’s refusal to allow segregated fees (that portion of a student’s tuition reserved for the funding of student organizations) to be used for certain RCF activities that the University regarded as worship, proselytizing, or sectarian instruction. These activities involved programs such as spiritual counseling, training RCF student leaders, the purchase of a drum shield to be used by the RCF’s praise band, and the printing of instructional pamphlets on praying the Rosary.
District Judge Lynn Adelman of the Eastern District of Wisconsin, sitting by designation, entered a declaratory judgment “stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.”
As far as this goes, it seems to me to be consistent with recent decisions of the United States Supreme Court holding that even highly sectarian religious speech may not be excluded from a public forum if is otherwise within the forum’s purpose. Continue reading “Of Speeches and Sermons”
Representative Tom Tancredo has introduced something he calls the “Jihad Prevention Act.” The bill would exclude from admission into the United States of “[a]ny alien who fails to attest . . . that the alien will not advocate installing a Sharia law system in the United States . . . .” The bill raises a number of questions but the one that calls out to me is the question of the government’s interest in the religious beliefs of its citizens. Constitutional doctrine says that the state must make no religious decisions and treat all equally but, as I argue in a forthcoming paper (and I was hardly the first to notice), the government engages in all sorts of conduct that is calculated to shape the religious beliefs of its citizens, and there is probably no way to avoid that. Certain religious systems may well be incompatible with liberal democracy. Christian Dominionism may be one of them. Perhaps a form of Islam insisting upon Sharia law is another.
Does the government have an interest in discouraging the formation and spread of such beliefs? If so, what can it do to further that interest?
This Friday, in my seminar on Law & Theology, we turn to a topic that is near and dear to my heart – the role of religion in public discourse. Although not all proponents of minimizing God talk in the public square seek to mold a secular society, some do. They argue that religion – particularly religion outside of the highly privatized and skeptically contingent world of liberal Protestantism – is irrational and, for that reason, potentially dangerous. Richard Rorty told conservative Christians that the goal of a liberal teacher is “to discredit you in the eyes of your children, trying to strip your fundamentalist religious community of dignity, trying to make your views seem silly rather than discussable.” Children from such homes, he wrote, “are lucky to find themselves under the benevolent Herrschaft [domination] of people like me, and to have escaped the grip of their frightening, vicious, dangerous parents . . . .”
Within the legal academy, Steven Gey argues that the public square should be a “religion free zone” and popular writers, such as Richard Dawkins and Sam Harris, write bestsellers calling for the end – or at least the marginalizing – of faith. In a forthcoming film, comedian (?) Bill Maher announces that “[t]he plain fact is religion must die for man to live.”
But is this assumption of a post-religious world governed by rationality consonant with reality? Continue reading “The World Remains a “Land of Dreams””
The Open Door Church has sued the Sun Prairie (Wis.) Area School District in federal court in Madison. The complaint alleges that the district has adopted a broad policy permitting community groups to use the district’s facilities. However, the district seems to have adopted a policy of permitting waiver of rental charges for all potential users, except religious groups. As a result, the church has paid a fee for using a school classroom for weekly meetings of a club for children, while a variety of other groups, allegedly engaging in similar but nonreligious uses, were not charged.
Although the district has now changed its policy to require that all groups be charged, it has grandfathered those users for whom fees have already been waived, thus perpetuating any unconstitutional distinction between religious and nonreligious users. Continue reading “The Door’s Open, But the Ride It Ain’t Free”
One of my guilty pleasures – and the guilt is substantial – is the animated series “South Park.” I fully admit that the show is occasionally offensive and often tacky, but the laughs are worth it.
Everyone doesn’t agree. Via the indispensable Religion Clause Blog, we learn that authorities in the Basammy region of Russia want to ban the show, citing an episode called “Mr. Hanky’s Christmas Classics,” which contains some faux Christmas carols (on which I will not elaborate) that certainly might offend certain religious sensibilities (although it is hardly the most offensive bit of the South Park library). The effort apparently rests upon a 2006 law that prohibits “the abasement of national dignity” and “inciting religious and national hatred.” Continue reading “Russian Officials to South Park: “Respect My Authoritah!””
The Ninth Circuit Court of Appeals, sitting en banc, recently decided an interesting religious freedom case. In Navajo Nation v. U.S. Forest Service, American Indians sought to prohibit the federal government from allowing the use of artificial snow for skiing on a portion of a public mountain considered sacred in their religion. Apparently, the government planned to use recycled wastewater, which contains 0.0001% human waste and would, in the view of some of the plaintiffs, desecrate the entire mountain, deprecate their religious ceremonies, and injure their religious sensibilities. This, they argued, would violate the Religious Freedom Restoration Act.
The RFRA, in general, allows plaintiffs to challenge government practices that substantially burden the exercise of religion. If there is a substantial burden, the government must demonstrate that the burden is the least restrictive means to achieve a compelling interest. It was enacted in response to a Supreme Court decision that said, essentially, no such claim could be brought against neutral laws of general applicability under the Constitution’s Free Exercise Clause.
The Ninth Circuit (over three dissents) rejected the challenge. That doesn’t surprise me. Any rule that required accommodation of the plaintiffs’ claim here would likely result in religiously based gridlock on a host of policy questions. The outcome tracks an earlier Free Exercise decision. What interests me is the court’s reasoning. Continue reading “Desecrating a Sacred Mountain”