Comments on: Religious liberty wins 9-0 at SCOTUS in “ministerial exception” case

By: January 15 roundup

January 15 roundup — Sun, 15 Jan 2012 19:17:06 +0000

[…] Prof. Mike McConnell on Hosanna-Tabor [Fed Soc, earlier] More: […]

By: VMS

VMS — Fri, 13 Jan 2012 14:57:48 +0000

A_random_guy is correct! If an employer hires someone who is a member of a “protected class,” if the need arises, it will be MUCH more difficult to lay off or fire that person. On the other hand, if the employer fails to hire a member of a protected class, there is no track history and nothing but the subjective opinion of the employer as to why one person was hired over another.

By: EEOC Says High-School Diploma is Discriminatory Requirement, Stretches Employment Laws to Harm Small Employers

Thu, 12 Jan 2012 18:41:25 +0000

[…] Court unanimously rejected the argument of the EEOC and the Obama administration that churches do not have any religious-freedom rights that protect their hiring decisions against liability under federal employment and […]

By: Jack Wilson

Jack Wilson — Thu, 12 Jan 2012 15:34:09 +0000

A return to the at-will principle of employment would handle most of this type of issue.

By: a_random_guy

a_random_guy — Thu, 12 Jan 2012 13:39:54 +0000

David Schwarz writes: “It is clear how a Court could determine this in the case of a secretary, janitor, or salesman. But how does a Court determine whether a person is or is not capable of satisfactorily performing the job of a Catholic priest?”

Actually, it’s not clear at all. What qualities a particular company requires for a particular position depends very much on the company. Most employment regulations are (imho) counterproductive.

Taking the ADA as an egregious example: if you hire a disabled person, you are letting yourself into a world of hurt. Hence, many companies will do anything they can to avoid hiring the disabled. In other words, practically speaking, the ADA makes it more difficult for the disabled to find productive jobs.

The same can be said of many (most?) other employment regulations: the paperwork and bureaucracy they create cost far more than any well-intended benefits they are supposed to have.

By: David Schwartz

David Schwartz — Thu, 12 Jan 2012 08:35:25 +0000

James: In any such case, a key point of contention will always be whether the person is capable of satisfactorily doing their job. It is clear how a Court could determine this in the case of a secretary, janitor, or salesman. But how does a Court determine whether a person is or is not capable of satisfactorily performing the job of a Catholic priest? How do they determine which job functions are essential to the church’s religious mission and which they can do without?

By: Smart Dude

Smart Dude — Thu, 12 Jan 2012 03:59:49 +0000

For “Constitutional Scholar” Obama and henchman Holder to generate a 9-0 loss in SCOTUS indicates a profound absence of constitutional scholarship.

By: Walter Olson

Walter Olson — Thu, 12 Jan 2012 02:49:33 +0000

>James – The ADA itself was incidental to the case as it developed. The church treated her as being religiously noncompliant (which entailed dismissal from that job) because she defied an element of church doctrine requiring believers to resort to church tribunals rather than civil courts. The Supreme Court correctly construed the employment discrimination laws as a form of forced association, and as such inconsistent with a church’s genuine autonomy in selecting leaders and transmitters of doctrine. This is so whether the particular category is race, age, disability or whatever.

>Nevins – The church had reserved the job in question for persons with a “calling,” though only some of its duties were religious. The Court quite rightly in my view declined to encourage the federal government to engage in extensive second-guessing of churches’ own determination that teaching jobs like hers should be reserved for the “called.”

By: James

James — Thu, 12 Jan 2012 02:42:27 +0000

@Hugo:
Would any law require that? Being capable of public speaking is clearly a bona fide job requirement for a minister.

By: nevins

nevins — Thu, 12 Jan 2012 02:30:50 +0000

The claim of ministerial exception seemed misplaced. The employee was a lay teacher with lay subjects. Why not interpret employee’s status based on whether this bestowing of ‘ministerial’ capacity is consistent with other employment practices at this school.