Unused and Probably Unusable

In the late Senior Circuit Judge Ed Becker's last opinion, he crafted a "masterful" and "compelling" decision (adjectives mine, quotation marks purely to amuse me) - just ask anyone. Anyone, perhaps, except Judge D. Brooks Smith, who penned a dissent, which compained that the decision "plac[ed] this Court at odds with every other federal court of appeals to consider the issue." (hat tip to Howard for the links)

What's the issue? Whether the ministerial exception, which is an exception to Title VII's antidiscrimination rules in the employment setting, is avoided by allegations of discrimination "unrelated to religion."

Here's how the theory goes: surely a church can be "prejudiced" in favor of, say, members of its own religion when considering whom to hire in the deacon spot. Or, it can refuse to hire a homosexual as janitor if it can plausibly argue that such persons are repugnant to their religion, and they therefore needn't be an equal opportunity employer. The alternative to such an exception would impose a heavy burden indeed on the right to selectively associate, long held to be an important part of the right to unimpeded practice of one's religion.

I wonder at the contrast between the majority's position ("We adopt a carefully tailored version of the ministerial exception," slip opinion at p.3) vs. the dissent's position ("I disagree with the majority's fundamental premise that a church's choice choice regarding who performs particular spiritual functions is not necessarily a religious decision." slip op. at p.61).

Well, I can imagine a case where I think DBS is wrong.

Imagine the church leaders saying:

We have before us two equally satisfactory candidates - from a purely doctrinal point of view. Both are excellent, intelligent, well-versed and well-prepared, gorgeous to look at and deeply committed to our religion. I like candidate #2 a little better, in fact, on a purely objective basis; he got slightly higher test scores in middle school. Otherwise, they are nearly identical. Except, one thing. Candidate #2 is a (insert wildly derogative term for a sexual/ racial/ ethnic/ national/ etc. minority), and I really detest and fear those. There's nothing in our religion about them, but I just viscerally dislike them. Based on purely non-religious reasons, I vote we go with candidate #1. Everyone agree?

Now, this is a) a stupid thing to say, and b) bizarrely counterfactual. That's not how things in fact work. But it does illustrate what Circuit Judge Smith denied could ever be, a decision by a church that rested on purely non-religious reasons.

I respect Judge Smith's dissent, which is not as simplistic as my narrow criticism might suggest, and merely quibble with his position that any claim regarding employment under Title VII necessarily "implicate[s] the church's right to select its spiritual leaders," slip op.at p.62 - and that the ministerial exception does not need to have any arguable basis the defendant can point to in "faith, doctrine, or internal regulation" as the majority puts it, slip op. at p.27.

Yet another exciting chapter in the ongoing struggle to define what the First Amendment requirements of non-establishment plus freedom to exercise means, especially when those concepts run up against the requirements of other laws.