The impressively-crafted, logically airtight majority opinion of moderate Reagan appointees Edward Becker and Richard Nygaard (both on senior status) preserves anti-discrimination protections for ministerial employees of religious institutions without compromising the constitutional protections that such institutions enjoy. Controversial Bush II appointee D. Brooks Smith wrote the dissent, which – undoubtedly to the delight of movement conservatives – would have used the First Amendment's religion clauses to wipe out federal protections for an entire category of workers. Sadly, the decision will be among the last, if not the last, published under Judge Becker’s authorship. The 73 year-old jurist passed away several days ago.
Lynette Petruska was hired by Gannon as Director of Social Concerns in 1997. In July 1999, the college appointed her to be its first female chaplain, a high-ranking administrative position that included ancillary religious duties like holding prayer services. Due to the college’s history of gender discrimination, Ms. Petruska said she sought and received assurances from the college president that she would not be replaced either when a former male chaplain returned from a stint overseas or when another male became available. But when the former chaplain returned, a key college official with a reputation for being unable to work with women asked the acting president to place the former chaplain above Petruska because of Petruska’s sex. The acting president refused, but the official made clear that, once a new president came on board, he would "clean house" by demoting Petruska and two other high-level female administrators.
And that's exactly what happened. In May 2001, soon after taking office, the new president transferred Petruska's decision-making authority to the returned male chaplain. A year later, the new president removed Petruska from his staff and formally demoted her. Because an ensuing series of events led Petruska to believe she would be fired, she resigned. Soon after, the chaplain who had become Petruska's supervisor repeatedly told students that the college would not consider replacing Petruska with another woman.*
Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on sex. By its terms, the law does not exempt from this protection workers like Petruska who perform ministerial duties at religious institutions. The First Amendment, however, allows religious institutions to follow their beliefs freely and forbids government, including courts, from getting too entangled in religious affairs. So what is a court to do when Title VII and the First Amendment potentially come into conflict, i.e., when a church or a church-affiliated entity is alleged to have violated Title VII by firing a ministerial worker? It is this complicated situation that the Third Circuit had to navigate.
Carefully balancing the Constitution's commands and the will of Congress in enacting Title VII, Judges Becker and Nygaard did the judiciary proud. They recognized that if a religious institution's discriminatory employment decision is motivated by its own beliefs, doctrines or internal rules (for instance, if a Catholic church refuses to hire a woman as a priest), Title VII is trumped by the First Amendment and offers a ministerial employee no protection. But if, as Petruska alleged, a religious institution discriminates for reasons "unrelated to religion," Title VII remains in full force. "Employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion that the Constitution protects," Judge Becker wrote. He went to explain in painstaking detail how adjudicating Petruska’s case need not entail constitutionally-prohibited court scrutiny of religious affairs.
Where Judges Becker and Nygaard used a scalpel, Judge Smith went for the bludgeon. In his non-nuanced view, any employment decision involving a ministerial employee is necessarily religious in nature, entangles the court in religious matters, and thus always enjoys First Amendment protection pre-empting Title VII’s safeguards. But as Judges Becker and Nygaard observed:
Such an approach would risk foreclosing perfectly valid claims, thereby ignoring the will of Congress without a justification rooted in the Constitution. We will not, until we have a constitutional reason to do so, enfeeble a law triggered by a Nation's concern over centuries of racial injustice and intended to improve the lot of those who had been excluded from the American dream for so long.
And that’s exactly the point. Movement conservatives will no doubt say that Judges Becker and Nygaard are "activists," and that Judge Smith is "restrained." But who here is respecting the legislature and who here is interpreting the Constitution’s provisions (broadly, not strictly, by the way) to diss it? At some point, those tired right-wing talking points will be forced to give way to stubborn facts.
A couple of months ago, the University of Houston published a study showing that Bush II appointees were less protective of individual rights than judges appointed not only by recent Democratic presidents, but by any of the current president’s Republican predecessors as well. This case, which pits two moderate conservatives appointed by Reagan against a movement conservative appointed by Bush II, exemplifies the study’s conclusions.
Petruska v. Gannon University, No. 05-1222, slip op. (3rd Circuit Filed May 24, 2005)
*Petruska also alleged that the college retaliated against her for airing the concerns of a female employee who had been harassed by the past president, who at the time of the complaint was already on leave for having an affair with a different female subordinate.
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