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Wednesday, June 21, 2006

UPDATE: Will Religious Institutions Be Free to Discriminate Against Employees?

A few weeks ago, we reported on a well-reasoned Third Circuit opinion (written by now-deceased Reagan appointee Edward Becker) which maintained anti-discrimination protections for ministerial employees of religious institutions, while preserving the traditional constitutional protections those institutions enjoy. In the case, Bush II appointee D.Brooks Smith authored a dissenting opinion which found that religious institutions should have much broader constitutional protections, insulating them completely from employment discrimination actions by ministerial employees. Yesterday, the Third Circuit, sitting en banc, voted to vacate the judgment and returned the case to the panel for rehearing. The case will be reheard by a new panel because of Judge Becker's passing and circumstances which require Judge Nygaard (the other original panel member voting with Judge Becker) to recuse himself. The new panel will consist of two Reagan appointees, senior status Third Circuit judges Cowen and Greenberg, as well as original panel member D.Brooks Smith. We'll keep our eye on this case and let you know what conclusion this new panel comes to. Stay tuned.

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