UPDATE: Third Circuit Gives Its Blessing to Discrimination Against Church Workers

Religious employers in Pennsylvania, New Jersey and Delaware now have license to discriminate against their ministerial employees based on gender – or for whatever reason they like. On September 6, the Third Circuit, led by Bush II appointee D. Brooks Smith, held that the First Amendment wipes out Title VII’s anti-discrimination protections for religious ministers, even where a religious organization discriminates for reasons completely unrelated to religious doctrine.

In an earlier panel decision in the same case, moderate Reagan appointees Edward Becker and Richard Nygaard reached the opposite conclusion, with Judge Smith dissenting. But Judge Becker died just before the original panel decision was formally issued. So the Third Circuit granted the request of Gannon College, a Catholic school, to vacate the decision and have the case reheard. Judge Nygaard recused himself from the reconstituted panel for unspecified reasons, leaving only Judge Smith from the original panel. The newly formed panel – with Judge Smith now joined by two more conservative Republican-appointed judges – adopted Judge Smith’s dissenting view and dismissed the Title VII claims of Lynnette Petruska, a former chaplain at Gannon.

A more detailed description of the underlying facts is available at our initial Full Court Press report. In sum, key officials at Gannon allegedly demoted Petruska and forced her to resign, not because of anything having to do with church doctrine, but rather because of their strong bias against women.

The original panel decision recognized that if a religious institution's discriminatory employment decision is motivated by its own beliefs, doctrines or internal rules, Title VII is trumped by the First Amendment and offers ministerial employees no protection. But it held that if a religious institution discriminates for reasons "unrelated to religion," Title VII remains in full force. Carefully balancing the Constitution’s commands against the will of Congress, the original panel rejected (properly, we think) Judge Smith’s categorical view that the religion clauses provide a blanket exception to Title VII for ministerial employees:

[Judge Smith’s] 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.

Thanks to the reshuffling of the panel, Judge Smith’s erstwhile dissent is now the law of the Third Circuit. The result raises questions of procedural fairness because the Third Circuit, instead of reconstituting an entirely new panel to bring a fresh, unbiased view to the matter following Judge Becker’s death and Judge Nygaard’s recusal, allowed the case to go forward with one holdover panelist, Judge Smith, who had already expressed an opinion on the merits of the case.

Petruska v. Gannon University, No. 05-1222, slip op. (3rd Circuit filed Sep. 6, 2006).