UPDATE: A “Preposterous” Decision Stands

“Preposterous.” “Absurd.” “Reminiscent of Jim Crow.” That’s what conservative constitutional scholar Bruce Fein*--someone with whom we rarely see eye-to-eye--had to say about a recent Third Circuit decision that essentially tells church workers they have no protections against discrimination.

On October 10, the Associated Press reports, the Third Circuit decided not to rehear the case of Lynette Petruska, a chaplain who claimed that her employer, a Catholic college, discriminated against her because of her gender. As a result, a September decision by a three-judge panel, led by Bush II appointee D. Brooks Smith, remains the law of the Circuit. That panel held that, despite the anti-discrimination mandate of Title VII of the Civil Rights Act of 1964, religious institutions get a free pass to discriminate against ministerial employees for whatever reason they like, even if it has nothing whatsoever to do with religious teachings. This is what Fein deemed “absurd.” He correctly observes that it “invites segregated religious institutions reminiscent of Jim Crow.”

The better course, as we asserted before, would have been to adopt the wisdom of now-deceased Third Circuit Judge Edward Becker. Judge Becker authored the original panel decision in the case. Unfortunately, his decision was vacated (and later replaced by Judge Smith’s decision) because it was issued a few days after he died.

Judge Becker recognized that if a religious institution’s discriminatory employment decision is “unrelated to religion,” Title VII should remain in full force. In other words, a religious institution shouldn’t be free to discriminate, except as compelled by church doctrine. That way, the will of Congress in enacting Title VII will be enforced, and the Constitution’s protections for religious institutions will remain undisturbed. As Judge Becker concluded:

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.

We think that sums it up perfectly.

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

* We don’t agree with what Fein says about limiting the First Amendment rights of individuals; but we wholeheartedly agree with his conclusion that Congress may legitimately restrict the ability of religious institutions to discriminate against workers for reasons unrelated to religious doctrine.