We have entered the “anything goes” phase of religious exemptions.
As I described last week, newly Republican state legislatures (and Congress, of course) are eager to carve out ever-larger exemptions from civil rights laws and laws governing contraception and abortion. Now they are being written into law.
In the wake of Hobby Lobby, activist lawyers are getting busy too. What are the boundaries of religious exemptions? How much of a “pass” do I get, if I claim a religious justification?
Take the case of Herx v. Diocese of Fort Wayne, an employment discrimination suit in the Seventh Circuit. The local Catholic diocese has appealed this case before it’s even been heard by a jury, arguing that it is completely exempt from employment discrimination law. This is not quite the more audacious argument, reported in other media, that the Church is exempt from the entire judicial process; that remains, so far, beyond the pale. But it is a worrying claim nonetheless, one of many testing the boundaries of this new area of law.
The facts of Herx are straightforward. Emily Herx, a well-regarded English teacher at St. Vincent DePaul School, revealed to her supervisors that she and her husband were pursuing in-vitro fertilization, or IVF, because they were otherwise unable to have children. Within a few months, she was fired from the school for violating its Catholic “morals clause.” Because IVF can involve the destruction of embryos, you see, it’s a sin[JM1] ..
Herx sued, but in an interesting way. Her lawyers knew that the school’s morals clause could not be attacked directly. It is a textbook case of a religious exemption to Title VII’s employment discrimination provisions: a Catholic school enforcing Catholic doctrine against a teacher it believes to be sinful. Until a few years ago, the law was unclear regarding such employees. But in 2012, the Supreme Court ruled unanimously that the “ministerial exemption” to employment law also applied to teachers and others who fulfilled quasi-ministerial functions.
Does that case, Hosanna-Tabor, cover English teachers as well as Bible ones? Welcome to the Wild West—we don’t really know. The boundaries are still being litigated. (And interestingly, according to Herx, she didn’t even know that IVF was against Catholic dogma.) The Diocese argues that Herx was a kind of “minister.” Herx, and the district court, disagreed.
But Herx didn’t attack the morals clause itself; instead, she argued that it was being enforced in a way that discriminated against pregnant women specifically, and women more generally. The morals clause is gender neutral, and Catholic teaching is too: both men and women are prohibited from engaging in IVF. But Herx showed that this “gender-neutral” rule had never been applied against men. Only women like her.
This is a fascinating question. Had Herx said “this dogma is sexist,” that would be well beyond the reach of the courts. Religious doctrine, and a religious organization’s application of it, is protected by the First Amendment. Like it or not, religious reasons for an act are constitutionally different from non-religious ones.
The question in Herx, though, is whether having a religious reason to begin with avoids anti-discrimination law forever. If my religious dogma is that “X is forbidden” but I only apply that dogma against women (or racial minorities, for that matter), am I protected? Or is that discrimination?
Although not at issue in this case, there’s an interesting parallel here to religious teachings that affect gay people. For example, the sin of sodomia, or sodomy, actually applies to heterosexual as well as homosexual acts. That’s right, if you’ve ever enjoyed (or given) what Pulp Fiction’s Fabienne called “oral pleasure,” you’re technically a sodomite.
Yet, one suspects that St. Vincent won’t be firing you for your sin. The fact is, there are facially neutral religious rules that have been unevenly enforced for millennia. Maybe the diocese is right that a court can’t tell it which of its dogmas it should enforce or not—maybe that, itself, is also a religious question.
On the other hand, if the diocese prevails in this case, it could apply Catholic dogma—which, let’s face it, says that almost everything fun is a sin—indiscriminately. Including, of course, using that dogma to discriminate. Don’t like someone’s liberal political values? Well, find a way to connect them to some sin they’ve probably committed, and then you can fire them at will. Courts generally don’t inquire into the sincerity of an individual’s religious beliefs—let alone a Catholic school’s—so you’ve got carte blanche.
In other words, either the application of a religious rule is reviewable, in which case courts get their hands dirty, or it isn’t, in which case religious organizations get off scot-free.
Dirty hands or not, surely Emily Herx is right in this case. If the church is faithfully following its teachings on IVF—which, despite some initial enthusiasm about Pope Francis, look like they’ll be around for the foreseeable future —then it should be enforcing them against men as well as women. If only women are getting fired, the reason is not holy writ.
Even if it rhymes with it.
