Janitors, Catholic schoolteachers and the Hosanna exception

A few years back, a less endearing janitor than Archie’s Mr. Svenson got fired from his job at a synagogue. Not only was he not waxing half the floors, he was doing a lousy job of constructing the annual succot tent. He sued for wrongful termination.

The synagogue invoked the “ministerial exception,” a First Amendment protection against “excessive entanglement” by the government in the affairs of religious groups. The Free Exercise and Anti-Establishment Clauses were, as you remember, a pushback against the Uniformity Act of 1559, when Henry VIII decided that religion is a matter for state control like liquor licensing.  And if you think that notion went out with the hose and doublet, look at the Chinese government ordering the Dalai Lama to reincarnate in compliance with its “Measures on the Management of the Reincarnation of Living Buddhas.”

The Supreme Court unanimously affirmed the hands-off principle in Hosanna-Tabernacle Evangelical Lutheran Church (2012), where a teacher-minister claimed she’d been fired in retaliation for threatening to file a lawsuit under the Americans With Disabilities Act. The Court held that religious groups have the right to choose their own ministers without state interference.

In other words, if you’re doing ministerial work in a religious organization, you can’t sue them in a secular court, whether you’re an imam fired for “un-Islamic conduct,” a mashgiach (kosher supervisor) trying to collect overtime pay, or a Chicago church organist alleging anti-Polish discrimination.

The janitor, strangely, didn’t come under the ministerial exception, but he lost anyway.

Last week the Supremes heard oral argument involving Catholic schools that had invoked the ministerial exception to defend their firing of two 5th grade teachers. One was Ms. Morrissey-Berru who just couldn’t get with the program imposed by the New Broom administrator and claimed age discrimination. The other was Ms. Biel who had to take time off for cancer treatments and eventually died. Well, whose side would you take? To the lady Justices, it was a no-brainer.

Justice Ginsburg was outraged that “these people [the Catholic schools] are exempt from all anti-discrimination laws.” What if a teacher were fired for reporting sexual harassment by a priest?  she demanded. What if a teacher were fired for reporting that “Sister Mary Margaret [the school principal in Biel, supra] had been stealing from the school, from the school’s till regularly, to pay for her gambling excursions to Las Vegas?”

Can you imagine a Supreme Court justice asking hypotheticals like that for any other religion? Suppose these teachers had been bringing suit against a Muslim school. Would Justice Ginsburg have asked, “What if a teacher were fired for reporting terrorist activities by the Imam? Or if bringing suit against a Yeshiva, would she have asked, “What if the rabbi had been regularly kidnapping Christian babies for sacrifice?”

And assuming without deciding that Sister Mary Margaret was wrong not to renew Ms. Biel’s contract, is that any reason to suggest that she’s gambling away the school’s funds in Las Vegas? Is there a basis in the record? Is it relevant to the Hosanna exception? What would Henry VIII say?

Good thing old Mr. Svenson works in a public high school. They’ll never dare fire him for waxing only half the floor.