Will the U.S. Supreme Court deal a legal setback to those adovcating for women’s ordination?

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While the media and pundits are focused like lasers upon the U.S. Supreme Court (SCOTUS) oral arguments and decision concerning the so-called “Obamacare” reforms, The Motley Monk is focused like a laser upon a case the SCOTUS has already heard, Hosanna-Tabor Evangelical Lutheran Church and School v. The U.S. Equal Employment Opportunity Commission (597 F.3d 769 (6th Cir. 2010) [2010 BL 49772]).

Argued on October 5, 2011, the case concerns whether the exemption from federal employment discrimination statutes which applies to church employees who perform religious functions also applies to teachers at religious elementary schools.  The courts have generally upheld the former.  But, according to the facts of this case, a teacher at a religious elementary school—who happened to be a commissioned (“called”) minister—suffers from narcolepsy and was fired on February 11, 2005.  School officials deemed that the teacher could not fulfill her contractual responsibilities.

Even though the school’s religious denomination forbids lawsuits among believers—based upon 1 Corinthians 6:1-8—the teacher did so on May 17, 2005.  Filing a charge of discrimination and retaliation with the EEOC, the teacher alleged that the school had discriminated and retaliated against her in violation of her rights under the Americans with Disabilities Act.

Representing the EEOC to SCOTUS, the Assistant to the Solicitor General, Department of Justice Leondara R. Kruger argued that the religious school could not fire the teacher for filing a complaint to the government even if church teaching forbids it.

For The Motley Monk, this principle allows for a very dangerous breach of the wall of separation between Church and State.

For example, consider the case of an unmarried teacher in a Catholic school who was fired for becoming pregnant by artificial insemination and subsequently filed a complaint with the EEOC, arguing that her firing is rooted in gender discrimination.  After all, she asserted in her filing, men who donate sperm are not likely to be fired while for women a pregnancy and baby are difficult to hide.  Should the government be able to require the school to rehire the teacher and provide her restitution for lost wages and emotional pain and suffering endured?

Yes…if the teacher is considered an employee as would any employee in a secular organization.

No…if the teacher is considered an employee in a religious organization which is exempt from federal employment discrimination statutes.

Then, too, what also about Catholic women using this principle to sue the Catholic Church in the United States because they are excluded from the priesthood?  There’s absolutely no doubt that when it comes to ordination, the Catholic Church discriminates in favor of males.  Should SCOTUS be able to tell the Catholic Church in the United States that it must redress the imbalance?

Yes…if, as an organization, the Catholic Church is bound by federal employment discrimination statutes.

No…if, as an organization, the U.S. Catholic Church is exempt from federal employment discrimination statutes.


The transcript of the oral arguments indicates that several SCOTUS Justices were particularly interested in the answer to the question of ordination, including Chief Justice John Roberts as well as Associate Justices Antonin Scalia, Samuel Alito, Elena Kagan, and Stephen Bryer.

In response to the Justices’ questions, Kruger noted that the two situations are different—not categorically, but rather  because “the private and public interests are very different in the two  scenarios.”  Kruger added:

The government’s general interest in eradicating discrimination in the  workplace is simply not sufficient to justify changing the way that the Catholic  Church chooses its priests, based on gender roles that are rooted in religious  doctrine.

But, the government does have a compelling and indeed overriding  interest in ensuring that individuals are not prevented from coming to the  government with information about illegal conduct.

It would seem the Ms. Kruger’s position—arguing on behalf of the Obama administration—is that the government isn’t interested in telling religions groups how to govern themselves internally, unless the issue concerns violations of law.

Who, then, is to decide?  After all, gender discrimination is illegal in the United States and were SCOTUS to affirm the government’s principle, this would set a legal precedent that those seeking women’s ordination in the U.S.Catholic Church could exploit.  Aware of this, Justice Scalia asked Ms. Kruger:

There is nothing in the Constitution that explicitly prohibits the  government from mucking around in a labor organization, but there, black on white in the text of the Constitution are special  protections for religion. And you say that makes no difference?


Kruger’s explained what the government considers

…the core of the ministerial exception as it was originally conceived…which is  that there are certain relationships within a religious community that are so  fundamental, so private and ecclesiastical in nature, that it will take an  extraordinarily compelling governmental interest to (allow) just  interference.


The good news in the Hosanna-Tabor Evangelical Lutheran Church and School case is that the Justices’ questions reveal some grave reservations about the principle being asserted by the Obama administration.  Justice Alito pointed out, in particular, that this distinction between the Lutherans’ lawsuit prohibition on the one hand, and the Catholic Church’s male priesthood on the other, seemed arbitrary which, of course, is itself a violation of substantive due process.


Alert to the problems associated with finding on behalf of the teacher, it may very well be that SCOTUS will decide in favor of the denomination and its school, dealing a legal setback to those who advocate women’s ordination in the Catholic Church.

The Motley Monk has his sights set like a laser on this case.



To learn more about Hosanna-Tabor Evangelical Lutheran Church and School v. The U.S. Equal Employment Opportunity Commission, click on the following links:




To read the transcript of the oral arguments before the SCOTUS, click on the folowing link:

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  1. The Supreme Court can be expected to rule in favour of the original First Amendment principle, neither advance a faith to become the State religion nor block the practice of any religious faith’s expression by citizens. Within reason, child sacriifce might be banned! They tried it with peyote and sacramental wine! One could expect some looney-tunes federal judge or a court like the US ninth federal in CA that decreed that the pledge of allegiance was establishment of religion to decide that lesbians in a “marriage” should be ordained bishops. But that would not fly very long or high until struck down.

  2. well, even if the SCOTUS required women’s ordination by the RCC, it could still not happen. It is a metaphysical impossiblity. The SCOTUS could order dogs to be cats, gravity to cease exerting itself, and any number of impossible things; while it may make it so in the hermetically sealed hyperbaric chamber of the law, it simply would not make so in reality.

  3. c matt: I repeat my opinion that the RCC is protected by the First Aamendment to not have any interference with the stand on ordination of females. But the Court could devise an argument to require it, given that they invented and required a “right” for abortion out of a “liberty.” Choice, rights, equal protection are used for abortion, choice of M with M and F with F for a union comparable to marriage. I trust no one right now there with their “liberty” with the Constitution, and apparently rejecting the given “inalienable” rights clause of the Preamble. If the “Supremes” could justify owning human beings as property and decreeing separate but equal drinking fountains and schools not that long ago, this generation, or the next could easily do an olympic gymnist routine for women’s ordination, aided by those who already favour that within the Church, before the topic has been fully examind and decided by the whole Church as is the usual custom in finalising a dogma. Of course it seems here in the Old Country the Anglican Church is moving toward, or being pushed, by the current Government to ordain female bishops.

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