Early last month The New York Times did a four-part series on the recent trend of legislatures and courts to accord churches and other religious groups the benefit of the doubt when it comes to addressing complaints from current or former employees.
More and more frequently, the courts have been appealing to the so-called religious, or ministerial, exemption, which effectively immunizes churches from any government interference in their internal operations, even if unrelated to faith and morals. These decisions have been based on a broad and exceedingly generous interpretation of the First Amendment to the U.S. Constitution: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. …”
The second installment of the series, “Limiting Workers’ Rights,” published on page one of the Oct. 9 edition, undoubtedly caught the attention of many readers and commentators.
Mary Rosati, a middle-aged novice in a Catholic religious community in Toledo, Ohio, was dismissed from the order after she became seriously ill with breast cancer.
She had visited her doctor in the company of the novice mistress and mother superior. As soon as the doctor communicated the bad news, the legal complaint reads, the mother superior announced that Ms. Rosati would have to be expelled from the community because it would not be able to take care of her. A few months later a formal decision was rendered by the order’s governing council, mandating her dismissal because “she was not called to our way of life.”
Mary Rosati not only lost her opportunity to pursue the possibility of a vocation to religious life, she also lost her health insurance. The Times noted that, had she been employed by a secular firm, she might have prevailed under the protection of the Americans With Disabilities Act.
Instead her complaint was dismissed by the U.S. District Court for northern Ohio on the grounds that her expulsion from her religious community “was an ecclesiastical decision” and was “beyond the reach of the court,” given the guarantees afforded churches and other religious bodies by the First Amendment.
As disturbing as the Rosati case is, it has far more limited implications than another case reported in the same article. It involves the complaint of a former nun, many of whom are, or have been, employed by parishes, dioceses and educational institutions operated by the Catholic Church.
Lynette Petruska had filed a complaint against Gannon University, a Catholic institution in Erie, Pa., where she served for three years as its first female chaplain. According to her formal complaint, she was later demoted and effectively forced out. She charges that this action was in response to her bringing a case of sexual misconduct on the part of a senior university official to the attention of the school’s administration.
Ms. Petruska (again according to her complaint) refused to participate in a cover-up of the misconduct and also opposed efforts to weaken campus policy on sexual harassment. In 2004 she sued the university on grounds of gender bias and retaliation by university officials.
The U.S District Court for western Pennsylvania ruled that Gannon University was protected from legal action by the First Amendment and the ministerial exception. Although the university claimed that Ms. Petruska had resigned for other reasons, its central argument in its response to her complaint was on First Amendment grounds — the separation of church and state.
Earlier this year, however, a federal appeals court reversed the trial judge’s decision, declaring that “employment discrimination unconnected to religious belief, religious doctrine, or the internal regulations of a church is simply the exercise of intolerance, not the free exercise of religion.”
Unfortunately, the judge who wrote that opinion died just a few days later. In a rare move, the Third Circuit court granted Gannon’s request to have the case reconsidered and named the judge who had vigorously dissented from the earlier decision in Ms. Petruska’s favor to a new three-member panel. In early September, the panel reversed the previous decision and ruled for the university on the basis of a ministerial exception.
Ms. Petruska, who has returned to her old law firm in Missouri, believes that the case needs to be decided by the U.S. Supreme Court. While one hopes that she gets her wish, it is highly unlikely that the Supreme Court would hear her case, given the thousands submitted each year, and almost as unlikely that it would rule in her favor, given the present composition of the court, with five conservative Catholic justices.
Meanwhile, the evidence is mounting that the church continues to seek refuge behind the First Amendment rather than practice “a faith that does justice.”
Father McBrien is a professor of theology at the University of Notre Dame.