[blindlaw] The ADA in churches

[Bill Reif]

Perhaps there needs to be a registry or web site listing those churches 
and denominations that discriminate against their "ministers" based on 
racism, sexism, actual or perceived disability, or sexual orientation. 
Society has an interest in the proper education of bigotry-free children 
and funds such education through tax-supported vouchers, aid to parents, 
or government contracts. Some municipalities offer things such as free 
water and other utilities, free or reduced-cost meeting space, free 
police protection at large events and the ability to serve alcohol, and 
other privileges they aren't required to offer all comers. Private 
donors and foundations also have an interest in the character, biases, 
and practices of those they choose to fund. Such a registry or web site 
could be a valuable first stop for those about to support those who 
mistreat their ministers on those bases. The leadership of the 
rapidly-shrinking flocks will remain free to act out their prejudices 
within the ministerial exception.

Cordially,
Bill

On 9/4/2012 12:56 PM, Elizabeth Rene wrote:
> Dear RJ and list,
>
> I can answer this question, because I lived the reality of its impact 
> for more than a decade, and, unlike most candidates for ordained 
> ministry, had a legal lens through which to monitor the process.
>
> The ADA does not apply to churches and church discipline, though many 
> religious groups adopt the ADA's principles, in spirit, in relation to 
> their parishioners and guests.
>
> A January 2012 unanimous decision of the United States Supreme Court, 
> Hosanna-Tabor Evangelical Lutheran Church & School V. Equal Employment 
> Opportunity Commission et al, (I'll get the cite later) upheld the 
> "ministerial exception" to the ADA on First Amendment Free Exercise 
> and Establishment Clause grounds to bar "ministers" from suing their 
> churches for employment discrimination.  There's INTERESTING 
> commentary on the decision at SCOTUSBLOG.com.
>
> The "ministerial exception" originated with the Civil Rights Act of 
> 1964, and was incorporated by reference into the ADA by the courts.  A 
> long time ago, before I left for seminary, I reviewed the 
> Congressional Record for debates on the ADA and found that several 
> church denominations, including mine, lobbied for omission from ADA 
> coverage.
>
> Several US Circuit Courts have ruled on this issue, with plaintiff 
> allegations ranging from sexual harassment to discrimination in 
> clinical pastoral education, and all but one have held for the 
> churches.  Some have held that the courts have no jurisdiction at all; 
> others, like the Ninth Circuit, have ruled that churches must raise 
> their jurisdictional issue as an affirmative defense (whereupon the 
> court could determine whether the specific facts--in this case an 
> allegation of sexual harassment--warranted judicial review.
>
> Justice Roberts, for the Supreme Court, wrote that his decision should 
> be construed narrowly, and that several issues remained to be 
> resolved.  The legal questions here form a fascinating and intricately 
> woven tapestry that we of the NFB should closely examine and shake out 
> together.  I can tell you that the ministerial exception can have a 
> broad impact upon one's personal life, and upon the spiritual life of 
> any faith's congregations.
>
> But don't lose heart, RJ.  As I understand things, as a Southern 
> Baptist, you can evangelize one congregation at a time, because of 
> your church's form of governance, and aren't tied to a bishop or 
> diocese.  One congregation might discriminate against you, another 
> might embrace you for the very same reasons.  In this case, you might 
> happily and successfully follow the advice given centuries ago to some 
> of the first pastors out there:  If one town doesn't want you, shake 
> its dust from your feet and move on.  Someone else will.
>
> There are blind clergy, who have fulfilling lives and are ministering 
> effectively.  But not without sacrifice.
>
> Elizabeth
>
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