July 22, 2009

Gableman benefits from loopholes

Observes Cory Liebmann through his Eye on Wisconsin.

Speaking of loopholes, Gableman decided yesterday that an Onalaska, Wisconsin school's firing of a veteran 53-year-old teacher and replacing her with one eighteen years her junior is an employment practice protected as a "free exercise of religion," and that the dismissed teacher is therefore precluded from pursuing any further her age discrimination claim against the former employer.

In reversing the court of appeals, the circuit court, and several State administrative bodies, Gableman accomplished his result by selecting among precedent in other jurisdictions and retooling the legal test — or "legislating from the bench," as some might have it — against which similar claims are to be measured in future in Wisconsin.

A considerable portion of Gableman's opinion is necessarily devoted to illuminating the ethical instructions of one Jesus Christ in the context of Roman Catholic doctrine in order to ascertain whether the terminated teacher's duties were such that they qualified for an "ecclesiastical exception" — as Justice N. Patrick Crooks in dissent describes it — to Wisconsin's employment discrimination statutes.

The apparent corollary is that the Church may fire priests in many circumstances without running afoul of Wisconsin employment law.

Gableman himself is currently under investigation by the Wisconsin Judicial Commission — a secular, Earth-bound entity — for ethics violations perpetrated during an election campaign last year.

Gableman stands accused by the Commission of lying — that's the Commission's word — about his opponent to gain political advantage.

A notable conservative observer, former Wisconsin Supreme Court Justice and now-Seventh Circuit Judge Diane S. Sykes, characterized Gableman's teevee commercial at the heart of the Commission's investigation as a "particularly base and deceptive attack ad."

But Gableman told reporters he was "proud" of the campaign he'd run.


Display Name said...

Skip ahead, brother. Money quote from the dissent: "Finally, the majority's conclusion that, based on the facts here, CCS infuses its secular subjects with religion effectively extends a free pass to religious schools to violate nondiscrimination laws with regard to their lay employees; moreover, it undoubtedly threatens this court's decision in Jackson v. Benson and, consequently, the continued viability of the Milwaukee school choice program."

illusory tenant said...

Yes, and there's a strong implication in the majority's opinion that Ms. Ostlund to some extent made her own bed by taking much of that infusion onto her own shoulders.

Anonymous said...

It's difficult to see how the outcome of this case could be different. I think you would certainly agree that CCS has a right to discriminate by choosing to require that all its teachers be practicing Catholics (CCS apparently did not require that its teachers be Catholic). Therefore, CCS could terminate a teacher who decides to drop out of the Catholic Church, and the teacher could not file any discrimination action against CCS. The difference in this case, however, is that the age discrimination claim has no apparent connection to religous freedom. But, if you allow the state to review CCS personnel decisions for age discrimination, then where does it stop? Do you allow review of sex discrimination claims? What about race? However deplorable it is, I am sure that there are some people (the very fringe of religious extremism) in this country who honestly belive bigotry and racism is part of their religion. So, what do you do in that situation? I don't know the answers, but I look at the facts of the case and it's hard to agree with the dissent that this lady's daily activities were not cloaked in religion.

illusory tenant said...

Right, it seems as though she took it upon herself to expand her pastoral role well beyond the baseline job requirements.

What's ironic is that it's not possible for a woman to hold a "ministerial" position within the Catholic Church. That may be why Crooks preferred to use the term "ecclesiastical" (Jocz v. LIRC allows for either).

Had there been a "priestly" exception, she may have been allowed to continue with her claim.

Rick Esenberg said...


I know its not your thing, but I don't think its fair to say that women cannot hold ministerial positions in the Catholic Church. In fact, at most Catholic parishes, I think you'd find that most of the ministerial positions are held by women. What they can't be are priests but priests are not the only persons in paid ministerial positions.

illusory tenant said...

Depends on what's meant by ministerial, doesn't it.

While there's no such thing as a Roman Catholic "Minister" — at least, it's not an expression that's encouraged — there are plenty of Anglican and Presbyterian ones. The duties, responsibilities, and powers of the latter do not vary by gender.

And yes, I understand that "ministerial" in the present legal sense is far more encompassing than the literal term from which it's derived.

And the Supreme Court just made it markedly broader.

"I know it's not your thing ..."

I have no idea what this means.