Where Faith Abides, Employees Have Few Rights

Nicole Bengiveno/The New York Times

Mary Rosati, a novice training to be a Roman Catholic nun, was
dismissed by her order after she was found to have cancer.

Published: October 9, 2006

J. Jeffrey Heck, a lawyer in Mansfield, Ohio, usually
sits on management’s side of the table. “The only employee cases I take
are those that poke my buttons,” he said. “And this one really did.”

Articles in this four-part series examine how
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organizations benefit from an increasingly accommodating government.Enlarge
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Fred R. Conrad/The New York Times

The Rev. John Paul Hankins, 73, was forced to retire from the pulpit of
his Stony Brook, N.Y., church. He alleges age discrimination in a
lawsuit, but judges will almost never agree to hear such complaints by
clergy members against a religious employer.

His client was a middle-aged
novice training to become a nun in a Roman Catholic religious order in
Toledo. She said she had been dismissed by the order after she became
seriously ill — including a diagnosis of breast cancer.

In her
complaint, the novice, Mary Rosati, said she had visited her doctor
with her immediate supervisor and the mother superior. After the doctor
explained her treatment options for breast cancer, the complaint
continued, the mother superior announced: “We will have to let her go.
I don’t think we can take care of her.”

Some months later Ms.
Rosati was told that the mother superior and the order’s governing
council had decided to dismiss her after concluding that “she was not
called to our way of life,” according to the complaint. Along with her
occupation and her home, she lost her health insurance, Mr. Heck said.
Ms. Rosati, who still lacks health insurance but whose cancer is in
remission, said she preferred not to discuss her experience because of
her continuing love for the church.

In court filings, lawyers
for the diocese denied her account of these events. If Ms. Rosati had
worked for a business or almost any secular employer, she might have
prevailed under the protections of the Americans With Disabilities Act.
Instead, her complaint was dismissed in December 2002 by Judge James G.
Carr of the United States District Court for the Northern District of
Ohio, who decided that the order’s decision to dismiss her “was an
ecclesiastical decision” that was “beyond the reach of the court”
because “the First Amendment requires churches to be free from
government interference in matters of church governance and

Legislators and regulators are not the only
people in government who have drafted special rules for religious
organizations. Judges, too, have carved out or preserved safe havens
that shield religious employers of all faiths from most employee
lawsuits, from laws protecting pensions and providing unemployment
benefits, and from laws that give employees the right to form unions to
negotiate with their employers.

Some of these exemptions are
rooted in long traditions, while others have grown from court decisions
over the last 15 years. Together, they are expanding the ability of
religious organizations — especially religious schools — to manage
their affairs with less interference from the government and their own

The most sweeping of these judicial protections, and
the one that confronted the novice nun in Toledo, is called the
ministerial exception. Judges have been applying this exception,
sometimes called the church autonomy doctrine, to religious employment
disputes for more than 100 years.

As a rule, state and federal
judges will handle any lawsuit that is filed in the right place in an
appropriate, timely manner. But judges will almost never agree to hear
a controversy that would require them to delve into the doctrines,
governance, discipline or hiring preferences of any religious faith.
Citing the protections of the First Amendment, they have ruled with
great consistency that congregations cannot fully express their faith
and exercise their religious freedom unless they are free to select
their own spiritual leaders without any interference from government
agencies or second-guessing by the courts.

To do otherwise
would be an intolerable government intrusion into employment
relationships that courts have called “the lifeblood” of religious life
and the bedrock of religious liberty, explained Edward R. McNicholas,
co-chairman of the national religious institutions practice in the
Washington, D.C., office of Sidley Austin, a law firm with some of the
country’s largest religious organizations among its clients.

have routinely invoked the ministerial exception to dismiss lawsuits
against religious employers by rabbis, ministers, cantors, nuns and
priests — those “whose ministry is a core expression of religious
belief for that congregation,” as Mr. McNicholas put it.

judges also have applied the exception to dismiss cases filed by the
press secretary at a Roman Catholic church, a writer for The Christian
Science Monitor, administrators at religious colleges, the disgruntled
beneficiaries of a Lutheran pension fund, the overseer of the kosher
kitchen at a Jewish nursing home and a co-founder of Focus on the
Family, run by the conservative religious leader James C. Dobson. Court
files show that some of these people were surprised to learn that their
work had been considered a “core expression of religious belief” by
their employer.

Religious employers have long been shielded from all complaints of
religious discrimination by an exemption that was built into the Civil
Rights Act of 1964 and expanded in 1972. That historic exemption allows
them to give preference in hiring to candidates who share their faith.
In recent years, some judges have also refused to interfere when
religious groups have dismissed lesbians, unwed mothers and adulterous
couples, even if they profess the same faith, because they have
violated their employers’ religious codes.

Jamie Rector for The New York Times

Lynette Petruska says she was forced out as chaplain at Gannon
University, a Catholic college in Erie, Pa., because she is a woman.
But religious employers have generally been shielded from such claims.

Articles in this four-part series examine how
American religious
organizations benefit from an increasingly accommodating government.Enlarge
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Rick Scibelli Jr. for The New York Times

Rabbi Isaac Celnik was told he had Parkinson’s disease a decade ago;
four years later, his wife, Peggy, learned she had breast cancer. He
was dismissed when negotiations for his retirement failed. Rabbi Celnik
sued, but his case was rejected under the doctrine of church autonomy.

A federal court decision
has given religious broadcasters an exemption from some of the
fair-hiring requirements of the Federal
Communications Commission
, even when they are hiring secretaries
and receptionists. Two other decisions, one in federal court affecting a Mormon church
and the other in a state court of appeals case involving a
Roman Catholic nursing home
, affirmed the right of religious
employers to dismiss employees whose faith changed after they were

are very difficult cases because they pull at some very fundamental
heartstrings,” said Steven C. Sheinberg, a lawyer at Outten &
Golden, specializing in employment law. “There’s our belief that
employees should be free of discrimination in their work, versus our
belief that religious organizations should be free to hire people who
best help them fulfill their religious mission, without the intrusion
of government.”

Employees at religious institutions face other
risks as well, thanks to pension law exemptions granted by Congress and
upheld by the courts. Religious employers are exempt from Erisa, the
federal pension law that establishes disclosure requirements and
conflict-of-interest restrictions for employee pension plans. That
exemption has given rise to several cases in which workers at religious
hospitals found that their pensions had vanished because of practices
that would not have been allowed under Erisa’s rules.

A related exemption frees religious employers from participating in
the Pension Benefit Guaranty Corporation,
the government-run insurance program that provides a safety net for
corporate pension plans. And some significant court decisions in labor
disputes in the last several years have made it easier for religious
schools and colleges to resist collective bargaining efforts.

But for Mr. Heck, the question of whether these workplace exemptions
are fair to religious employees was crystallized by the case of Ms. Rosati, the novice nun
in Toledo.

He said the doctor involved in her case had been prepared to testify
under oath on Ms. Rosati’s behalf. The doctor “had quite a vivid memory
about these events.” In fact, Mr. Heck said, the doctor had cautioned
the nuns who accompanied Ms. Rosati that it would be virtually
impossible for the ailing novice to get affordable insurance anywhere
else if she were dropped from the diocesan health.

Lawyers for
the diocese disputed Ms. Rosati’s account of that visit and denied that
health reasons were the causes of her rejection by the order, the
Sisters of the Visitation of Holy Mary, which is covered by the
diocesan health plan. For the court “to even begin to inquire into that
decision-making process, we believe, crosses the line set by the First
Amendment,” said Gregory T. Lodge, a lawyer for both the Toledo diocese
and the order, which operates under papal authority.

understand and absolutely appreciate that in matters of religion, the
state has no business meddling,” Mr. Heck said. “It would be
unthinkable for a judge to be able to say, ‘Hey, I don’t like the way
you’re interpreting the Book of Luke.’ ”

But what religious
principle is offended when an employee simply grows old or becomes ill,
he asked. If the answer is “none,” he continued, judges should be more
willing to “look behind the curtain.”

Exemptions From Employee Suits

28 days last May, Lynette M. Petruska, a former nun who now lives in
St. Louis, thought she had finally found judges willing to listen to
her complaint against Gannon University, a coeducational Catholic
college in downtown Erie, Pa. As it turned out, she was wrong.

Petruska was educated in Catholic schools from kindergarten to college
commencement, graduated at the top of her law school class and
practiced law for several years before deciding to become a nun. In
1999, as she was working toward taking her final vows, she became the
first woman to serve as Gannon’s chaplain.

Three years later she
was demoted and, according to her complaint, effectively forced out. In
her lawsuit, she said this action was in response to her having
notified the administration of a case of sexual misconduct by a senior
university official, resisted efforts to cover up that case and opposed
proposals to weaken campus policies on sexual harassment. In 2004, she
sued, accusing the university administration of forcing her out simply
because she was a woman and because she had opposed the sexual
harassment others experienced on campus.

Gender bias claims against religious employers have generally been
dismissed under the ministerial exception. But some judges across the
country have been less quick to dismiss cases where sexual harassment
or abuse of an employee is involved. And unlike many other plaintiffs,
Ms. Petruska claimed that her supervisor had actually acknowledged to
her that she was being demoted solely because of her sex, not because
of any religious doctrine.

Articles in this four-part series examine how
American religious
organizations benefit from an increasingly accommodating government.

Judge Sean J. McLaughlin of
the United States District Court for the Western District of
Pennsylvania nevertheless ruled that Gannon was protected by the First
Amendment and the ministerial exception from any court interference in
its choice of chaplain. Gannon itself argued that it had many women in
leadership positions and that Ms. Petruska had resigned simply because
she was unhappy with a staff reorganization. But its fundamental
argument was that it would be unconstitutional for the court to
second-guess these disputed decisions.

“You may ask, ‘Why should
these decisions go unquestioned?’ The reason is plain and simple: The
First Amendment protects a church’s right to freely exercise its
religion,” said Evan C. Rudert, a lawyer for the university. “And that
includes organizing itself as it chooses and selecting those who it
believes will serve best as its leaders — without interference from the

Then, last May, in a decision that caused considerable
comment in legal circles around the country, a federal appeals court
panel reversed the trial judge’s

four weeks, the prevailing law in Pennsylvania, New Jersey, Delaware
and the Virgin Islands — the jurisdiction of the United States Court of
Appeals for the Third Circuit — was 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.”

Appellate Judge Edward R. Becker
wrote that opinion; his colleague on the three-judge panel, Judge D.
Brooks Smith, filed a stinging dissent. A few days later, Judge Becker
died. On June 20, in a rare move, the Third Circuit granted Gannon’s
routine request to have the case reconsidered and named Judge Smith to
the new three-judge panel that would do so.

On Sept. 6, the new panel swept the earlier decision away,
unequivocally restoring the protections for religious employers that it
had put in doubt. As Judge Smith put it, the ministerial exception
“applies to any claim, the resolution of which would limit a religious
institution’s right to choose who will perform particular spiritual

Ms. Petruska, who has left her order and returned
home to work at her old law firm, describes herself as a feminist who
is “committed to peace and freedom.” She has a long history of putting
her words into action — she has been arrested at protest marches, most
recently at an antiwar rally the day before the Iraq war began, she
said. She plans to appeal the ruling against her.

“I think this
issue needs to be decided by the Supreme Court,” she said. And she has
hopes that the justices will agree with Judge Becker that, absent some
grounding in religious doctrine, sex discrimination by religious
employers is wrong.

No Recourse On Age Bias

Add age discrimination to that wish list, the Rev. John Paul Hankins

73, Mr. Hankins can look back on 50 years in a loving marriage, 40
years as a minister in the United Methodist Church — and 3 years as the
plaintiff in an uphill court fight over his denomination’s mandatory
retirement policy.

Eight months after he turned 70, that policy
forced Mr. Hankins to leave his pulpit in the historic Stony Brook
Community Church in Stony Brook, N.Y., where he had served for 37
years. He loved his flock and the feeling was mutual: the congregation
withheld part of its annual contribution to the regional church that
year to express its dismay.

“He had served for many, many years
and wanted to continue to serve, and his congregation wanted that,
too,” said David S. Warren, a professor of computer science at Stony
Brook University
who had been a member of the congregation for more
than 25 years but who left because of how Mr. Hankins was treated.

Hankins said he was suing because age discrimination is almost as
hateful and senseless to him as the racial segregation and bias against
women that used to be “mandatory policies” of his church.

“I feel, and have long felt, that discrimination in any form has no
place in the life of a faith community,” he said.

Under the federal age discrimination law, most employees of all but
the smallest businesses can sue if they are forced to retire for no
other reason than that they reached a certain birthday; increasingly,
government and academic employees have the same protection. But Mr.
Hankins knows his complaint will probably never come to trial simply
because he is a clergy member trying to sue his church. Indeed, court
rulings around the country suggest that if he had been forced out at
any age and for almost any reason — for a deceptive reason, or even for
no reason at all — he would face the same judicial roadblock.

Articles in this four-part series examine how
American religious
organizations benefit from an increasingly accommodating government.

“I never, ever thought that the last years of my ministry would be
involved in a fight like this,” Mr. Hankins said.

H. McGaughey, the lawyer for the regional Methodist governing body and
its bishop, acknowledged that there is a movement in the church to
eliminate the retirement rule opposed by Rev. Hankins. But if the rule
is ultimately changed, it should be the church’s decision, not a
court’s, he said.

“Any private employer would feel the same way —
they’d like to be able to make these decisions without having to face
the courts,” Mr. McGaughey said. “But the difference is the First

He continued: “We’re talking about worship here. Are
you going to go into church and have someone standing there who was
ordered to be there by the courts? There are certain things a
government just cannot do in this country.”

In September 2003, a
federal trial judge on Long Island ruled that Mr. Hankins’s complaint
was barred by the ministerial exception. Last February, a federal appeals court
panel sent the case back
directing the trial judge to decide the case by applying a 1993 federal
law, the Religious Freedom Restoration Act, rather than the ministerial
exception doctrine. But there was little in the instructions to the
trial court to encourage Mr. Hankins.

He nevertheless thinks his complaint will eventually help his church
see that its mandatory retirement rule is unfair.

don’t need to win the case,” Mr. Hankins said. “I feel the movement of
history at work here, I really do. Ideas find their feet, and start to

State judges have been equally reluctant to interfere in
disputes between religious employers and their staff members — to the
sad frustration of Rabbi Isaac H. Celnik of Albuquerque.

Celnik, one of the youngest men ever ordained in Conservative Judaism,
was just 30 when he was hired in 1971 as the spiritual leader of
Congregation B’nai Israel. Eight years later, he entered into a 30-year
contract with the synagogue, an arrangement his congregation endorsed
by a margin of almost nine to one, he said.

Then the medical
problems began. In 1996, Rabbi Celnik was told he was in the early
stages of Parkinson’s disease; in April 2000, his wife, Peggy, was told
she had breast cancer. In October 2000, he said, the president of the
congregation’s governing board at the time suggested he retire on

But the rabbi did not consider himself disabled and
did not want to retire, he said. He had two young children and a wife
whose treatment required continuing health insurance. He “loved the
work, and loved the congregation,” he said. Indeed, when the
synagogue’s cantor resigned a month after the retirement discussion,
Rabbi Celnik proposed, and the board agreed, that he would take on the
cantor’s duties as well, he said.

But the relationship
deteriorated as he tried to negotiate retirement terms that would
provide him and his family with adequate financial security. In January
2002, after those negotiations faltered, he was dismissed; in 2003, he
sued. But last February, the state’s court of appeals dismissed
his case
, based on the ministerial exception, also called the
church autonomy doctrine.

are sympathetic to Rabbi Celnik’s struggles with Parkinson’s and the
manifestation of the disease after so many years of service,” the chief
judge wrote. But he ruled that the dispute “is precisely the type of
religious debate that the church autonomy doctrine is intended to
protect from judicial review.”

The congregation’s current
president, Alan M. Chodorow, declined to discuss the details of the
dispute. “I do not want to talk about anything that might impair our
search for reconciliation and forgiveness” with Rabbi Celnik, he said.
“But I will say that we believe strongly in the separation of church
and state, and that the state should not have any part in choosing our
spiritual leaders.”

But Mr. Chodorow said that he was sympathetic
to the situation that this freedom for congregations created for
employees and that he believed that religious institutions have to
provide other protections by contract. Although clergy members in many
faiths work without formal contracts, the model contract in wide use
within Conservative Judaism provides that rabbis and cantors can
terminate the agreement without cause and seek binding arbitration to
resolve disputes, he said.

The church autonomy doctrine “takes
away certain rights and this is put in specifically for the purpose of
preserving rights,” Mr. Chodorow said.

Rabbi Celnik and his wife continue to struggle with the financial
and physical burdens of his deteriorating health and her second episode
of cancer. “They don’t teach this in rabbinical school,” the rabbi said
in a recent interview. Teach what? Mrs. Celnik answered before he
could: “Don’t get old. Don’t get sick.”

Mr. McNicholas, the Sidley
Austin lawyer, acknowledged that some “unjust and sinful” treatment has
been protected from litigation by the ministerial exception. But he
argued that “the openness of the religious process” would remedy those
situations, making it possible for a clergy member dismissed by one
congregation to find a home in another.

But what if they are
sick? “That’s harder — and very troubling,” Mr. McNicholas said. “But
if you have a judge deciding it, that’s just too much intervention in
the process of deciding the hiring issues” at religious institutions.
“There’s no easy answer.”

Protections Against Unionization

The University
of Great Falls
in Montana, has a tidy urban campus, a bold crucifix-topped chapel, a
master’s program in criminal justice and, according to one student’s
Internet posting, a cafeteria that serves pretty good spaghetti.

What the small Roman Catholic college doesn’t have is a faculty

wasn’t for lack of trying. In 1995, the Montana Federation of Teachers,
which had unionized most of the public universities in Montana, asked
the National
Labor Relations Board
to recognize it as the collective bargaining
agent for the teaching staff at Great Falls.

of the faculty members there traveled in circles that included
professors at the other schools,” recalled James McGarvey, who was
president of the Montana Federation of Teachers at the time. (It has
since merged with the Montana Education Association.) Teachers at those
other campuses had better pay and more favorable work rules, and some
professors at Great Falls had expressed interest in seeing whether the
federation could help them as well, according to Mr. McGarvey. “We felt
we had a pretty strong showing,” he said.

J. C. Weingartner, a
union lawyer who worked on the campaign, said that while “pay did come
into it, it wasn’t what got it started.” That spark was discontent
among some professors over the president’s appointing members to an
important advisory council who “did not reflect the views of the
majority of the faculty” in negotiations with the administration, he
said. “So they felt their interests would be better served with
collective bargaining.”

The university, which has a new management team today, declined to
comment on the long legal battle.

when the labor board held a hearing on the union’s request, the
university’s lawyers argued that the board had no jurisdiction because
the university was a religious institution, and to force it to
negotiate with the union would violate its religious liberty.

The university based its case largely on a 1979 decision in which
the United States
Supreme Court

ruled that the labor board’s jurisdiction did not extend to religious
schools. After that decision, which resulted in what is called the Catholic Bishop
the board began case-by-case examinations to determine whether the
schools that came before it were sufficiently religious — whatever
their faith — to be exempt from its jurisdiction.

The University of Great Falls did not qualify, the board concluded
in February 1996.

the next seven years, the little Catholic college fought both the
federal labor board and the faculty union, keeping lots of lawyers busy
and incurring official charges of unfair labor
in the process. In 2002, it won.

The federal appeals
court panel in Washington

ruled that a three-prong test should be the labor board’s only standard
for determining which schools were religious enough to be exempt from
the nation’s collective bargaining laws under the Catholic Bishop

Any school that is nonprofit, has a religious
affiliation and presents itself to the public as a religious
institution must be exempted from jurisdiction, the court said. And
that included the University of Great Falls.

And the court ruled
that the labor board’s old case-by-case approach had to stop
immediately. For the board even to conduct such inquiries raised
serious issues of religious freedom, the judges said.

Of course,
some casually faithful or broadly tolerant schools that might
previously have failed to win a labor board exemption would easily pass
the court’s new test.

The appellate judges anticipated that
complaint, and dismissed it. “If the university is ecumenical and
open-minded, that does not make it any less religious, nor N.L.R.B.
interference any less a potential infringement of religious liberty,”
they said.

David Strom, general counsel of the American
Federation of Teachers

in Washington, doesn’t mince words about the impact of the Great Falls
decision. “It means that the difficulty of organizing a religiously
affiliated college has become enormous.”

Although federal statistics show that one of every seven colleges in
the country describes itself as a religious institution, it is not
clear how far-reaching the Great Falls decision will be. On its face,
it would seem likely to reduce any union-driven salary pressures on
exempt religious schools, allowing them to maintain more competitive
tuition levels. However, some colleges that might be eligible for an
exemption under the new rules may already have collective bargaining in
place or may not oppose unions as fiercely as the Montana university

Articles in this four-part series examine how American religious
organizations benefit from an increasingly accommodating government.

And the decision limits only
the protections of the National Labor Relations Act. But last fall, in
a case involving teachers at Catholic schools in Boston, a federal
district judge in Massachusetts ruled that part of another federal
labor statute called the Taft-Hartley Act could not be applied to
church-operated schools without raising First Amendment issues.

the protracted battle in Great Falls, Catholic institutions are not
doctrinally opposed to collective bargaining, said Julie N. Secviar,
senior vice president for strategic resources for the Franciscan
Sisters of Chicago Service Corporation, which manages Catholic
hospitals, nursing homes and retirement communities.

In fact, the ethical health care directives of the United
States Conference of Catholic Bishops
require “recognition of the
rights of employees to organize and bargain collectively without
prejudice to the common good.”

Next, Exemptions for Hospitals?

the other end of the spectrum stand the Seventh Day Adventists, a
Christian denomination with more than 14 million members worldwide.
Like many denominations, it provides global humanitarian relief and
maintains a large network of church schools and colleges, including
Loma Linda University in California. But it also operates the largest
Protestant nonprofit health care system in the country, with 38
hospitals in 10 states, 23 nursing homes and 44,000 employees.

not one of those employees is in a union, for a very simple reason: The
church believes that collective bargaining “defies Christ’s admonitions
that behavior must be directed by individual conscience” and “is
inherently disruptive” of the church’s healing mission, as lawyers for
the denomination first explained to the national labor board in 1998.

lawyers were responding to a petition by the California Nurses
Association to represent the nonsupervisory nurses employed at Ukiah
Valley Medical Center.

As in the Great Falls case, the lawyers
argued that the labor board had no jurisdiction because the hospital
was a religious institution and to force it to recognize or bargain
with a union would violate its freedom under the First Amendment and
the Religious Freedom Restoration Act.

As in the Great Falls case, the labor board ruled otherwise.
The next step should have been union balloting, explained Jeffrey A.
Berman, the Sidley Austin lawyer who represented the hospital in the
case. But the nursing association withdrew its petition and the case
ended, he said.

According to the American Hospital Association,
about one of every four of its members has a religious affiliation. But
the Adventists’ problem before the labor board was that hospitals,
unlike religious schools, were specifically included in the board’s
jurisdiction by Congress. The only labor-law accommodation that
Adventists have been able to win from Congress was a provision in 1974
allowing church members to pay the equivalent of their union dues to
one of several agreed-upon secular charities, according to Mr. Berman.

hospitals are still waiting for their own Great Falls moment. As Mr.
Berman put it, “We’re not asking for carte blanche, for the ability to
be exempt from all laws — just with respect to what is unique about
these hospitals.”

Andrew Lehren conducted computer analysis for this series, and Donna
Anderson provided online research assistance.


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