In two recent decisions, the U.S. Supreme Court held that the government may not discriminate against private religious schools, but the schools may discriminate against their employees.

Sound troubling? It is. While there is a kernel of logic in each decision, the logic was stretched past the breaking point.

The first case involved a Montana scholarship program that allowed state-subsidized scholarships to be used at private secular schools but not private religious schools. Chief Justice John Roberts, writing for the majority, held that the exclusion of religious schools violated the First Amendments Free Exercise Clause, which he said forbids discrimination against religion.

Here is the kernel of truth in Roberts opinion. There is no doubt that some forms of government discrimination against religion are unconstitutional. For example, the government may not favor one religion over another, such as by giving benefits to Buddhists but not Protestants or Jews. Likewise, the government may not favor secular institutions over religious if the discrimination reflects hostility toward religion. The court would not allow a municipality to provide police, fire and sewer services only to secular institutions and not religious.

Difficulties arise only because there is another religion clause in the First Amendment, the Establishment Clause, which requires separation between church and state. The framers included this clause to help the country avoid the religious strife that engulfed Europe for centuries when religious and political power were aligned. To maintain this separation of church and state, our American tradition has been that churches rely on voluntary support from their adherents, not on taxpayer money. As the Supreme Court famously said in 1947, No tax in any amount, large or small, can be levied to support any religious activities or institutions.

The Montana case fell where the Free Exercise and Establishment Clauses collide. Roberts emphasized the Free Exercise Clause nondiscrimination value, holding that Montana could not exclude religious schools from the scholarship program because the schools were being disqualified solely because of their religious character. Justice Stephen Breyers dissent emphasized the Establishment Clause church/state separation value, arguing that government money should not fund sectarian religious education.

You can decide for yourself whether taxpayer money should be used to teach Catholic students about the existence of the Holy Trinity or Muslim students about the Prophet Muhammads revelations. Even if you think this use of public funds is proper, you might still think Roberts decision is problematic when paired with the Courts second recent religious school decision.

In that case, the question was whether religious school teachers can sue their institutions for discrimination based on race, age, sex or disability. One teacher alleged she was terminated because of her age. Another alleged she was fired because of her disability (she had breast cancer and had requested a leave of absence to obtain treatment). In both instances, the majority of justices said the teachers could not sue the schools for discrimination.

Sound outlandish? Maybe, but here again there is a kernel of logic. Surely everyone would agree that the government may not dictate whom a congregation may hire as its religious leader. For example, even though churches are not exempt from sex discrimination laws, a church is still allowed to discriminate against women when selecting a priest. Indeed, it would be an egregious infringement on church autonomy if government regulated employment decisions about a churchs minister.

In the second religious school case, the court concluded that this same ministerial exception applies to employment decisions about religious schoolteachers. After all, these teachers often act like ministers; they teach religious doctrine and frequently engage in religious rituals. Even a math teacher may be required to convey religious values. Consequently, the court held that these teachers, like ministers, are barred from bringing discrimination claims against their employers. This was true even if the teachers claimed that they were fired because of their age, disability, or race and not because they ineffectively taught calculus, French or the catechism.

Justice Sonia Sotomayor decried the majoritys decision in her written dissent. She said that the majority allowed religious school employers to discriminate because of a persons skin color, age, disability, sex, or any other protected trait so long as the employers claim that the employees duties included carrying out the mission of the church.

Bottom line: Religious schools must not be discriminated against when government benefits are being distributed, but the schools may discriminate against their teachers with impunity.

It is the Golden Rule, just turned on its head: Do unto others what may not be done unto to you.

Alan Garfield is a professor at Widener University Delaware Law School.

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Government cant discriminate against religious schools, but they can discriminate when they hire teachers | - pennlive.com