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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, March 7, 2007

Wall Street Journal Weighs in on Nemecek case

The Wall Street Journal published an article about Julie Nemecek's case yesterday, about which I have previously blogged at http://jweissdiary.blogspot.com/2007/02/university-firing-transgender-prof.html. I'm glad they did, but I feel that they portrayed the legal issues in a slightly misleading way. They glammed it up by announcing a clash of two constitutional principles.

"Prof. Nemecek is contesting the dismissal under federal discrimination laws, presenting a test in a growing clash between religious and employee rights. The case is the latest of a number of conflicts pitting two constitutional principles against each other: the freedom of religious organizations to operate without government intrusion versus the rights of workers to be free of discrimination based on race, religion, sex or nationality."

But there is no clash of constitutional principles here. The issue is whether Dr. Nemecek's private employer violated a statutory duty not to discriminate in employment based on sex and disability. Other than a statutory duty, there is no constitutional right to be free of discrimination in employment. (I note that if you work for a public employer, there are constitutional protections, such as the right to "equal protection" and "due process of law," that may come into play. But that is not the situation with Dr. Nemecek.) Thus, Dr. Nemecek cannot raise a constitutional issue here.

Her employer, Spring Arbor University, on the other hand, has a constitutional issue it can discuss: the First Amendment, which states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof..." To the extent that Title VII, as a Congressional law, involves an establishment of religion or prohibits free exercise of religion, it is unconstitutional.

In addition to the religious freedom issue, Spring Arbor may also have an "associational" right from the First Amendment that Title VII potentially violates. Thanks to Paul Secunda of the Workplace Prof Blog for reminding me of this. That argument comes from the Dale v. Boys Scouts of America case, in which Dale was removed as a scoutmaster after coming out as gay. He claimed that the New Jersey Law Against Discrimination prohibited discrimination on the basis of sexual orientation. The U.S. Supreme Court said that the New Jersey law violated the First Amendment right of association of the Boy Scouts, and rejected Dale's claim. They said, in a nutshell, that an organization that has a principle of including only certain groups or excluding others, as part of its basic purpose, cannot be forced by non-discrimination statutes to do otherwise, if it would materially interfere with its basic purpose. I think this would be a tough argument to make in an educational institution setting, but there it is.

Now, Congress included exceptions for religious institutions in 42 USC 2000e-2(e), and this may (or may not) circumvent the problem. But the employer's First Amendment right is not clashing with any other constitutional provision. There's a lot more that could be said on the subject. I'm sure we'll come back to it later

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