< link rel="DCTERMS.replaces" href="http://fumare.us/" > < meta name="DC.identifier" content="http://fumare.blogspot.com" > <!-- --><style type="text/css">@import url(https://www.blogger.com/static/v1/v-css/navbar/3334278262-classic.css); div.b-mobile {display:none;} </style> </head> <body><script type="text/javascript"> function setAttributeOnload(object, attribute, val) { if(window.addEventListener) { window.addEventListener('load', function(){ object[attribute] = val; }, false); } else { window.attachEvent('onload', function(){ object[attribute] = val; }); } } </script> <div id="navbar-iframe-container"></div> <script type="text/javascript" src="https://apis.google.com/js/plusone.js"></script> <script type="text/javascript"> gapi.load("gapi.iframes:gapi.iframes.style.bubble", function() { if (gapi.iframes && gapi.iframes.getContext) { gapi.iframes.getContext().openChild({ url: 'https://www.blogger.com/navbar.g?targetBlogID\x3d12407651\x26blogName\x3dFUMARE\x26publishMode\x3dPUBLISH_MODE_BLOGSPOT\x26navbarType\x3dBLACK\x26layoutType\x3dCLASSIC\x26searchRoot\x3dhttp://fumare.blogspot.com/search\x26blogLocale\x3den_US\x26v\x3d2\x26homepageUrl\x3dhttp://fumare.blogspot.com/\x26vt\x3d6298351012122011485', where: document.getElementById("navbar-iframe-container"), id: "navbar-iframe" }); } }); </script>


Law, culture, and Catholicism...up in smoke!

Monday, June 22, 2009

Bone up on the Law of Religious Exception

Some of our commenters appear to believe Monaghan's twisted sense of the availability of the religious exception has some teeth apart from the laughable farce that it is. The law school does not have the qualities to make the exception apply to its functions performed in civil contract or tort; and, the nature of the exception, where available, does not apply in a contract breach. Finally, as civil law sees it, Moynahann did not have a civil duty to report his hiring and firing decisions to the Bishop (or any other Juridic Person).

To begin with, Ave Maria School of Law is not a religion. The corporation of the school is not a religion. It is not a coordinating entity, as a diocesan hospital, or a school run by Jesuits or Dominicans. It is a regular corporation with a promise to teach accurately Church teaching, and able to use the title Catholic because it promises not to teach heresy. As such, it has neither ascendant, coordinating, or ministerial capacity as a religious entity. It has nothing as far as the Church is concerned with religious capacity, other than to represent to the public that is it Catholic and will reliably teach Catholic precepts. More importantly, in technical terms, this means that neither AMSoL nor Monahgam have Juridic Power because they are not Juridic Persons.

As I said from the beginning, with regards to Catholic entities, Juridic Power is a key component. See, e.g., Chopko's (the General Council of the USCCB) article on BC's law review: STATING CLAIMS AGAINST RELIGIOUS INSTITUTIONS
(From the abstract: Although the U.S. Constitution protects the rights of religious institutions, it confers no general immunity from liability for their contracts and torts. This Article’s study of the case law indicates that claims may be stated against religious institutions if those institutions had the corporate power or ecclesiastical responsibility for the specific matter in dispute, or had themselves taken action in the matter. A general assertion of the potential to take action or potential to control is insufficient to result in a claim against the institution. Liability would reside, if at all, in the entity that has both the juridic power (under the religious polity) and the civil duty to answer for the actions of persons or other entities in the religious structure. Departure from these principles could result in an unconstitutional exercise by a court.)
Being a Juridic Person is a function of Canon Law (and necessarily tied to the concept of ministerial power in the Church).

Rather, as I pointed out somewhere else, Momgahan thinks his hiring and firing decision can be put into strictly religious principles. Tenure, and the hiring of professors is a civil contract, and breach of a civil contract is answerable to civil courts. Moreover, I assumed in my earlier posts that the essential concept of the religious exception being tied to religious authority self explained that in order for Slobagman's argument to have any teeth in the Catholic concept, then the Bishop or some other Juridic Person must have been the final word on the firing decision.

Chopko, supra, describes this last point as a civil duty to report. Nonagman had none. Too bad. Go home and write some more frivolous motions.

All that the religious exception would provide to the law school would be the capacity to select and discriminate tenure decision based on religion in order to preserve the Catholic teaching part of the law school. But Safranek wasn't denied tenure, he was fired. As far as I could tell, there was no Title VII claim in Safranek's argument, but a wrongful discharge and breach of contract.

I don't see any court case anywhere that allows a religious exception to breach contracts and commit torts. That would mean religions in America have carte blanche to break the basic laws of the land. We all know that's not the case, but that's the laughable import of Mammyghan's silly motion. He wants to be above the law because he's a super-catholic of the only authority needed -- his own.

In other words, Montagnan's argument might have teeth to protect against a Title VII claim of discrimination made by a wiccan who was denied tenure, but it has none for breach of contract or tort. Likewise, a wiccan law school would have similar protection when denying a Catholic. Or a Muslim law school when denying a Buddhist, and on and on. But none of them would be exempt for skipping out on a contract to buy computers from a supplier after the computers were delivered, or from paying a plumber who fixed the service lines, but that's what Mummynand is arguing.

It's silly, laughable, and stupid, and I think, in my opinion, brings disrepute and scandal to the Catholic Church.