Thursday, July 23, 2009

Gableman Ordains Elementary School Teacher

By Lisa Kaiser
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All I can say is wow.

Talk about an activist judge!

In his latest decision, State Supreme Court Justice Michael Gableman, who had defended his right to lie in campaign ads, has ordained a first grade teacher. The ethically challenged justice is now defending the right of religious institutions to discriminate against their employees. And to get to that result, he had to find that a first grade teacher in a La Crosse Catholic school was actually part of the spiritual leadership of that church, and therefore held a “ministerial” position. And because it’s a ministerial position, the state cannot interfere with a church’s decisions regarding the hiring or firing of its leaders--err... first grade teachers.

Gableman, writing for the majority (Roggensack, Prosser, Ziegler), states:

“The state simply has no authority to control or interfere with the selection of spiritual leaders of a religious organization with a religious mission. The text of our constitution states that the state cannot do it—at all.”

I’m sure that the first grade teacher in question, Wendy Ostlund, would be surprised to find she’s up there in the church hierarchy with priests, bishops, cardinals—heck, I’m sure the pope is pretty surprised, too, that a lay woman has so much power in the Catholic church. Did a puff of white smoke pass over Vatican Square when the decision was released?

Gableman’s elevation of Ostlund to the ministry is contrary to the findings of three Supreme Court justices (Crooks, Abrahamson and Bradley, who dissented in this case), an administrative law judge, the state Labor and Industry Review Commission, a circuit court judge, and an appeals court—all of whom found that Ostlund’s position was not ministerial, even though she worked in a Catholic school that promoted Catholic teachings (and, for the most part, had a secular curriculum).

Justice Patrick Crooks, writing a dissent, took some good swipes at Gableman’s logic, charging that Gableman gave religious groups “a free pass to discriminate”:

“[The Coulee Catholic Schools’] mission is not unique among Catholic schools, and Ostlund's duties are not unique among lay Catholic schoolteachers. If this case is to serve as an example of how a Catholic school infuses Catholic doctrine into every secular subject taught there, I fail to see how any lay Catholic schoolteacher will fall outside of this broad "exception" devised by the majority.”

Crooks then ups the ante, charging that Gableman’s overreaching threatens the Milwaukee Parental Choice Program, which allows the state to pay the tuition of students in faith-based schools.

“The participating schools in that program include both nonsectarian and sectarian schools. Significantly, the program also includes an "opt-out" provision that prohibits private schools from requiring children to participate in religious activities if their parents or guardians wish their children to be exempt from such activities. …. The program also requires participating private schools to comply with nondiscrimination laws…. We ultimately concluded that the amended MPCP did not run afoul of either the Establishment Clause or Article I, Section 18.”

So which is it? Can the state require parochial schools in the choice program to comply with nondiscrimination laws because their teachers aren’t, technically, spiritual leaders and religion doesn’t infuse the entire curriculum? Or should the state cut off funding to faith-based schools because their teachers are primarily religious leaders—"ministers"? Is state funding of church-based schools an intrusion on a church's autonomy? Can religious institutions disregard discrimination laws when hiring and firing staff? Would you want to be part of a religious organization that discriminated against its employees? For Gableman, apparently, anything goes if you’ve got faith.

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