Heeding the Times from Harry Antonides' Desk

American Court Refuses to Settle Dispute about University Hiring

July 1, 1986 -

A recent decision by Judge John W. Reynolds of a U.S. District Court in Wisconsin is indicative of a new trend in human rights disputes. Marjorie Maguire, a theologian, charged that Marquette University refused to hire her because of her liberal views on abortion and because she is a woman. Judge Reynolds dismissed the suit, concluding that the court is not the proper agency to decide who is fit to teach in the theology department of a Catholic university. Following are some excerpts of this intriguing May 1986 issue of Catholicism in Crisis:

This case presents a very interesting question and that is whether or not federal judges should decide the theology department of a religious university—in this case, Marquette, which is run by the Jesuits of the Roman Catholic Church. The Court is troubled by the fact that both parties seem to agree that this Court should have something to say about plaintiff's eligibility to teach in Marquette's theology department . . .

The University has adopted an affirmative action plan, which plan includes a clause in which the university reserves the right to "grant preferences in its employment practices to Jesuits to perform any work connected with the carrying on by Marquette University of its activities." In the instant action the plaintiff questions the validity of this preference as it is applied to the hiring of Jesuits in the theology department . . .

If the Court were to grant plaintiff the relief she requests, a place on Marquette's theology faculty, the government would, in effect, be forcing its interpretation of what Catholicism demands on the University and its students. Such a ruling would not only interfere with the theology department's right to freely exercise its religion through the explication and analysis of Catholicism and other religions, but would also result in a governmental imprimatur of approval on a particular set of beliefs as "Catholic." The Court can no more rule that the plaintiff is not a Catholic than it could find that members of the hiring committee are Catholic . . .. . .

Entanglement here differs from the typical establishment case in that a court ruling on the question would not directly impact upon nonbelievers and believers of different faiths, but would only affect Catholics. The state, through this court, would involve itself in theological questions and then, if finding for plaintiff, impose upon the theology department at Marquette the Court's judgment as to what comprises adherence to the Catholic faith. Apart from the impact upon the free exercise of religion at Marquette, such a decision would violate the prohibition that the state not establish a religion, which would be the effect of a court ruling that plaintiff is a Catholic and that Marquette may not rely on its determination that she is not as a defense in her suit for failure to hire . . .. . .

In the instant action plaintiff's own complaint reveals that the defendant's agents do not believe that her theological beliefs make her an appropriate person to teach in Marquette University's theology department. Despite her protests that she is a Catholic, "of a particular religion," the determination of who fits into that category is for religious authorities and not for the government to decide. 

This court case is of more than incidental interest to Canadians. The Canadian Charter of Rights and Freedoms as well as the new equality legislation enacted or now contemplated by various provincial legislatures may very well give rise to similar court cases in Canada. It's to be hoped that Canadian judges will demonstrate the same degree of restraint and wisdom as Judge Reynolds did in this case.

This article originally appeared in Comment magazine, a journal founded by Harry Antonides. Find all of Harry’s pieces, and thousands more, at http://www.cardus.ca/comment