U.S. First Amendment & Employment Rights For Religious Figures (Like Andy Warhol?): On The Supreme Court Decision

Two bits of controversial news had the legal community going bananas yesterday.

First, a questionably copyrighted image in the public domain—specifically a banana illustration on a music album cover—is the subject of a trademark lawsuit that was filed by The Velvet Underground.

In 1967, the band used the image of a banana and the signature of Andy Warhol on the cover of its “The Velvet Underground and Nico” album, which critics labeled as “one of the most influential rock recordings of all time,” according to the complaint.

The band’s founders, Lou Reed and John Cale, claim The Andy Warhol Foundation infringed on this design by licensing it to third parties, reports Bloomberg.

The design was initially a collaboration between the band and artist Andy Warhol, but The Warhol Foundation now claims it has copyright interest in the image, according to the lawsuit, since the banana illustration was taken from an advertisement in the public domain.

Warhol’s copyrighted works have an estimated market value of $120 million. The Warhol Foundation has earned more than $2.5 million each year licensing rights to those works, according to the complaint (via Bloomberg).

When this much money (and artistic expression) is at stake, the subsequent jury trial will certainly garner much media attention.

“The banana design is a significant element of Velvet Underground’s ongoing licensed merchandising activity,” the group reportedly said to Bloomberg, and use of the design as a trademark by the band “has been exclusive, continuous and uninterrupted for more than 25 years.”

Yesterday, marking roughly 225 years of constitutional freedom, a Supreme Court decision not only upheld the First Amendment by protecting religious liberty in America, but the legal precedent set by the court also, arguably, expanded these rights.

In this second bit of significant news, the Supreme Court–on Wednesday–recognized “ministerial exception” as applicable to employment discrimination law in America.

In other words, the Supreme Court decided that churches and religious groups should be able to hire and fire employees at will, without government restriction, interference, or legislation.

“’The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,’ Chief Justice John G. Roberts Jr. wrote in a decision that was surprising in both its sweep and its unanimity.’ But so, too, is the interest of religious groups in choosing who will preach their beliefs, teach their faith and carry out their mission,’” reports the New York Times.

The landmark case, Hosanna-Tabor Church v. Equal Employment Opportunity Commission, No. 10-553, was brought by Cheryl Perich, a former teacher. Ms. Perich alleged that she was fired from her school, which is part of the Lutheran Church-Missouri Synod, for pursuing, under U.S. law, an employment discrimination claim for her disability of narcolepsy, according to Bloomberg.

Narcolepsy is a neurological condition that is typically protected under Federal Law as a medical disability. In the case of this religious-school teacher, however, the school–as part of the Lutheran Church–does not abide by the same anti-discrimination laws as secular institutions. Therefore, the Supreme Court ruled, the school was within its rights to fire Ms. Perich.

The decision certainly emphasizes the importance that the separation of church and state holds in the eyes of Supreme Court Justices. However, the implications of the ruling, in terms of turning a blind eye to instances of employment discrimination, will be pervasive in American society.

For example, the court’s ruling does not address the entire scope of its religious amnesty—does it apply to all priests and ministers, how are these titles defined, and what are the impacts for secular teachers in religious schools?

Furthermore, the decision begs the question, are religious leaders now exempt from racial, religious, or sexual discrimination and harassment in the workplace?

For lawyers representing religious institutions, it is, now, even more important to brief your clients on pertinent employment law.

Truman Capote wrote about Andy Warhol, “He symbolises things to desperate people. They come to him and tell him all their troubles. They cling to him as a source of strength, as a kind of semi-religious figure in their lives.”[1]

So, who constitutes a religious figure and what are their employment rights? Today, a Warholian Supreme Court is starting to draw lines.


1. Truman Capote, as quoted in Edie: An American Biography, Jean Stein and George Plimpton (1982)


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