concurring in result.
While it may be patently discriminatory to terminate a tenured faculty member, who happens to be a Catholic, while not permitting termination of a tenured faculty member who embraces a different religious faith, such discrimination is constitutionally protected.
*338This anomalous and seemingly unjust result is dictated by the interpretation given over the years to the prohibition against the judiciary from “interfering” in matters of religious dogma or discipline. This prohibition would seem to control even where the discrimination is patent. It requires us to affirm the finding that a faculty member is rendered unfit to teach solely by dint of her public disagreement with a particular teaching of the Church.3 In this case, the teaching is that ordination of women is contrary to moral law as interpreted by the papal encyclical. Furthermore, our decision is compelled whether or not the divergence of philosophical or theological view is reflected in the classroom.
Dr. McEnroy was terminated because her signature to the public letter, along with that of some fifteen hundred others, rendered her, in the opinion of Archabbot Sweeney, “ ‘seriously deficient’ in her duties as a seminary professor.” Op. at 336. I find no evidence permitting even an inference that Dr. McEnroy, by reason of her personal position on the issue, had become less efficient or conscientious in her teaching methods or in the presentation of the classroom subject matter within her duties. Nevertheless, it was concluded that the Church’s canon law required her removal.
Be that as it may, this case rests upon the proposition that the Church may discipline and sanction its own faithful as it sees fit without regard to concepts of discriminatory conduct which would otherwise be unlawful. This is deemed an internal hierarchical discipline dispute in which the judiciary may not become involved.
It is for this reason that we are forbidden to apply common law contractual principles to the matter of Dr. McEnroy’s tenured employment. It is for this reason that I am compelled to concur.
. The factual determinance of Dr. McEnroy's "serious deficiency” and unfitness is premised upon reliance upon a provision of the canon law’s Program of Priestly Formation, which states that seminary faculty are to "set forth Catholic doctrine as formulated by the authoritative teaching office of the Church” taken in conjunction with a canon law provision which requires removal of a seminary professor who is "seriously deficient in his or her duty.” Record at 71-72, 434.
An analytical gap appears between the first principle of doctrinal conformance and the second principle relating to deficiency in one's teaching duties unless that area of doctrinal conformity or the lack thereof, in some way impacts the educational communication of subject matter and methodology from the professor to the student. Stated conversely, unless the professor in the academic setting sets forth a doctrine contrary to that of the Church, it is difficult to ascertain how she is rendered "seriously deficient” in her teaching duties.
In final analysis, the determination necessarily rests upon the rationale that if the Church official says that the professor is deficient in her teaching duties because of a doctrinal dispute unrelated to the classroom, it must be so.