The U.S. Court of Appeals for the Third Circuit
today issued a 2-1 decision rejecting a ministerial-exception motion to dismiss
a Title VII sex discrimination claim brought by the chaplain of a Chatolic
college who was constructively dismissed. http://www.ca3.uscourts.gov/opinarch/051222p.pdf
The majority opinion was written by Judge Edward
Becker, who died last Friday, and was joined by Judge Nygaard (both Republican
appointees). Judge Smith dissented.
The decision raises a host of interesting and
important questions.
1. For a start, can a dead judge's vote
count? (See Howard Bashman's query here: http://howappealing.law.com/052406.html#014771.)
If this were the Supreme Court, the answer would
be "no," I think, because the Court's traditional practice has been
that a Justice's vote is not counted unless the Justice is on the Court both at
the time of oral argument (when "the case is submitted") and when the judgment
is issued. That's why, for example, there are a handful of cases being
re-argued this Term in which Justice O'Connor (presumably) was the fifth vote in
the majority.
What I don't know is whether this is
simply a matter of Supreme Court practice, or whether it is compelled
by Article III or by statute. In today's Petruska decision, it
seems fairly plain that the opinion was complete and merely going through the
administrative process in the clerk's office when Judge Becker died last week --
and that therefore it's virtually inconceivable that he (the author of the
opinion) would have changed his mind between Friday and today. But not
impossible.
Does anyone have any thoughts on whether there is
an Article III or a statutory obstacle to what the CTA3 did today?
Possible minor wrinkles in that question: Does it matter that the court
itself could grant en banc review -- or deny such review -- before the mandate
is issued? Indeed, what if Judge Becker had died after the opinion was
released but before the mandate issued? Would that change the answer to
the question? If the issuance of the opinion is barred by the Constitution
or by statute, could Judge Smith "cure" the problem by formally shifting his
vote to "reverse," out of respect for Judge Becker and the panel on which they
both sat -- even while continuing to publish his "dissent"?
2. Part of the Becker opinion suggests that
the SCOTUS's religious-organization autonomy cases are solely about
preventing courts from having to adjudicate questions of religious doctrine,
religious belief and church regulation, and that where a case can be decided
without such adjudication of religious questions, generally
applicable laws can and should be applied to churches and religious
organizations. See pages 37-38 (citing Jones and
Smith). This would be a truly radical doctrinal decision:
Until now, no court has held that Smith applies to ministerial
decisions. But the court does not follow through on its logic. At
several places in the opinion (e.g., pages 32, 47, 51), Becker acknowledges that
if a Church does discriminate on the basis of sex as a matter of
religious doctrine in ministerial decisions (e.g., in deciding that only
men may be priests), it will have a constitutional defense to title VII
liability, even though title VII is a generally applicable law and even though
in such a case a Court would not necessarily have to resolve any
questions of religious doctrine, religious belief and church
regulation.
3. The case is decided on a motion to
dismiss (i.e., the court of appeals simply permits the case to go
forward to discovery and possible trial). At this stage, the college has
not asserted any religious basis for dismissing the plaintiff.
Judge Becker is careful to explain that if the college does allege a
religious basis for its decisions, the case would have to proceed without the
plaintiff being able to question the bona fides, or legitimacy, of the college's
religious beliefs or doctrines --- which might well result in a victory for the
defendants . . . but not necessarily. Here's the key passage
describing what would happen in such a case:
I think this analysis is correct as far as it goes
-- but I also think that despite the comprehensiveness of the opinion, and
Becker's care to deal with the opposing arguments, he fails to address a much
more likely scenario as the case goes forward.
To be sure, if the case turns on an assertion that
Petruska did not abide by a religious tenet (e.g., did not attend mass), the
court could probably adjudicate it, because the primary questions would be
whether she did, in fact, attend mass, and, if not, whether there is
evidence that such a reason for her discharge is pretextual (e.g., because the
college did not penalize men who did not attend mass).
But a much more likely scenario is that the college
will defend the suit simply by argung that Petruska's performance of her duties
-- e.g., her prayer services and liturgies -- left a lot to be desired, or that
the school concluded that her replacement would be better at performing
such duties. Obviously, it would be exceedingly difficult for a trier of
fact to adjudicate whether such subjective, discretionary judgments about the
quality of her work were a "but for" cause of the school's
decisionmaking without inquiring into matters that are invariably religious in
nature and thus beyond the ken of civil authorities to evaluate.
My sense is that it is the prospect of these latter
sorts of factual disputes -- E.g., Was she a good chaplain? -- that have led
most courts to dismiss such claims at the outset. The principal failing of
the Becker opinion, I think, is that it does not address this
problem.
4. Judge Smith, in dissent, argues that a
choice of who will perform a religious organization's spiritual functions is an
"inherently" religious decision. This is wrong, I think. Such a
decision will invariably have an impact on the organization's spiritual
functions. And (as discussed above) such decisions might often be based,
at least in part, on the manner in which the individual performs those spiritual
functions. But not invariably. The decision could instead be simply
a matter of (non-religiously-motivated) sex discrimination. This doesn't
mean that Judge Smith's conclusion was wrong; but his rationale also leaves
something to be desired.
5. As you all know, Judge's Becker's death is
the loss of a great jurist and, by all accounts, an extraordinary and wonderful
man. Not surprisingly, he had a reputation as a great judge for whom to
clerk. In footnote 28 of the opinion, Judge Becker graciously nods to one
of those former clerks, our ReligionLaw colleague Marci Hamilton:
Congrats to Marci, even though this tribute, coming as it does two days after Judge Becker's funeral, must surely be bittersweet. 6. If the court of appeals does not reverse
the decision en banc, would the college be advised to petition for cert.?
A very interesting question. There's a clear circuit-split, acknowledged
by the court of appeals. And the votes might be there -- surely
Roberts, Thomas and Alito (a friend and former colleague of Judge Becker) will
be inclined to reverse. But it is something of a risk on the merits.
And the Supreme Court may well be inclined to wait until the case is
resolved rather than to accept an interlocutory appeal -- after all, the
defendants might still prevail on "religious question" grounds as the case
proceeds.
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