By way of reply to both Marci and Chris - I think (and Chip Lupu and I have written at some length) that the ministerial exception is jurisdictional because, at least at some level, it's not subject to waiver by the parties, any more than (post Blue Hull Memorial) a congregation/denomination could ask a court to decide which of the disputing factions was more faithful to the tradition. Most, not all but most, cases covered by the ministerial exception involve the possibility of dispute over the qualification for or performance of a ministerial role, and judgment about whether one is qualified to be a minister or has performed well in that role can't be decided by civil courts without adopting some normative -- i.e., religiously thick -- understanding of ministry.
Bob On Mon, Jul 19, 2010 at 11:06 AM, Christopher Lund <ed9...@wayne.edu> wrote: > One point of clarification, which goes to Bob Tuttle’s point more than > Marci’s: Are we sure that the ministerial exception is jurisdictional? I > would have thought it wasn’t. I agree it’s constitutional. So like Bob, I > would think that Congress can’t diminish its scope—Congress can’t say to a > religious organization, “You’ll lose this constitutional right [ministerial > exception] unless you do this [inform an employee prospectively about the > ministerial exception].” But why should we consider this constitutional > limitation *jurisdictional*? > > > > Best, > > Chris > > ___________________________ > > Christopher C. Lund > > Assistant Professor of Law > > Wayne State University Law School > > 471 West Palmer St. > > Detroit, MI 48202 > > l...@wayne.edu > > (313) 577-4046 (phone) > > (313) 577-9016 (fax) > > Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 > > > > *From:* religionlaw-boun...@lists.ucla.edu [mailto: > religionlaw-boun...@lists.ucla.edu] *On Behalf Of *hamilto...@aol.com > *Sent:* Monday, July 19, 2010 10:45 AM > *To:* religionlaw@lists.ucla.edu > *Subject:* Re: 10th Circuit Finds Church Immune From Workplace > Discrimination Suit > > > > Rick is casting a larger net than my post suggested. The relevant universe > here is the universe of employees. As in the speech cases (and in > particular the defamation cases since we're dealing with employment), there > should be some weighing of interests here. Right now, in my view, the > balance is out of whack in this universe. (If there are other harms arising > from other First Amendment rights that require redressing, I'm all in favor > of exploring those as well.) > > > > Employees assume that they cannot be discriminated against on the basis of > gender (including a right not to be a victim of sexual harassment). It > turns out in most states that they are UNLESS the employer is religious. > (Don't forget the Supreme Court has not yet ruled on the ministerial > exception so whether it is a robust or less robust or not a constitutional > right still remains in limbo.) So a bishop who creates a hostile working > environment or who persistently engages in sexual innuendo typically is > immune or who arbitrarily decides a man is a better choice than a better > qualified woman is immune. > > > > Employees are doubly disabled in these scenarios. First, as Americans the > culture encourages them to trust religious leaders (though surely that is > declining in light of the steady investigative reporting suggesting folks do > that at their peril). More importantly, because of the ministerial > exception, few cases are ever filed, let alone litigated, and, therefore, > the incidence of gender discrimination is not publicized. So women are > going into these jobs with expectations of fairness that are not borne out, > because of a First Amendment doctrine. > > > > One option is to carve back on the right so that no employer who fails to > advise an employee of this issue can claim it. Bob objected to that, > because the ministerial exception is jurisdictional. But if this is the > result, why should it be? Why isn't it a right, like the freedom of speech > in defamation cases, which carries with it some obligations and weighing, > depending on the scenario? > > > > One option is to have the government inform applicants through public > education, as in add language to the tax forms..... Another is to have > anyone who is taking government funds for mission have to agree as a > condition of receiving the funds to inform employees about the risks they > are taking by taking the employment. > > > > Is Rick saying none of these options are constitutional and/or desirable? > > > > Marci > > > > Marci A. Hamilton > > Paul R. Verkuil Chair in Public Law > > Benjamin N. Cardozo School of Law > > Yeshiva University > > > > > > In a message dated 7/19/2010 9:50:33 A.M. Eastern Daylight Time, > rgarn...@nd.edu writes: > > I agree, for what it’s worth, that it makes good sense for attorneys > representing churches and religious institutions to advise their clients to > inform those in ministerial positions (that is, in any position that the > church regards as ministerial) about their (the institutions’) religious > liberty. But I’m wondering if Marci’s proposed warning requirement applies > only to religious employers (and if so, why? Because they are employers? > Because they are religious?) or to all whose rights-exercise might cause > “harm”? > > > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be viewed as > private. Anyone can subscribe to the list and read messages that are > posted; people can read the Web archives; and list members can (rightly or > wrongly) forward the messages to others. > -- Robert Tuttle Professor of Law David R. and Sherry Kirschner Berz Research Professor of Law & Religion GWU Law School SSRN download page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=271025
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
