I'm not sure why, absent some judgment about the impropriety of the ministerial exemption, one would think that employees and potential employees are somehow entitled to disclosure about the way in which constitutional doctrine might frustrate what they (perhaps erroneously) to be their statutory rights. Why, indeed, not require reporters to tell persons who may qualify as public officials or figures about the way in which constitutional doctrine may impair what they might otherwise regard to be their legal protection from defamation? Even if we are especially concerned about employees, why not require that they be told, for example, that the presumed right of white employees to be free of race based decision-making could be compromised should circumstances justify race conscious remedies under current doctrine?
One argument might be that, if we recognize a ministerial exception, religious organizations are being granted some unique exemption from generally applicable laws. Putting apart whether that could ever be an accurate description of the current constitutional landscape, it is not clearly so. Associational rights, such as those of the Boy Scouts, might also warrant an exemption from otherwise applicable discrimination laws. Going beyond that, why does the potential frustration of the expectations of employees stemming from a failure to appreciate the law of free exercise or of legislative solicitude for religious organizations deserve special attention? Most of us who don't hail from social circles riddled with lawyers know, for example, that the concept of at-will employment comes as a shock to the average man or woman on the street. Most have no idea that the right of free speech that they understand to exist does not protect them from private employers. In fact, it is not at all clear that persons who accept positions that might qualify as "ministerial" are likely to be ignorant of the ways in which free exercise might be thought to justify exemption from certain legal requirements in some unique way that justifies qualifying statutory or constitutional rights on disclosure. They may very well be more, rather than less, likely to know the legal landscape. To place a unique burden on religious organizations raises questions of government neutrality as a matter of policy, free exercise and establishment in the sense of avoiding both endorsement and disapproval of religion. Rick Esenberg Marquette University Law School Eckstein Hall 253B 1215 W. Michigan Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905&userID=3715 Blogs: www.sharkandshepherd.blogspot.com http://law.marquette.edu/facultyblog/ You can access my papers at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Monday, July 19, 2010 8:49 AM To: Law & Religion issues for Law Academics Subject: RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Friends -- with respect to Marci's suggestion that religious entities be required to inform people in ministerial positions about the fact that such entities have a constitutional right to hire-and-fire that is not subject to many employment-law constraints . . . it seems to me that people often suffer what I think Marci and I would agree are "harms" as a result of others' exercise of constitutional rights (in particular, the freedom of speech). That is, the Constitution does have the effect (and, it seems to me, *was* intended to have the effect) of insulating *some* harms (e.g., the pain caused by offensive speech) caused from correction or prevention by the government. Do we think, though, that, as a general matter, rights holders should have to inform those with whom they are in relationships and who might be harmed by the exercise of the rights holders' rights that the rights might, in fact, be exercised? Should a reporter, for example, have to warn anyone whom she interviews about the harm-causing-potential of the rule in New York Times v. Sullivan? 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"? Best, r Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Friday, July 16, 2010 3:44 PM To: religionlaw@lists.ucla.edu Subject: Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Bob makes very good points but I'm not persuaded. Religious employers can be required to report child abuse by their employees, so why can't they be required to provide legal boilerplate to incoming employees? If Bob is right, we have serious problems in my view. The public policy problem is that no religious organization is going to make such a warning without being prodded by the law (or insurance cos., but they do not prod without legal --aka financial -- consequences). So we are stuck with obvious harm to employees of religious organizations but no solution. I am a firm believer that the Constitution was not intended and should not make it impossible for government to prevent or remedy substantial harm. So that leaves the government -- charged with protecting citizens from harm -- on Bob's theory hamstrung from requiring religious employers to issue a warning regarding the state of the law. So how does the government protect its citizens? I guess there are several public education options: (1) public service announcement: if you are considering or are working for a religious institution in a religious capacity, you need to understand that it is immune under judicial doctrine from anti-discrimination laws, including sexual harassment and gender discrimination (2) on every W-2, which the religious employer must provide to every full-time employee, right?, there is boilerplate saying the same as above. Here is another option-- how about no religious organization can be eligible for faith-based funding unless it provides to its employees a statement that it is immune from the anti-discrimination laws? Marci In a message dated 7/16/2010 3:13:44 P.M. Eastern Daylight Time, rtut...@law.gwu.edu writes: Marci's idea of a warning for ministerial employees would certainly be a prudent step for religious employers to take on their own initiative, but I don't think the state could impose such a requirement as a condition of the religious employer invoking the exception in litigation -- the exception seems to me jurisdictional, not something derived from a religious organization's claim of autonomy (about which there is good reason to be dubious) but rather from courts' constitutional inability to determine what is adequate qualification for or performance of the ministerial role. Bob Tuttle
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