Actually the Children of God did but that does not make Elvig wrongly decided.
Serious enough social harms can and should limit protection under the First
Amendment.
Licentiousness was never intended to be protected under the First Amendment.
Why craft a doctrine to do so today? Women are no longer property...
Marci
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "masin...@nova.edu" <masin...@nova.edu>
Sender: religionlaw-boun...@lists.ucla.edu
Date: Mon, 19 Jul 2010 13:41:55
To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu>; Robert
Tuttle<rtut...@law.gwu.edu>
Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: 10th Circuit Finds Church Immune From Workplace
Discrimination Suit
Professor Tuttle's explanation for why the ministerial exception is
treated as jurisdictional also suggests why it should be limited to
claims that implicate questions of qualifications to perform a
ministerial job. Given that hostile work sexual harassment claims
arise from the failure of an employer to remedy tortious sexual
conduct by coworkers or supervisors directed at a particular employee,
why isn't Elvig, permitting such claims to proceed, a better decision
than Skrzypczak?
Sexual harassment almost always takes one of two forms -- unwelcome
physical conduct of a sexual nature or repeated targeted demands for
sexual favors; the courts of appeals have largely eliminated sexual
harassment claims based on crude language unaccompanied by unwelcome
sexual touching. See, e.g., Mendoza v. Borden, Inc. 195 F.3d 1238
(11th Cir. 1999) (en banc); Gupta v. Florida Board of Regents, 212
F.3d 571 (11th Cir. 2000). Recall that Meritor arose from a claim of
sexual harassment that involved allegations of sexual battery. What
about the ministerial exemption should insulate a ministerial employer
from tort liability for sexual torts simply because the victim was an
employee?
The principal post 1991 Civil Rights Act remedies for hostile work
sexual environment claims are compensatory damages and attorney's
fees. Though injunctive relief may accompany successful claims, its
scope is always discretionary, and could be adjusted or even
eliminated to ensure the absence of disruption to the spiritual
relationship between the church and the injured employee. But how
does a claim for damages for what are in essence sexual torts
implicate the rationale for the ministerial exemption? Courts do not
lack subject matter jurisdiction to hear common law tort claims
against religious institutions for sexual torts generally, so why
isn't Elvig the proper rule? How will adjudicating the factual
question of whether those torts took place within the workplace
against an employee rather than within the church against a congregant
"enmesh the court in endless inquiries as to whether each
discriminatory act was based in Church doctrine or simply secular
animus" as the Seventh Circuit held in Alicea-Hernandez v. Catholic
Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 2003). Bluntly stated,
what church makes submission to or tolerance of repeated unwelcome
physical sexual advances part of church doctrine?
Michael R. Masinter 3305 College Avenue
Professor of Law Fort Lauderdale, FL 33314
Nova Southeastern University 954.262.6151 (voice)
masin...@nova.edu 954.262.3835 (fax)
Quoting Robert Tuttle <rtut...@law.gwu.edu>:
> 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
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>>
>> Please note that messages sent to this large list cannot be viewed as
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>>
>
>
>
> --
> 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
>
_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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Anyone can subscribe to the list and read messages that are posted; people can
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_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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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.
