I think the point is simply that the defense is nonwaivable, because in order to determine the other issues in the case the court would need to determine whether the employee was performing satisfactorily as a minister, which the First Amendment precludes the court from doing. In effect, the court on its own motion must decline to establish standards for what a satisfactory performance of religious duties might be. Mark Scarberry Pepperdine
________________________________ From: religionlaw-boun...@lists.ucla.edu on behalf of eric treene Sent: Mon 7/19/2010 5:33 PM To: 'Law & Religion issues for Law Academics' Subject: RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit The jurisdictional point has always puzzled me as well. A large number of the court decisions, roughly half I would say, call the ministerial exception jurisdictional. But can that be right? It is "jurisdictional" in a conceptual sense-there are things that properly belong to the authority of the state and things that belong to religious bodies. But the same could be said of any entanglement under the Establishment Clause. When we say that a court does not have the competency to decide matters of religious doctrine in property disputes, we aren't saying that it isn't a court of competent jurisdiction, are we? Has anyone ever seen this jurisdictional argument applied to entanglement notions outside of the ministerial exception? It would seem that to say that there is no jurisdiction in a legal sense is to say that the court does not have subject matter jurisdiction to hear the cause of action. But a federal court, for example, has jurisdiction to hear federal causes of action, and would have subject matter jurisdiction over an ADA claim or a Title VII claim. There may be a constitutional, or statutory interpretation, defense based on entanglement principles, but there is still a federal cause of action stated on the face of a well-pleaded complaint, right? Eric Treene ________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Monday, July 19, 2010 11:06 AM To: 'Law & Religion issues for Law Academics' Subject: RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit 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.
