Bob, this may be a dumb question and you may have an easy answer for me.
But if you’re not referring to subject-matter jurisdiction, I’m having
trouble understanding what you mean when you call this “jurisdictional” in
a more general sense.  I understand that jurisdictional defects can be
nonwaivable—that parties don’t have to plead them, courts have an
independent obligation to consider them, even final judgments are void if
they were present when litigated.  But my understanding is all of that
only follows from problems with subject-matter jurisdiction.  Even a lack
of personal “jurisdiction” can be waived, for example.  So I guess what
I’m asking is this.  Once you concede that we’re not talking about
subject-matter jurisdiction, doesn’t the legal claim that this is
nonwaivable become quite hard to argue?  Is there precedent to say that
problems other than subject-matter jurisdiction are nonwaivable?



Regarding Eric’s point, a case that helped me was Arbaugh v. Y & H Corp.,
546 U.S. 500 (2006), where the Court held that the 15-employee requirement
in Title VII did not go to subject-matter jurisdiction.  The Court was
unanimous, and Eric perfectly summarizes its logic: Title VII is a federal
law; therefore there is presumptively subject-matter jurisdiction pursuant
to 28 U.S.C. § 1331; and nothing in Title VII explicitly says that the
15-employee requirement was meant to be a jurisdictional limitation on
that.   Arbaugh also talks for a bit about the problem of “drive-by
jurisdictional rulings”—the bad habit of courts saying that something is
barred for lack of jurisdiction when they really just mean that there’s no
valid claim on the merits—which may be exactly the sort of thing to which
Eric was referring.



Best,

Chris



From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Robert Tuttle
Sent: Monday, July 19, 2010 9:07 PM
To: Law & Religion issues for Law Academics
Subject: Re: 10th Circuit Finds Church Immune From WorkplaceDiscrimination
Suit



In reply to Eric, I don't mean "jurisdictional" in the sense of subject
matter jurisdiction - and I think courts are usually wrong to dispose of
ministerial employment cases on a motion to dismiss -- facts are always
needed, if nothing other than to determine whether the position is
ministerial.  By jurisdictional, I mean only that the exception isn't
subject to waiver or interest balancing, but that only suggests that its
source is in the Establishment Clause rather than Free Exercise/RFRA, etc.
Michael Masinter's point about the sexual harassment cases is well-taken,
and as you all know the courts have not applied the ministerial exception
in that context, because the claims do look more like assault than
disputes over qualifications/performance.  But I don't think it matters
whether or not the congregation claims that race/gender/age discrimination
are matters of doctrine - the point is that the state can't set
qualifications for ministry, or step into determine whether the minister
has performed acceptably (as in a claim of pretext).

Bob

On Mon, Jul 19, 2010 at 8:33 PM, eric treene <etre...@comcast.net> wrote:

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”?




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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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