There is a whole series of recent cases like Arbaugh, trying to stamp out the
use of the word "jurisdictional" to describe substantive prerequisites to a
claim or severe statutes of limitation that are not subject to normal tolling
rules.
Quoting Christopher Lund <ed9...@wayne.edu>:
> Bob, this may be a dumb question and you may have an easy answer for me.
> But if youre not referring to subject-matter jurisdiction, Im having
> trouble understanding what you mean when you call this jurisdictional in
> a more general sense. I understand that jurisdictional defects can be
> nonwaivablethat parties dont 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
> Im asking is this. Once you concede that were not talking about
> subject-matter jurisdiction, doesnt 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 Erics 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 rulingsthe bad habit of courts saying that something is
> barred for lack of jurisdiction when they really just mean that theres no
> valid claim on the meritswhich 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 sensethere 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 arent saying that it isnt 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 Tuttles point more than
> Marcis: Are we sure that the ministerial exception is jurisdictional? I
> would have thought it wasnt. I agree its constitutional. So like Bob,
> I would think that Congress cant diminish its scopeCongress cant say to
> a religious organization, Youll 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 its 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 Im wondering if Marcis 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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>
>
>
>
> --
> 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
>
>
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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