I have always assumed - and Bob can clearly tell me if I am way off base - that when Bob uses the term "jurisdictional" in discussing Establishment Clause issues, he is referring to what others might call "structural" constitutional constraints, such as the separation of power rules, which are considered to be nonwaivable and not subject to interest balancing in their application.
I am not sure whether Bob believes that categorical or definitional interest balancing has a role to play in determining what these Establishment Clause rules should be and only rejects interest balancing in the application of the rules in specific cases or whether he believes that structural/jurisdictional Establishment Clause doctrine is derived exclusively from more abstract principles. Alan Brownsteijn From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Tuesday, July 20, 2010 7:01 AM To: 'Law & Religion issues for Law Academics' Subject: RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit 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. ยง 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<mailto: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> [mailto: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<mailto: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> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of hamilto...@aol.com<mailto:hamilto...@aol.com> Sent: Monday, July 19, 2010 10:45 AM To: religionlaw@lists.ucla.edu<mailto: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<mailto: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<mailto: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. -- 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
_______________________________________________ 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.
