Thanks, Howard. Is there something in the SG's brief that suggests that it thinks there would be a ministerial exception to the anti-discrimination provisions, but not the anti-retaliation provisions? I may have missed it. The idea is interesting, but I have trouble seeing why the ministerial exception would apply to one but not the other. You say that there may be less risk of erroneous determination of motive in retaliation cases. Maybe you could explain further, I'm not sure I know what you mean. In both discrimination and retaliation cases, courts use the McDonnell Douglas burden-shifting scheme, where juries pass on the church's alleged nondiscriminatory reasons in deciding the existence of discrimination or retaliation. Won't the problematic considerations of job performance (i.e., did the plaintiff-who, by hypothesis, had significant religious duties-do those religious duties well or not?) enter equally into both sets of cases?
As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a big part of why the ministerial exception has persisted all these years. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Tuesday, August 16, 2011 11:55 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" It seems to me the SG is arguing that there is no ministerial exception from the anti-retaliation provisions of the ADA, but is not necessarily arguing the same as to the anti-discrimination provisions. This makes some sense, since-- to the extent that the ministerial exception doctrine is broader than the related ecclesiastical abstention doctrine-- it is designed to protect against imposing a burden on a religious organization to prove the reason for its employment action. I.e. we should not require a church to show that it dismissed an employee, who had a disability, for doctrinal reasons rather than because of the disability. There is likely less risk of erroneous determination of motive in retaliation cases. Beyond this, it seems to me that a missing piece in all of this is the employee's perspective. The cases and briefs posit the church's interest vs. the state's interest. However, from the perspective of the employee, the issue is protection against arbitrary employment action based on factors such as race, national origin or disability, where admittedly those have no relation to doctrinal concerns of the religious organization. Employees of religious organizations often tend to be underpaid as it is. Anyone who has worked with boards of non-profits knows that the possibility of petty motivations for employment actions are not eliminated just because of the religious overlay. Do we really want to make it riskier for individuals to pursue challenging positions with non-profits because they lack protection that every other employee in our society has? Is the risk or erroneous determination of motive strong enough to justify this? Particularly if we add the rule, as the SG's brief suggests, that reinstatement would not be a remedy? Howard Friedman -----Original Message----- From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Tue 8/16/2011 10:08 AM To: 'Law & Religion issues for Law Academics' Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Marty asked for opinions on the briefs. Here is what I've been thinking, for whatever it's worth (probably very little). At the outset, I should say that my own views may be atypical, so I'm particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope-does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don't believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable-so there's no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant constitutional concerns should instead be handled by a bunch of discrete, narrower rules: (1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and (3) a ban on cases where (a) the church claims it fired the plaintiff for failing to adequately perform his or her religious duties and (b) the plaintiff has no separate evidence that this is pretext. Maybe it's just me, but I thought this a surprising position for the SG. This is, to my knowledge, a narrower view of the ministerial exception than any federal court has adopted. Courts have divided on what jobs and persons fall within the ministerial exception. But they have agreed that, for those jobs and persons, the ministerial exception is a categorical bar. The SG doesn't believe in a categorical bar. If I understand the SG's position right, a dismissed Catholic bishop could bring suit against the church under any of the discrimination laws, provided he only seeks damages and has evidence of pretext. In particular, there's a huge fight about the scope of the church autonomy precedents. Hosanna-Tabor relies heavily on them to establish a broad principle. The Solicitor General treats them just as "older cases concerning church-property disputes" (p. 11). All that dicta in Kedroff and other cases about church autonomy is now overruled by Smith; neutral and generally applicable laws control. Of course, the NLRA in Catholic Bishop was neutral and generally applicable. The principles of property, trust, and agency in Milivojevich were neutral and generally applicable (as then-Justice Rehnquist made clear in his dissent). But the SG's brief deals with these cases quickly, as if they were self-evidently irrelevant. Milivojevich gets just a few lines in the middle of p. 25. The SG quotes an in-chambers solo opinion by Justice Rehnquist, adopting his view of Milivojevich's holding-which, I note parenthetically, is weird because (1) it's just Justice Rehnquist speaking, (2) he wrote the dissent in Milivojevich, and (3) he was the one in Milivojevich who clearly said that the law was neutral and generally applicable. Catholic Bishop is dismissed in a footnote on p. 40. The whole tone of the SG's brief is that these cases are just relics, holdover cases from a bygone era, to be dealt with like mosquitoes that are annoying but pose no real threat. Anyway, there seems to be a big gap between the parties here, both in terms of precedents and in terms of theory. There's this tension as to whether religion really is special that runs through the briefs on the plaintiffs' side. On one hand, it's not. The ADA is neutral and generally applicable; it therefore should apply fully to religious groups. But on the other hand, it still is, kind of. To give one example, the law on reinstatement-plaintiffs should usually be reinstated except when it would be impractical-is neutral and generally applicable too. So where does the constitutional concern with reinstatement come from? Just some thoughts. Hope all is well as the school year begins.. 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 Marty Lederman Sent: Monday, August 15, 2011 9:53 AM To: Law & Religion issues for Law Academics Subject: Hosanna-Tabor and the "Ministerial Exception" Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately.
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