I appreciate Marty and Rick's conversation. As Rick knows, I tend to share his broad viewpoint and I've published on this issue before. Let me suggest that there's a kind of disjuncture in the conversation, one that might be roughly captured by the difference between thinking locally and doctrinally and thinking more structurally and theoretically. Defenders of the ministerial exception (and I include myself among the culprits) doubtless often strike others as unsatisfying because they're talking in big-picture terms, in terms of "essential postulates" and so on, and thus leave all kinds of quite simple doctrinal questions unexamined, or not examined carefully enough. What guidance are they actually offering the courts? Conversely, I do tend to think that some of the more doctrinally oriented opposition to or criticism of the ministerial exception does not adequately fit those arguments into any kind of broader framework or thinking about religious freedom -- including many bedrock statements about religious freedom that can be found in our history and in the caselaw. So there is an element of talking past each other in these conversations sometimes. For my part, I do think there are points of intersection. I think doctrinal criticisms of the ministerial exception raise some good tough questions: how do we determine who is a minister, what counts as "religious" work, what (if any) is the intersection between retaliation and the ministerial exception, and so on. On the other hand, I don't take it as a given that we can reason our way doctrinally and pragmatically as lawyers and judges toward the answers to these questions. Asking, for example, whether teaching specifically religious subjects for 45 minutes a day qualifies one as a minister may seem like a question that we can just answer with the usual analytical tools, but I'm not sure it is; I think that kind of analysis ultimately misses some of the ways in which that kind of dry inquiry misses a good deal of what it means to be a minister. The doctrinal tool that usually comes in to address the courts' efforts to deal with institutions whose nature and scope is not easily captured by judicial analysis is deference; and I take it that many defenders of the ministerial exception think that a number of the doctrinal questions that the exception's critics find so devastating would be much easier if the courts treated many of these threshold questions (including, for instance, the question whether retaliation can itself constitute a departure from the church's fundamental norms of discipline) as requiring substantial deference on the part of the courts toward the views of the religious institution. I understand the arguments against giving churches too much deference in this area and I'm not trying to engage with them right now. I'm just saying that how one's big picture views about the role of religious institutions in society and the limits of state authority can, through tools like deference, have something to say about the resolution of specific cases, including this one. The same seems to go for some of the doctrinal arguments against (in whole or in part) the ministerial exception that I've seen in the briefs and elsewhere. Many of them seem to start with the assumption that the state has a general regulatory authority, especially within any sector of civil rights or employment law; that it would be contrary to this assumption to think of churches as having some kind of legal autonomy or sovereignty; that any exceptions are or should be very narrowly confined and involve balancing rather than some kind of grander jurisdictional limitation; and that when courts, as they sometimes do, treat church governance as something apart from state authority, they do so only for reasons of judicial incompetence rather than for broader reasons, and so any legal resolution of an employment dispute involving a church that (ostensibly) does not directly involve a classic case of judicial incompetence should be acceptable. Again, I think some of those conclusions miss the broader meaning of the Religion Clauses, and that the subsequent doctrinal analysis goes astray when it slips the tethers of the basic meaning of the Religion Clauses in this way. I'm open to disagreement on that part. But I feel I can say with confidence that the doctrinal criticisms of the ministerial exception begin with some broader big-picture assumptions that deserve to be acknowledged, brought out in the open, and questioned. There may be one more payoff on that last point. My sense is that some of the most prominent critics of the ministerial exception think it is not only not constitutionally required, but that it would be either constitutionally impermissible or simply terrible policy if legislatures were given authority to enact the ministerial exception. Others may feel only that it is not constitutionally required, and may feel either that a statutory ministerial exception is an excellent idea or take no position one way or the other. Smith was not the end of the religious exemption discussion, and I don't see why an affirmance in Hosanna-Tabor should be the end of the ministerial exception. I would like to hear more from the critics of the ministerial exception about whether they think, if it is struck down as a constitutional matter, legislatures could enact such an exception, and whether they should. Best to all, Paul
From: rgarn...@nd.edu To: religionlaw@lists.ucla.edu Date: Wed, 17 Aug 2011 10:15:35 -0400 Subject: RE: The Two Forms of "Ministerial Exception" Cases -- a Query Dear Marty, I’m not sure about how you’ve constructed the “run of the mill” and “not one of those sorts of cases” categories – because I think it seems to make an awful lot depend simply on what the government has chosen to identify as a prohibited ground of decision, and it seems to de-emphasizes the nature of the position / relationship at issue – but let’s put that aside. As I see it, for purposes of thinking about what a commitment to religious freedom entails, before we get to what you call the “court’s basic function [of] determin[ing] whether the prohibited consideration motivated the action”, there is the question whether the action in question is part of the selection and application by a religious community of its criteria for religious ministers. As I read your second paragraph, you are open to the possibility that “perhaps” a ministerial exception is warranted – but only perhaps – even in the kinds of cases described in that paragraph. For me, though, it is bedrock – of the “The Sedition Act of 1798 was inconsistent with an attractive understanding of the Freedom of Speech” variety – that an exception is required in such cases. But, I won’t belabor the claim here, because I know you want to get others’ reactions. With respect to your last question, though, about Dale and RFRA. Both do, as you suggest, provide some protections for the decisions of religious communities, when they act as employers. Still, they are not (in my view) sufficient. Two quick thoughts: First, I am not sure I know what Dale really stands for, and I’m not confident that everyone who is arguing “Dale is enough” believes that Dale was rightly decided. Let’s assume, as many of us on this list probably believe, that Dale is wrong (because, say, it confused discriminatory “conduct” with “speech”). What, then, prevents a state government from imposing liability on, say, a (hypothetical) conservative Protestant congregation that refuses to hire a woman, because she is a woman, as its minister (assuming it can do so without entangling itself in “religious” questions)? After all, we are thinking and talking not just about the Court’s doctrines, but about church-state relations and religious freedom more generally. If we were constructing our doctrine, rather than trying to untangle and apply it, how would you proceed in this case? Second – again, sorry to be a broken record -- I do not believe the question that is presented in the core ministerial-exception case (and I think H-T is closer to the core than, it sounds like, you do) should be answered by asking a civil court to decide whether the state has announced a sufficiently “compelling” interest to justify the police-power exercise / expansion that, it seems to me, such a case involves. I have tried to write up this sense / view / intuition of mine in a few places, including this (very) short essay, “Are Churches (Just) Like the Boy Scouts?”: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1017590 Anyway, thanks for the conversation. Best, R Richard W. GarnettProfessor of Law and Associate DeanNotre Dame Law SchoolP.O. Box 780Notre Dame, Indiana 46556-0780 574-631-6981 (w)574-276-2252 (cell) SSRN page Blogs: PrawfsblawgMirror of JusticeLaw, Religion, and Ethics From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, August 17, 2011 8:54 AM To: Law & Religion issues for Law Academics Subject: The Two Forms of "Ministerial Exception" Cases -- a Query Hosanna-Tabor is not a run-of-the-mill "ministerial exception" case; and because of that, it raises a question that I was hoping others on the list could address. The much more common type of ME case, with which we're all familiar, involves a dispute about whether the church or organization in question violated a statutory antidiscrimination norm. For example, (i) the church purports to comply with the prohibition against discrimination on the basis of sex or disability; (ii) the church claims that its employment decision was not based on the proscribed consideration but was instead based on permissible, often religiously-evaluated, considerations; and (iii) the plaintiff asserts that no, in fact the asserted neutral reasons are pretextual, and that the church actually acted on the basis of the prohibited consideration, such as sex or disability. In such cases, the court's basic function is to determine whether the prohibited consideration motivated the action -- a question that might (or might not) entangle the court in evaluations of religious doctrine or assessment of religious cosniderations. Such cases can raise difficult questions: Perhaps they call for some form of ministerial exception; perhaps not. At the very least, some such cases likely require the court to accept the defendant's view of certain religious assessments: As the SG puts it, in such cases "the district court could limit the pretext inquiry to cordon off challenges to the religious organization's religious assessment." (Pages 38-41 of the SG brief have a nice discussion of such issues.) But Hosanna-Tabor is not one of those sorts of cases. It is, instead, the more unusual case where the defendant acknowledges that it acted in violation of the antidiscrimination norm -- the school fired Perich for threatening to file an ADA claim, something the retaliation provision of the ADA itself plainly forbids -- and asserts that it should be able to do so for religious reasons, namely, because it asserts the existence of a religious tenet that called teachers must resolve such ADA claims internally, rather than involving civil authorities. (I have some questions about whether the Synod's rules truly require ADA claims to be resolved internally, but that's for another post -- I assume, as do the respondents, that the court here would accept that representation of religious doctrine as accurate.) This sort of case is also familiar to us, because it has the structure of a claim for exemption from a generally applicable rule where that rule conflicts with religious tenets. Such claims were once raised under Sherbert/Yoder and are now raised regularly under RFRA. Hosanna-Tabor could have asserted a RFRA defense to the EEOC's claim. If it had, and if it demonstrated that the ADA retaliation provision imposed a substantial burden on its religious exercise in this case, then it would be entitled to an exemption as a matter of statutory right unless the government could show that denial of such an exemption were the least restrictive means of furthering a compelling governmental interest. Similarly, under Boy Scouts v. Dale, the school would be entitled to an exemption as a matter of First Amendment law if it could show that application of the ADA rule here would affect in a significant way its ability to advocate its viewpoint, and if that interest were not overridden by a compelling governmental interest. So here's my question: If the school cannot (or chooses not to) demonstrate that the ADA would substantially burden its exercise of religion as applied to the Perich case, or that it would significantly affect its ability to advocate its viewpoint about internal dispute resolution -- or if it made such a showing but a compelling state interest in preserving the ADA anti-retaliation rule overrode that impact on religious exercise or expression of viewpoint -- why should the school nevertheless be entitled to violate the ADA? That is to say: Why aren't RFRA and Dale sufficient in such a case such as thus to account for all religious liberty and associational expression concerns? _______________________________________________ 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.
_______________________________________________ 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.
