Invitation to Howard Law colloquy by Prof. Leslie Griffin on the ministerial exception
My apologies of the cross posting. Prof. Leslie Griffin will be presenting at a colloquy at Howard University School of Law on Tuesday, October 25, 2011 in the Murray Conference Room from 12:15-1:30. Light lunch will be provided for those who RSVP by Monday. The topic is the ministerial exception case currently before the Supreme Court, Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Prof. Griffin is describes her paper this way: "The ministerial exception prohibits most employment-related lawsuits against religious organizations, including age, disability, gender, national origin, race, retaliation and sexual orientation discrimination claims as well as equal pay, breach of contract and state tort violations. My paper re-examines those cases, explains how they could have been litigated without violating the First Amendment, and argues for the abolition of the ministerial exception. I posted a short version of this argument on the American Constitution Society’s blog soon after cert. was granted, see <http://www.acslaw.org/acsblog/abolish-the-ministerial-exception>." Professor Griffin is the inaugural holder of the Larry and Joanne Doherty Chair in Legal Ethics at the University of Houston Law Center. She teaches constitutional law, law and religion, torts, and professional responsibility. She is the author of Law and Religion: Cases and Materials (Foundation Press, 2d ed. 2010) and editor of Law and Religion: Cases in Context (Aspen 2010), which is an anthology providing background information about famous cases in law and religion. Her most recent law review article is Fighting the New Wars of Religion: The Need for a Tolerant First Amendment, 62 Maine Law Review 23 (2010). Before moving to Houston, Professor Griffin clerked for the Honorable Mary M. Schroeder of the U.S. Ninth Circuit Court of Appeals and was an assistant counsel in the Department of Justice's Office of Professional Responsibility, which investigates professional misconduct by federal prosecutors. This should be a most fascinating presentation with opportunity for attendees to engage a leading expert in discussion on this important, timely, controversial topic in an intimate setting. Please RSVP attending to stevenja...@gmail.com. -- Prof. Steven D. Jamar vox: 202-806-8017 Associate Director, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://iipsj.com/SDJ/ "The most precious things one gets in life are not those one gets for money." Albert Einstein ___ 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.
RE: The Two Forms of "Ministerial Exception" Cases -- a Query
I’m sorry I may have misunderstood your earlier comments, Marty. But I still have some misgivings about your position. My problem with point 1 is that I think the reason a law requiring the ordination of female priests is an easy case is because the example involves the ordination of clergy – not because of freedom of association concerns. I’m not sure there are many real world analogies here. If we were talking about some other profession (other than clergy) in which thousands of people attended educational institutions, received degrees, and earned their livelihood and the institutions hiring those professionals (as well as the educational programs that trained them) asserted the freedom of association right to deny certain individuals admission to the educational programs and to refuse to hire those individuals as professionals because of their race, gender, or disability, I think that would be a hard case. It’s an easy case because we are talking about religion and the training and hiring of clergy. Whether the state can demonstrate a compelling state interest under RFRA (or Dale) depends, of course, on whether the courts consider prohibiting race, gender, or disability discrimination in the context of hiring clergy to be a compelling state interest. I suspect that one might prefer a ministerial exception in these cases to the strict scrutiny review required by RFRA for the same reason that Justices Black and Douglas concurred in Brandenburg v. Ohio rather than joining the majority opinion. Based on history, Black and Douglas worried that the application of strict scrutiny might not always be all that strict in cases where speech was considered to be particularly worrisome or unpopular. I have read RFRA decision where the “strict scrutiny” applied was far from rigorous. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, August 17, 2011 9:03 AM To: Law & Religion issues for Law Academics Cc: Law & Religion issues for Law Academics Subject: Re: The Two Forms of "Ministerial Exception" Cases -- a Query I'm sure it must be a function of my lack of clarity, but I think Alan has misunderstood the points I was trying to make about RFRA and Dale, which were simply these: 1. Even construed *narrowly* -- and believe me, I do not favor an expansion of Dale -- these, and other statutory exemptions, will be far more than sufficient to deal with the "parade of horribles," such as Rick's hypo of a state trying to require ordination of a female priest (something that no legislature in our lifetime would ever consider, let alone impose). 2. In a case such as this, if a defendant cannot make the showing necessary under RFRA or Dale, what is the normative or practical case for application of a ME immunity? That is to say, why shouldn't the school at the very least have to satisfy those standards? Sent from my iPhone On Aug 17, 2011, at 11:34 AM, "Brownstein, Alan" mailto:aebrownst...@ucdavis.edu>> wrote: Whatever the merits of, or problems with, the ministerial exception may be in this or other cases , I don't see how Dale and RFRA adequately respond to the issues raised in these cases. First, if one takes Justice Alito's dissenting opinion in Martinez seriously, even the conservative Justices on the Court aren't sure what Dale means and don't read it to mean what it pretty clearly says. Moreover, it is not clear to me that Dale extends to paid employment at all non-profit organizations. Nor is it clear to me that I would prefer a broad reading of Dale to a limited acceptance of the ministerial exception. Some of the arguments I have read arguing against the ministierial exception because of the protection Dale provides to associational freedom would do far more damage to civil rights laws than the ministerial exception ever could. As for RFRA, this is an inadequate substitute for the ministerial exception for the same reason that RFRA is an inadequate substitute for the meaningful protection of free exercise rights. RFRA can be amended, repealed, or overridden by subsequent statutes at the legislature's discretion. Decisions that go to the core of religious freedom and identity, as the most narrow understanding of the ministerial exception clearly does, require constitutional protection. Alan ___ 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.
RE: The Two Forms of "Ministerial Exception" Cases -- a Query
On the second point only, I can imagine two responses. The first you may find too abstract: that some people may believe that whatever rights Dale secures for churches, they should not have to rely on freedom of association to get there. Maybe they just feel that way for abstract or aesthetic reasons, or maybe they believe that relying on Dale rather than the Religion Clauses will leave the latter clauses too thinly interpreted, leading to problems in future cases raising different issues. Second, it depends on how narrowly you apply Dale and in what fashion. Some critics of that opinion read it narrowly on two points: that the association in question must be clearly an expressive association, and that its public expressions, in particular, must be affected by the exclusion of a member/leader/etc. (I'm not speaking to the merits of either of these readings.) I should think any church might meet the first requirement. But if one reads Dale narrowly in the second way, one might be concerned about situations where a "minister's" primary communications are intragroup and someone argues that since the public face of the church won't be affected by that member, the courts should allow his or her discrimination suit to proceed, even if the church itself thinks his or her ministerial duties are important within the church enclave. CC: religionlaw@lists.ucla.edu From: lederman.ma...@gmail.com Subject: Re: The Two Forms of "Ministerial Exception" Cases -- a Query Date: Wed, 17 Aug 2011 12:02:34 -0400 To: religionlaw@lists.ucla.edu I'm sure it must be a function of my lack of clarity, but I think Alan has misunderstood the points I was trying to make about RFRA and Dale, which were simply these: 1. Even construed *narrowly* -- and believe me, I do not favor an expansion of Dale -- these, and other statutory exemptions, will be far more than sufficient to deal with the "parade of horribles," such as Rick's hypo of a state trying to require ordination of a female priest (something that no legislature in our lifetime would ever consider, let alone impose). 2. In a case such as this, if a defendant cannot make the showing necessary under RFRA or Dale, what is the normative or practical case for application of a ME immunity? That is to say, why shouldn't the school at the very least have to satisfy those standards? Sent from my iPhone On Aug 17, 2011, at 11:34 AM, "Brownstein, Alan" wrote: Whatever the merits of, or problems with, the ministerial exception may be in this or other cases , I don't see how Dale and RFRA adequately respond to the issues raised in these cases. First, if one takes Justice Alito's dissenting opinion in Martinez seriously, even the conservative Justices on the Court aren't sure what Dale means and don't read it to mean what it pretty clearly says. Moreover, it is not clear to me that Dale extends to paid employment at all non-profit organizations. Nor is it clear to me that I would prefer a broad reading of Dale to a limited acceptance of the ministerial exception. Some of the arguments I have read arguing against the ministierial exception because of the protection Dale provides to associational freedom would do far more damage to civil rights laws than the ministerial exception ever could. As for RFRA, this is an inadequate substitute for the ministerial exception for the same reason that RFRA is an inadequate substitute for the meaningful protection of free exercise rights. RFRA can be amended, repealed, or overridden by subsequent statutes at the legislature's discretion. Decisions that go to the core of religious freedom and identity, as the most narrow understanding of the ministerial exception clearly does, require constitutional protection. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman [lederman.ma...@gmail.com] Sent: Wednesday, August 17, 2011 7:28 AM To: Law & Religion issues for Law Academics Subject: Re: The Two Forms of "Ministerial Exception" Cases -- a Query Thanks again, Rick. I'm interested in what others have to say, so I'll just offer two quick reactions: 1. True enough, as many of you know, I'm no fan of Dale -- but my point is simply that once that doctrine and RFRA (not to mention other statutory exemptions and the prohibition on courts deciding questions of religious truth) are available, why is there a need for a ministerial exception, at least in this sort of case? 2. As for your hypo -- "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)?" -- I th
Re: The Two Forms of "Ministerial Exception" Cases -- a Query
I'm sure it must be a function of my lack of clarity, but I think Alan has misunderstood the points I was trying to make about RFRA and Dale, which were simply these: 1. Even construed *narrowly* -- and believe me, I do not favor an expansion of Dale -- these, and other statutory exemptions, will be far more than sufficient to deal with the "parade of horribles," such as Rick's hypo of a state trying to require ordination of a female priest (something that no legislature in our lifetime would ever consider, let alone impose). 2. In a case such as this, if a defendant cannot make the showing necessary under RFRA or Dale, what is the normative or practical case for application of a ME immunity? That is to say, why shouldn't the school at the very least have to satisfy those standards? Sent from my iPhone On Aug 17, 2011, at 11:34 AM, "Brownstein, Alan" wrote: > Whatever the merits of, or problems with, the ministerial exception may be in > this or other cases , I don't see how Dale and RFRA adequately respond to the > issues raised in these cases. First, if one takes Justice Alito's dissenting > opinion in Martinez seriously, even the conservative Justices on the Court > aren't sure what Dale means and don't read it to mean what it pretty clearly > says. Moreover, it is not clear to me that Dale extends to paid employment at > all non-profit organizations. Nor is it clear to me that I would prefer a > broad reading of Dale to a limited acceptance of the ministerial exception. > Some of the arguments I have read arguing against the ministierial exception > because of the protection Dale provides to associational freedom would do far > more damage to civil rights laws than the ministerial exception ever could. > > As for RFRA, this is an inadequate substitute for the ministerial exception > for the same reason that RFRA is an inadequate substitute for the meaningful > protection of free exercise rights. RFRA can be amended, repealed, or > overridden by subsequent statutes at the legislature's discretion. Decisions > that go to the core of religious freedom and identity, as the most narrow > understanding of the ministerial exception clearly does, require > constitutional protection. > > Alan > > > From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] > On Behalf Of Marty Lederman [lederman.ma...@gmail.com] > Sent: Wednesday, August 17, 2011 7:28 AM > To: Law & Religion issues for Law Academics > Subject: Re: The Two Forms of "Ministerial Exception" Cases -- a Query > > Thanks again, Rick. I'm interested in what others have to say, so I'll just > offer two quick reactions: > > 1. True enough, as many of you know, I'm no fan of Dale -- but my point is > simply that once that doctrine and RFRA (not to mention other statutory > exemptions and the prohibition on courts deciding questions of religious > truth) are available, why is there a need for a ministerial exception, at > least in this sort of case? > > 2. As for your hypo -- "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)?" -- > > I think it proves my point quite nicely: First of all, few if any statutes > would try to regulate such a purely internal church decision -- presumably, > e.g., it's covered by the title VII BFOQ exception. But assuming > hypothetically that a statute did facially prohibit the church from adhering > to its rule that only men may be ministers, I have absolutely no doubt that > the church would be entitled to en exemption under or RFRA or Dale -- likely > both. See OSG Br. at 31; Perich Br. at 35-36. > > > > On Wed, Aug 17, 2011 at 10:15 AM, Rick Garnett wrote: > 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 r
RE: The Two Forms of "Ministerial Exception" Cases -- a Query
Whatever the merits of, or problems with, the ministerial exception may be in this or other cases , I don't see how Dale and RFRA adequately respond to the issues raised in these cases. First, if one takes Justice Alito's dissenting opinion in Martinez seriously, even the conservative Justices on the Court aren't sure what Dale means and don't read it to mean what it pretty clearly says. Moreover, it is not clear to me that Dale extends to paid employment at all non-profit organizations. Nor is it clear to me that I would prefer a broad reading of Dale to a limited acceptance of the ministerial exception. Some of the arguments I have read arguing against the ministierial exception because of the protection Dale provides to associational freedom would do far more damage to civil rights laws than the ministerial exception ever could. As for RFRA, this is an inadequate substitute for the ministerial exception for the same reason that RFRA is an inadequate substitute for the meaningful protection of free exercise rights. RFRA can be amended, repealed, or overridden by subsequent statutes at the legislature's discretion. Decisions that go to the core of religious freedom and identity, as the most narrow understanding of the ministerial exception clearly does, require constitutional protection. Alan From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman [lederman.ma...@gmail.com] Sent: Wednesday, August 17, 2011 7:28 AM To: Law & Religion issues for Law Academics Subject: Re: The Two Forms of "Ministerial Exception" Cases -- a Query Thanks again, Rick. I'm interested in what others have to say, so I'll just offer two quick reactions: 1. True enough, as many of you know, I'm no fan of Dale -- but my point is simply that once that doctrine and RFRA (not to mention other statutory exemptions and the prohibition on courts deciding questions of religious truth) are available, why is there a need for a ministerial exception, at least in this sort of case? 2. As for your hypo -- "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)?" -- I think it proves my point quite nicely: First of all, few if any statutes would try to regulate such a purely internal church decision -- presumably, e.g., it's covered by the title VII BFOQ exception. But assuming hypothetically that a statute did facially prohibit the church from adhering to its rule that only men may be ministers, I have absolutely no doubt that the church would be entitled to en exemption under or RFRA or Dale -- likely both. See OSG Br. at 31; Perich Br. at 35-36. On Wed, Aug 17, 2011 at 10:15 AM, Rick Garnett mailto:rgarn...@nd.edu>> wrote: 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) cons
RE: The Two Forms of "Ministerial Exception" Cases -- a Query
One add-on about Dale. I think Marty's point reveals something important. I don't know how I feel about Dale either. But I wouldn't want the Catholic Church's priesthood to be forcibly integrated along gender lines. I see the two cases as quite different. And I think everyone does. There were four dissenters in Dale. Do you think any of them would force that on the Catholic Church? Maybe this is fading, but I think people still see religion as distinctive this way. As for the ME being unnecessary because of RFRA, I don't see why we would limit constitutional rights because of existing statutory rights. RFRA could be interpreted badly; it could be changed tomorrow. And there's also state-law claims. RFRA can't apply to them. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Wednesday, August 17, 2011 10:29 AM To: Law & Religion issues for Law Academics Subject: Re: The Two Forms of "Ministerial Exception" Cases -- a Query Thanks again, Rick. I'm interested in what others have to say, so I'll just offer two quick reactions: 1. True enough, as many of you know, I'm no fan of Dale -- but my point is simply that once that doctrine and RFRA (not to mention other statutory exemptions and the prohibition on courts deciding questions of religious truth) are available, why is there a need for a ministerial exception, at least in this sort of case? 2. As for your hypo -- "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)?" -- I think it proves my point quite nicely: First of all, few if any statutes would try to regulate such a purely internal church decision -- presumably, e.g., it's covered by the title VII BFOQ exception. But assuming hypothetically that a statute did facially prohibit the church from adhering to its rule that only men may be ministers, I have absolutely no doubt that the church would be entitled to en exemption under or RFRA or Dale -- likely both. See OSG Br. at 31; Perich Br. at 35-36. On Wed, Aug 17, 2011 at 10:15 AM, Rick Garnett wrote: 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 n
RE: The Two Forms of "Ministerial Exception" Cases -- a Query
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 t
RE: The Two Forms of "Ministerial Exception" Cases -- a Query
A couple responses to Marty. First of all, are we sure that Hosanna-Tabor actually did violate the retaliation laws here? Perich and the SG treat it as a given. Maybe I'm wrong on the facts-and I well could be-but it's not absolutely clear to me. What do I mean? Well, we all agree that Perich threatened to sue the church and then was fired. That obviously looks like retaliation. But there's a lot of evidence that suggests she would have been fired anyway-even if she hadn't threatened to file suit. It's complicated, but as I understand the facts, by the time Perich threatens suit, things had already broken down between the parties. The church had already asked Perich to resign her call. It had already told her that her job would not be available until next year at the earliest. Things were pretty testy between the parties; her job, frankly, seemed in serious jeopardy even then. And then Perich came back to the school, ignoring what the church said, on little notice, demanding to go back to work right away. This apparently caused a scene, at least in the church's eyes. The church saw Perich as insubordinate, and as putting her desires over the school's ministry. The key is that all of this happened before Perich threatened to bring suit. Of course, Perich's threat might have been the final straw. But that creates a difficult and religiously loaded issue of fact. At trial, the big issue will be whether Perich's insubordination was so bad that it alone would have led to the congregation revoking her divine call. But answering that question requires the jury to decide when the divine call of a commissioned minister is properly revoked. A jury is going to have to go deep into the religious views of the LCMS, go through its theology, policies, practices, and history, all the while being coaxed toward different conclusions by the parties. That's the classic inquiry problem, and I see it lurking underneath the waters in the case. Have I gotten things wrong? Second, many parts of the SG's brief impressed me. But I have questions about how pgs. 38-41 are going to work. Here's the key paragraph: In such cases, the district court could limit the pretext inquiry to cordon off challenges to the religious organization's religious assessment. If plaintiff's only pretext evidence consisted of a challenge to that assessment, then the suit might have to be dismissed altogether. See Rweyemamu, 520 F.3d at 200, 209 (affirming dismissal of complaint brought by priest where stated grounds for dismissal were his "insufficient[] devot[ion] to ministry" and poor homilies). I'm unclear how this will really work. Take the case the SG cites, Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008). The case involved an African-American Catholic priest who sues for race discrimination after being fired. The church said he was fired for not being devoted enough to ministry and having bad homilies. Under the SG's approach, Rweyemamu's claims only get dismissed if his only pretext evidence is to the church's assessment. So he cannot challenge the devotion claim or the bad-homily claim. But any other pretext evidence makes the ministerial exception inapplicable. In actual fact, Rweyemamu alleged racial remarks. This means that the ME would not apply. (So why then did the SG apparently approve of Rweyemamu?) But the bigger point is that Rweyemamu could argue anything and avoid the ME, as long he doesn't touch the devotion or homily points. He could say he had better religious qualifications or better evaluations from people in the parish. He could say he did religious counseling better, that he was more spiritual, that he wrote important Catholic works, or that he performed the sacraments better. (Or are some of these inconsistent with the church's "insufficient devotion" claim? Which?) Juries will pass on all sorts of religious questions this way. It seems to me likely that the ME will just disappear this way-that any evidence of pretext good enough to survive summary judgment will probably be good enough to make the ME inapplicable. (Of course, a lot depends on the level of generality here. If the church can say it just fired Rweyemamu because he was just a bad priest and Rweyemamu gets estopped from arguing that global point, then that's a broader ME. But, if we're going to adopt the SG's approach, we wouldn't let the court assert such a broad rationale, right? Is there a "natural" level of generality here to require of the church?) Third, I think you're right about RFRA and Dale. In cases of pure conscience, where the church admits discrimination but claims a religious reason (like with the Catholic Church ordaining women), Dale and RFRA could well be enough. But Dale's
Re: The Two Forms of "Ministerial Exception" Cases -- a Query
Thanks again, Rick. I'm interested in what others have to say, so I'll just offer two quick reactions: 1. True enough, as many of you know, I'm no fan of *Dale *-- but my point is simply that once that doctrine and RFRA (not to mention other statutory exemptions and the prohibition on courts deciding questions of religious truth) are available, why is there a need for a ministerial exception, at least in this sort of case? 2. As for your hypo -- "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)?" -- I think it proves my point quite nicely: First of all, few if any statutes would try to regulate such a purely internal church decision -- presumably, e.g., it's covered by the title VII BFOQ exception. But assuming hypothetically that a statute did facially prohibit the church from adhering to its rule that only men may be ministers, I have absolutely no doubt that the church would be entitled to en exemption under or RFRA or *Dale* -- likely both. See OSG Br. at 31; Perich Br. at 35-36. On Wed, Aug 17, 2011 at 10:15 AM, Rick Garnett wrote: > 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. Garnett > > Professor of Law and Associate Dean > > Notre Dame Law School > > P.O. Box 780 > > Notre Dame, Indiana 46556-0780 > > ** ** > > 574-631-6981 (w) > > 574-276-2252 (cell) > > ** ** >
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. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> 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
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.
Re: Hosanna-Tabor and the "Ministerial Exception"
Thanks, Rick. I agree, as a general matter at least, that the debate involves "at some point thinking about the limits on government power." I had suggested that those limits should be understood as involving matters, in some important sense internal to religious organizations, in which the state has no legitimate *interest* (such as who should receive sacraments), and/or in which the state has no *competence* (such as determining who is * deserving* of such sacraments -- a decision that turns on religious questions that the state cannot possibly assess). In response, you appear to suggest that even where the state does have an interest, and I assume even where the state has competence to adjudicate the question at hand (as in Hosanna-Tabor itself, where it is *conceded* that the school fired Perich because she threatened to exercise her ADA rights), there might still be some cases where the state simply "lacks power over [the] matter." I confess that I'm not sure what you're getting at here, other than to restate the question of how far the ministerial immunity should extend. Why, exactly, does the state lack "power," in a constitutional sense -- * without* any need for balancing -- over a question in which it has obviously has a significant interest (such as ensuring that employees employed in positions offering commercial services to the public are not discharged for exercising their statutory rights), and about which it would not need to adjudicate any religious questions about which it lacks competence? Perhaps an exception is constitutionally compelled in some such cases, because of the balance of state and organizational interests -- that's the question presented in H-T; but I understand you to be making a more fundamental point about subject matters that are simply beyond the constitutional authority of the state and federal governments, even where such state interests and competence are present. Is that correct? If so, what's the basis for the "disempowerment"? Thanks again, Marty On Tue, Aug 16, 2011 at 6:21 PM, Rick Garnett wrote: > Dear Marty, > > My aim was a pretty modest one: Just to flag the possibility that the > ministerial-exception debate involves, at some ponit, thinking about the > limits on government power, and not just the costs and benefits of > government action. As for the question, where does the H-T case itself fit > . . . I don't agree with you that this case is a "far cry" from what I take > to be the case-at-the-core, but I suspect that is because you and I disagree > about the extent to which Ms. Perich's position is a ministerial one. (And, > I suspect we won't resolve that disagreement here!) > > I wonder, is it so clear that the state lacks any "interest" in "internal > religious matters"? I'm not sure. I guess -- sorry for being a broken > record -- I'd rather say that it lacks power over such matters. > > Hope you are well -- R > > > Richard W. Garnett > Professor of Law & Associate Dean > Notre Dame Law School > P.O. Box 780 > Notre Dame, IN 46556-0780 > > 574-631-6981 (office) > 574-631-4197 (fax) > -- > *From:* religionlaw-boun...@lists.ucla.edu [ > religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman [ > lederman.ma...@gmail.com] > *Sent:* Tuesday, August 16, 2011 5:28 PM > > *To:* Law & Religion issues for Law Academics > *Subject:* Re: Hosanna-Tabor and the "Ministerial Exception" > > Rick: I'm not exactly sure whether you mean to suggest that > Hosanna-Tabor itself is an example of your second sort of case, i.e., as > involving something "the state lacks the power to regulate." > > I think we would all agree with you that, at least without more, the state > "lacks the power" to "tell a Roman Catholic bishop that he had to confer the > sacrament of Holy Orders on a person whom that Bishop did not think was > suitable" -- not only because that decision would almost certainly involve a > question of religious doctrine or suitability about which the state has no > competence to opine, but also, and perhaps more fundamentally, because the > state simply has no real interest in regulating such decisions. > > And, as it turns out, we really don't have to worry about such cases: > Because states have no interest in such internal religious matters as > conferral of sacraments, states in practice have not even attempted (so far > as I know) to regulate such conferrals. (I would note, however, for what > it's worth, that Part I of the Employment Lawyers amicus brief -- > http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_responden
RE: Hosanna-Tabor and the "Ministerial Exception"
Dear Marty, My aim was a pretty modest one: Just to flag the possibility that the ministerial-exception debate involves, at some ponit, thinking about the limits on government power, and not just the costs and benefits of government action. As for the question, where does the H-T case itself fit . . . I don't agree with you that this case is a "far cry" from what I take to be the case-at-the-core, but I suspect that is because you and I disagree about the extent to which Ms. Perich's position is a ministerial one. (And, I suspect we won't resolve that disagreement here!) I wonder, is it so clear that the state lacks any "interest" in "internal religious matters"? I'm not sure. I guess -- sorry for being a broken record -- I'd rather say that it lacks power over such matters. Hope you are well -- R Richard W. Garnett Professor of Law & Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556-0780 574-631-6981 (office) 574-631-4197 (fax) From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman [lederman.ma...@gmail.com] Sent: Tuesday, August 16, 2011 5:28 PM To: Law & Religion issues for Law Academics Subject: Re: Hosanna-Tabor and the "Ministerial Exception" Rick: I'm not exactly sure whether you mean to suggest that Hosanna-Tabor itself is an example of your second sort of case, i.e., as involving something "the state lacks the power to regulate." I think we would all agree with you that, at least without more, the state "lacks the power" to "tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable" -- not only because that decision would almost certainly involve a question of religious doctrine or suitability about which the state has no competence to opine, but also, and perhaps more fundamentally, because the state simply has no real interest in regulating such decisions. And, as it turns out, we really don't have to worry about such cases: Because states have no interest in such internal religious matters as conferral of sacraments, states in practice have not even attempted (so far as I know) to regulate such conferrals. (I would note, however, for what it's worth, that Part I of the Employment Lawyers amicus brief -- http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_respondentamcunela.authcheckdam.pdf -- appears to provide a pretty compelling account of how U.S. courts regularly adjudicated actual ministers' suits against churches quite regularly throughout most of our early history -- in contract claims and the like -- and sometimes ordered reinstatement without any suggestion of constitutional barriers.) But that's a far cry from this case, right? Here, Perich threathened to file an ADA suit when she suspected that the school would not allow her to teach because of her disability. The school thereafter concededly fired her from her teaching job because she threatened to file such an ADA claim -- what would be a clear violation of the ADA anti-retailiation provision if there were no constitutional barrier. Whatever else may be true about the case and the propriety of applying the ministerial exception, surely the state does not lack an interest, or "lack the power," to prohibit firing from a teaching position on the basis of disability, or on the basis of retaliation for threathening to enforce that antidiscrimination norm -- at the very least (as here) where the teacher's duties included the teaching of secular subjects in a school offering services for a fee to the public as a whole. That is to say, this is a far cry (isn't it?) from the case you posit, in which the state would (as no state does) try to regulate the question of who is worthy to conferral of sacrements. The state's legitimate interest in that case would be very difficult to identify and defend. But here there is no such problem. On Tue, Aug 16, 2011 at 12:57 PM, Rick Garnett mailto:rgarn...@nd.edu>> wrote: Dear colleagues, For what it’s worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci’s statement that those of us who contend that “church autonomy” is a crucial dimension of religious freedom through law are claiming “immunity from the law [for religious communities] because they are religious.” As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I “hear” the debate, it seems to me that those of us who think “church autonomy” is part of religi
Re: Hosanna-Tabor and the "Ministerial Exception"
Rick: I'm not exactly sure whether you mean to suggest that Hosanna-Tabor itself is an example of your second sort of case, i.e., as involving something "the state lacks the power to regulate." I think we would all agree with you that, at least without more, the state "lacks the power" to "tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable" -- not only because that decision would almost certainly involve a question of religious doctrine or suitability about which the state has no competence to opine, but also, and perhaps more fundamentally, because the state simply has no real interest in regulating such decisions. And, as it turns out, we really don't have to worry about such cases: Because states have no interest in such internal religious matters as conferral of sacraments, states in practice have not even attempted (so far as I know) to regulate such conferrals. (I would note, however, for what it's worth, that Part I of the Employment Lawyers amicus brief -- http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_respondentamcunela.authcheckdam.pdf -- appears to provide a pretty compelling account of how U.S. courts regularly adjudicated actual ministers' suits against churches quite regularly throughout most of our early history -- in contract claims and the like -- and sometimes ordered reinstatement without any suggestion of constitutional barriers.) But that's a far cry from this case, right? Here, Perich threathened to file an ADA suit when she suspected that the school would not allow her to teach because of her disability. The school thereafter concededly fired her from her teaching job because she threatened to file such an ADA claim -- what would be a clear violation of the ADA anti-retailiation provision if there were no constitutional barrier. Whatever else may be true about the case and the propriety of applying the ministerial exception, surely the state does not lack an interest, or "lack the power," to prohibit firing from a teaching position on the basis of disability, or on the basis of retaliation for threathening to enforce that antidiscrimination norm -- at the very least (as here) where the teacher's duties included the teaching of secular subjects in a school offering services for a fee to the public as a whole. That is to say, this is a far cry (isn't it?) from the case you posit, in which the state would (as no state does) try to regulate the question of who is worthy to conferral of sacrements. The state's legitimate interest in that case would be very difficult to identify and defend. But here there is no such problem. On Tue, Aug 16, 2011 at 12:57 PM, Rick Garnett wrote: > Dear colleagues, > > ** ** > > For what it’s worth (disclosure: I helped on an amicus brief, for the > church-school, in the H-T case), and with respect to Marci’s statement that > those of us who contend that “church autonomy” is a crucial dimension of > religious freedom through law are claiming “immunity from the law [for > religious communities] because they are religious.” As I see it, the claim > is one about the limits of secular, political authority, and not only about > carve-outs (the shapes and existence of which are determined by > interest-balancing) from otherwise applicable police powers. > > ** ** > > As I “hear” the debate, it seems to me that those of us who think “church > autonomy” is part of religious freedom are saying two complementary but > distinct things (I’m putting aside questions regarding what we say about > lines of cases, particular Clauses, etc.): First, in some cases, there are > good reasons – having to do with institutional competence, the > no-entanglement rule, interest-balancing, etc. -- to limit the role of the > secular political authority in resolving and regulating disputes between > “ministers” and religious communities (acting as employers). Who “counts” > as a minister? Which religious communities are covered? What are the best > procedures to employ in order to operationalize the “good reasons” mentioned > above? These and others are questions that, as I think Paul and Marci have > both said, involve balancing, trade-offs, predictions, etc.**** > > ** ** > > But, at least for me, there is another thing that is being said, and should > be said: It’s not all or only about balancing. In my view, the > ministerial-exception debate is a reminder that, at some point, the state’s > interests, and its power, should run out. This is not a claim about > “immunity”, or special-purpose carve-outs from the application of otherwise > applicable public authority; it is a claim that there are some things (not > that many, I am inc
Re: Hosanna-Tabor and the "Ministerial Exception"
If the Court upholds a ministerial exception, it is only fair for the federal government and the states to amend their anti-discrimination laws to require employers otherwise covered to disclose to their religious employees that they will not have the protection of the anti-discrimination laws if they accept the employment of this religious organization. We live in a culture where there is a basic assumption that it is wrong to discriminate. Employees in these cases are typically in shock that the religious organization could have a First Amendment or any other defense to otherwise illegal discrimination. I have never spoken to Ms. Perich, but I can imagine that it came as a surprise to her that her employer (1) would engage in disability discrimination against her, and (2) then raise the First Amendment to permit such discrimination. The same is true in the cases involving gender and race discrimination (especially where the original appointment had no gender/race requirement). (If anyone thinks that religious organizations do not engage in invidious gender or race discrimination not motivated by their religious beliefs, I would be happy to put you in touch with various victims who would say otherwise.) A disclosure requirement would be the least that would need to be done to level the playing field between religious organizations and their employees. Marci In a message dated 8/16/2011 4:28:59 P.M. Eastern Daylight Time, howard.fried...@utoledo.edu writes: 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, ___ 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.
RE: Hosanna-Tabor and the "Ministerial Exception"
Chris-- There are a number of statements in the SG's brief that suggest the government is limiting its argument to the anti-retaliation provisions, without taking a position beyond that. E.g. the policy arguments in part III of the brief all focus on policies relating to retaliation claims. The headings on parts I. and II. of the brief refer only to the anti-retaliation provisions. And at pp. 19- 20, the brief argues: **In particular, petitioner urges the Court to adopt a categorical rule that would bar adjudication of any suit including the ADA retaliation suit at issue in this case concerning a religious employers termination of an employee who performs important religious functions This Court, however, has repeatedly made clear that it will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. ... Although significant constitutional questions may arise in other cases concerning the application of the civil rights laws to religious entities, neither the Free Exercise Clause, nor the right to freedom of association, nor the Establishment Clause, stands as an impediment to adjudication of Perichs claim that she was unlawfully terminated from her teaching position for exercising her rights under the ADA.** As for your issue of religion as voluntary, that is certainly so for adherents of a faith. But for employees who rely on religious institutions for their livelihood-- often under contracts with them-- it is more than just a voluntary relationship. The civil rights laws are exceptions to the common law employment-at-will doctrine. A broad ministerial exception is a rule that religious institutions (and only such institutions) are constitutionally entitled to rely on the employment at will doctrine without legislative modification. There is good reason for that kind of rule when the issue is whether a teacher's views conform to beliefs of the church, or when the issue is whether congregants like the minister's sermon or the cantors voice. There is reason for it when the denomination only recognizes male clergy and refuses to hire a woman pastor (or priest or rabbi or imam). It may even be that an exception is arguably justified for the church that espouses white supremacist racial doctrines when it refuses to hire clergy that are not Caucasian. But it seems to me there is less reason to give a pass to the church board that is bigoted and refuses to hire-- or fires-- an employee on racial grounds in the face of formal church doctrine that calls for racial equality. There the only justification is that usually there is a dispute about whether the firing was racially motivated, and subjecting the church to a remedy (particularly of reinstatement) when the court's determination on motive could have been erroneous is a risk we are unwilling to impose. Howard Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Tue 8/16/2011 1:49 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Hosanna-Tabor and the "Ministerial Exception" 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
RE: Hosanna-Tabor and the "Ministerial Exception"
I haven't given the question a lot of thought, but it would seem to me that that the "limits of the state police powers" argument would probably be grounded on a secular purpose requirement. Government cannot interfere with the decision to hire or fire someone as clergy for exclusively and intrinsically religious reasons (e.g. G-d would prefer the church to appoint candidate A rather than candidate B; Candidate A is a better spiritual leader for the congregation) Beyond that, when the state asserts a rational health, safety, general welfare or moral justification for its actions, it is hard for me to see how the "limits of the state powers" arguments comes into play. Then, I think, we are in the world of institutional-competence / no-entanglement / interest-balancing / arguments for shielding the church against state power. Whether a lack of secular purpose analysis would give you a different answer than the institutional-competence / no-entanglement / interest-balancing / analysis in some real world circumstances would probably depend on how the secular purpose requirement is interpreted and enforced. Were you thinking that there are situations where the state lacks regulatory power to intrude into church decisions even though the state has a rational health, safety, general welfare or moral purpose for its actions. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 10:49 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Dear Alan, I don't think I was getting to the level of distinct rules; I was just trying to separate out (or, at least distinguish) two ways of thinking about the problem. My "gut"-level sense is that, in practice, the institutional-competence / no-entanglement / interest-balancing / "is an exemption warranted, all things considered?" approach will usually yield (what I would regard as) the right answer in those (rare) circumstances when we are dealing with the limits (not the advisability of exercising) the state's police powers. What do you think? Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Tuesday, August 16, 2011 1:39 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding "church autonomy." One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the "autonomy" of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that "church autonomy" is a crucial dimension of religious freedom through law are claiming "immunity from the law [for religious communities] because they are religious." As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I "hear" the debate, it seems to me that those of us who think &quo
RE: Hosanna-Tabor and the "Ministerial Exception"
Dear Alan, I don't think I was getting to the level of distinct rules; I was just trying to separate out (or, at least distinguish) two ways of thinking about the problem. My "gut"-level sense is that, in practice, the institutional-competence / no-entanglement / interest-balancing / "is an exemption warranted, all things considered?" approach will usually yield (what I would regard as) the right answer in those (rare) circumstances when we are dealing with the limits (not the advisability of exercising) the state's police powers. What do you think? Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Tuesday, August 16, 2011 1:39 PM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding "church autonomy." One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the "autonomy" of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that "church autonomy" is a crucial dimension of religious freedom through law are claiming "immunity from the law [for religious communities] because they are religious." As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I "hear" the debate, it seems to me that those of us who think "church autonomy" is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between "ministers" and religious communities (acting as employers). Who "counts" as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the "good reasons" mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about "immunity", or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow "ou
RE: Hosanna-Tabor and the "Ministerial Exception"
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 applica
RE: Hosanna-Tabor and the "Ministerial Exception"
Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding "church autonomy." One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the "autonomy" of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law & Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the "Ministerial Exception" Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that "church autonomy" is a crucial dimension of religious freedom through law are claiming "immunity from the law [for religious communities] because they are religious." As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I "hear" the debate, it seems to me that those of us who think "church autonomy" is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between "ministers" and religious communities (acting as employers). Who "counts" as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the "good reasons" mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about "immunity", or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow "outweigh" the interests of the person demanding the sacrament and / or the interests of the state in vindicating either that person's interests or its own (whatever they might be), thereby warranting, all things considered, an exemption. It is, instead, that a government constitutionally committed to religious freedom is / should be one that lacks, and does not claim, the authority to supervise the Bishop's decision in this matter. Again, I am inclined to think that most of the time, when we talk about religious freedom, we are talking about, and it makes sense to talk about, the costs and benefits of exemptions from otherwise justifiable police-power regulations. But I also think it makes sense - even if we rarely want or need to invoke - the limits-of-secular-power dimension of the religious-freedom conversation. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> _
RE: Hosanna-Tabor and the "Ministerial Exception"
Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that "church autonomy" is a crucial dimension of religious freedom through law are claiming "immunity from the law [for religious communities] because they are religious." As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I "hear" the debate, it seems to me that those of us who think "church autonomy" is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between "ministers" and religious communities (acting as employers). Who "counts" as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the "good reasons" mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about "immunity", or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow "outweigh" the interests of the person demanding the sacrament and / or the interests of the state in vindicating either that person's interests or its own (whatever they might be), thereby warranting, all things considered, an exemption. It is, instead, that a government constitutionally committed to religious freedom is / should be one that lacks, and does not claim, the authority to supervise the Bishop's decision in this matter. Again, I am inclined to think that most of the time, when we talk about religious freedom, we are talking about, and it makes sense to talk about, the costs and benefits of exemptions from otherwise justifiable police-power regulations. But I also think it makes sense - even if we rarely want or need to invoke - the limits-of-secular-power dimension of the religious-freedom conversation. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Tuesday, August 16, 2011 11:47 AM To: religionlaw@lists.ucla.edu Subject: Re: Hosanna-Tabor and the "Ministerial Exception" Paul-- I don't disagree with the substance of what you say. Absolute liberty, or autonomy, is not the US Constitution's role (except when we are talking about the right to believe). There is always the possibility that the government can justify burdens on liberty. What "church autonomy" means for those who advocate for it, as indicated in the LDS/RCC bishops's HT brief, is immunity from the law, because they are religious. Their interpretation is much closer to the "licentiousness" interpretation of "liberty" firmly rejected by the framing and founding generations. The fact they are using it in sexual misconduct cases itself should be revealing. (Look at the amicus brief filed by the LDS in a footnote in my amicus brief (there is a web address). That case involved a woman alleging she was sexually assaulted by a cantor. She went to her rabbi, who she says then sexually propositioned her. The LDS filed an amicus brief, joined by RCC Bishops, arguing for "autonomy" from the law in that c
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
Re: Hosanna-Tabor and the "Ministerial Exception"
Paul-- I don't disagree with the substance of what you say. Absolute liberty, or autonomy, is not the US Constitution's role (except when we are talking about the right to believe). There is always the possibility that the government can justify burdens on liberty. What "church autonomy" means for those who advocate for it, as indicated in the LDS/RCC bishops's HT brief, is immunity from the law, because they are religious. Their interpretation is much closer to the "licentiousness" interpretation of "liberty" firmly rejected by the framing and founding generations. The fact they are using it in sexual misconduct cases itself should be revealing. (Look at the amicus brief filed by the LDS in a footnote in my amicus brief (there is a web address). That case involved a woman alleging she was sexually assaulted by a cantor. She went to her rabbi, who she says then sexually propositioned her. The LDS filed an amicus brief, joined by RCC Bishops, arguing for "autonomy" from the law in that case.) If they were arguing for a "measure of autonomy" in the courts, I would not feel so compelled to focus a light on its usage. "Ordered liberty" captures the notion of measured liberty or freedom far better than "autonomy." Just a footnote on abortion. Women have not had "autonomy" from the medical establishment in the abortion context -- the right has always been mediated somewhat and never involved solely the question of a woman's power over her body. But that is for a different thread. Marci In a message dated 8/16/2011 10:58:45 A.M. Eastern Daylight Time, phorw...@hotmail.com writes: To analogize roughly to the abortion cases (and it's just an analogy, nothing more), the courts have said that women have a right to obtain abortions, and one somewhat undertheorized piece of that conclusion is that women are entitled to some autonomy in making important decisions. But it has also said that this right must necessarily be subject to limits. One could argue on this basis that because women's right to an abortion can be limited by the state, a limit that is subject to weighing by the courts, any talk of women's autonomy must be illusory -- doesn't autonomy mean we don't get to ask any such questions at all? -- and these cases must be all about ordered liberty. But that would seem to me to be the wrong way of thinking about it. It would be better to say that the argument then concerns the degree to which women are entitled to decision-making autonomy within a system of law that imposes some outside limits. Really, this is the question we ask every time we balance individual rights against state needs -- and, either at a categorical level or on a case-by-case basis, we *always* do just that. Claims of individual or institutional autonomy are always balanced against other claims -- including, to give one relevant example here, claims that the state has a legitimate interest in addressing child sexual abuse and other serious wrongs. That doesn't mean there's no such thing as autonomy; it just means that autonomy is not an unlimited concept. To say some claim is subject to the principle of "ordered liberty" doesn't end the conversation, because what constitutes ordered liberty is the very point in contention. Similarly, in the ministerial exception cases, unless one is arguing either that the ministerial exception can't exist at all or that it is absolute, the question is the extent to which some degree of autonomy for religious institutions is consistent with some degree of acceptable state regulation for permissible ends. It is consistent with this view to believe that churches must be allowed some degree of control over employment decisions in core cases but that Perich's case falls within the scope of state regulation; it's also consistent with this view to believe that churches may be subject to some degree of regulation of their employment decisions but that Hosanna-Tabor's decision to dismiss Perich falls within the scope of religious freedom. We may certainly invoke concepts like autonomy and ordered liberty in trying to resolve these issues, but virtually everyone is already going to be engaged in balancing the two, however clumsily, and the invocation of these concepts certainly won't answer any difficult questions. ___ 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.
RE: Hosanna-Tabor and the "Ministerial Exception"
I think Marci has raised many valuable practical and theoretical questions about "church autonomy," both at the level of doctrine and at the level of theory. I'm not trying to address all that here. Nonetheless, I think the argument that "the Court has repeatedly followed the principle of 'ordered liberty' as opposed to 'autonomy'" tends to state the question more than to answer it. To analogize roughly to the abortion cases (and it's just an analogy, nothing more), the courts have said that women have a right to obtain abortions, and one somewhat undertheorized piece of that conclusion is that women are entitled to some autonomy in making important decisions. But it has also said that this right must necessarily be subject to limits. One could argue on this basis that because women's right to an abortion can be limited by the state, a limit that is subject to weighing by the courts, any talk of women's autonomy must be illusory -- doesn't autonomy mean we don't get to ask any such questions at all? -- and these cases must be all about ordered liberty. But that would seem to me to be the wrong way of thinking about it. It would be better to say that the argument then concerns the degree to which women are entitled to decision-making autonomy within a system of law that imposes some outside limits. Really, this is the question we ask every time we balance individual rights against state needs -- and, either at a categorical level or on a case-by-case basis, we *always* do just that. Claims of individual or institutional autonomy are always balanced against other claims -- including, to give one relevant example here, claims that the state has a legitimate interest in addressing child sexual abuse and other serious wrongs. That doesn't mean there's no such thing as autonomy; it just means that autonomy is not an unlimited concept. To say some claim is subject to the principle of "ordered liberty" doesn't end the conversation, because what constitutes ordered liberty is the very point in contention. Similarly, in the ministerial exception cases, unless one is arguing either that the ministerial exception can't exist at all or that it is absolute, the question is the extent to which some degree of autonomy for religious institutions is consistent with some degree of acceptable state regulation for permissible ends. It is consistent with this view to believe that churches must be allowed some degree of control over employment decisions in core cases but that Perich's case falls within the scope of state regulation; it's also consistent with this view to believe that churches may be subject to some degree of regulation of their employment decisions but that Hosanna-Tabor's decision to dismiss Perich falls within the scope of religious freedom. We may certainly invoke concepts like autonomy and ordered liberty in trying to resolve these issues, but virtually everyone is already going to be engaged in balancing the two, however clumsily, and the invocation of these concepts certainly won't answer any difficult questions. From: hamilto...@aol.com Date: Tue, 16 Aug 2011 10:22:42 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu Nelson-- Just a historical note-- there really is no "church autonomy doctrine" at the Supreme Court. It's not a phrase or doctrine the Court has adopted, particularly after the long line of free exercise cases that culminate in Smith, and Jones v. Wolf. From my research, the phrase was coined during litigation primarily by the bishops of the Roman Catholic and LDS Churches, perhaps drawing on an article using the term by Doug. Of course, there are other theorists who have argued for "autonomy" under free speech, but the Religion Clause issues here extend beyond speech. In contrast, the Court has repeatedly followed the principle of "ordered liberty" as opposed to "autonomy." The SG is actually arguing out of the ordered liberty tradition, while the Petr and some of the amici in support are taking the more extreme position. To see an excellent point-counterpoint of the 2 approaches, see the 2 decisions in Petruska in the 3d Cir. Marci FWIW--I wrote a brief in HT for a number of child protection groups, because "church autonomy" has been invoked in this case and is routinely invoked in the clergy sex abuse cases to avoid discovery and liability for culpability for child sex abuse. A holding in HT could affect positively or negatively the child sex abuse cases. In a message dated 8/16/2011 10:10:20 A.M. Eastern Daylight Time, l...@wayne.edu writes: Marty asked for opinions on the briefs. Here is what I’ve been thinking, for whatever it’s worth (pr
Re: Hosanna-Tabor and the "Ministerial Exception"
Nelson-- Just a historical note-- there really is no "church autonomy doctrine" at the Supreme Court. It's not a phrase or doctrine the Court has adopted, particularly after the long line of free exercise cases that culminate in Smith, and Jones v. Wolf. From my research, the phrase was coined during litigation primarily by the bishops of the Roman Catholic and LDS Churches, perhaps drawing on an article using the term by Doug. Of course, there are other theorists who have argued for "autonomy" under free speech, but the Religion Clause issues here extend beyond speech. In contrast, the Court has repeatedly followed the principle of "ordered liberty" as opposed to "autonomy." The SG is actually arguing out of the ordered liberty tradition, while the Petr and some of the amici in support are taking the more extreme position. To see an excellent point-counterpoint of the 2 approaches, see the 2 decisions in Petruska in the 3d Cir. Marci FWIW--I wrote a brief in HT for a number of child protection groups, because "church autonomy" has been invoked in this case and is routinely invoked in the clergy sex abuse cases to avoid discovery and liability for culpability for child sex abuse. A holding in HT could affect positively or negatively the child sex abuse cases. In a message dated 8/16/2011 10:10:20 A.M. Eastern Daylight Time, l...@wayne.edu writes: 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
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. ___ To
Re: Hosanna-Tabor and the "Ministerial Exception"
Preliminarily, let me say that I sincerely hope there is a wide variety of views among law professors on this issue, and most every other issue in our field. The issue in the Hosanna Tabor in my view is not whether there will be a ministerial exception, but, as Doug puts it, where to draw the line. There are many places to draw the line regardless of whether RFRA, Dale, and the prohibition on courts interpreting religious doctrine are in place. There are also the other relevant doctrines, e.g., courts may question sincerity, even if they may not question doctrine, and in many of these cases there are good reasons to question the sincerity of the proffered reason for the adverse employment action. There is also the question whether accommodation can be appropriate if the religious organization does not have a religious belief that is burdened. The Petruska case is a great example-- she was hired as a chaplain, and there was no prohibition on women chaplains at the Catholic university. Then she was told she was being fired because she was a woman. That is gender discrimination untethered to an actual religious belief involving gender. Judge Becker's original opinion in Petruska says that without an underlying religious belief, the ministerial exception is not legitimate. The subsequent panel opinion, which vacated his decision and was entered after he passed away, treats the issues as simply untouchable by the courts. The EEOC's brief is one of the most intelligently argued briefs filed in a religion case by the DOJ in recent memory, so there is a lot for the Court to consider, which makes it impossible to predict outcome. Marci In a message dated 8/15/2011 12:13:54 P.M. Eastern Daylight Time, lederman.ma...@gmail.com writes: That's true -- that there should be no ministerial exemption at all is probably "not the position of most professors who teach and work directly in law and religion." (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is "a very different and nearly unanimous consensus about this case . . ." ___ 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.
RE: Hosanna-Tabor and the "Ministerial Exception"
Mea culpa! From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 12:09:10 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu That's true -- that there should be no ministerial exemption at all is probably "not the position of most professors who teach and work directly in law and religion." (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is "a very different and nearly unanimous consensus about this case . . ." On Mon, Aug 15, 2011 at 11:59 AM, Paul Horwitz wrote: I'm certainly happy to plead guilty to overenthusiastic writing; it's been known to happen on blogs, although I try to avoid it. I would note, though, that the position taken in the brief I mention is not just that the ministerial exception raises difficulties of the kinds Marty mentions below, but that it should be eliminated altogether. My claim may still be too extravagant, but I still feel fairly comfortable saying that this is not the position of most professors who teach and work directly in law and religion. Best, Paul Date: Mon, 15 Aug 2011 11:25:30 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman wrote: Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is "a very different and nearly unanimous consensus about this case . . . among those who spend most of their time working on these issues from a law and religion perspective." Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law & religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under Boy Scouts v. Dale (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the "Law and Religion Professors" brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the "Law and Religion Professors" brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was
Re: Hosanna-Tabor and the "Ministerial Exception"
That's true -- that there should be no ministerial exemption at all is probably "not the position of *most* professors who teach and work directly in law and religion." (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) *Dale*, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is "a *very *different and *nearly unanimous consensus* *about this case* . . ." On Mon, Aug 15, 2011 at 11:59 AM, Paul Horwitz wrote: > I'm certainly happy to plead guilty to overenthusiastic writing; it's been > known to happen on blogs, although I try to avoid it. I would note, though, > that the position taken in the brief I mention is not just that the > ministerial exception raises difficulties of the kinds Marty mentions below, > but that it should be eliminated altogether. My claim may still be too > extravagant, but I still feel fairly comfortable saying that this is not the > position of most professors who teach and work directly in law and > religion. > > Best, > > Paul > > -- > Date: Mon, 15 Aug 2011 11:25:30 -0400 > Subject: Re: Hosanna-Tabor and the "Ministerial Exception" > From: icl...@law.gwu.edu > > To: religionlaw@lists.ucla.edu > > Marty is certainly correct to question the conclusion in Paul's post. Doug > Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a > co-author of one of the leading amicus briefs on the petitioner's side. I > don't count Bob Tuttle or me in that league, but our most recent writing on > this subject might give some comfort (and some unease) to both sides. I > think the Hosanna-Tabor case has been superbly briefed on both sides. I > expect the case will prove quite difficult for the Supreme Court, and will > defy any easy prediction about the outcome or the line-up of Justices. > > On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman > wrote: > > Paul's Prawfsblawg post is, I think, fairly described as trying to suggest > that the Corbin/Griffin amicus brief (which he praises) does not fairly > reflect the view of most professors who teach Law and Religion, and that, > instead, there is "a very different and *nearly unanimous consensus* about > this case . . . among those who spend most of their time working on these > issues from a law and religion perspective." > > Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus > among law & religion scholars that a religious school should have complete > immunity from employment law rules, including anti-retaliation rules, even > in cases where (i) the position in question involves secular functions in a > commercial setting; (ii) the school has not demonstrated a right to an > exemption under *Boy Scouts v. Dale* (either because there's no > substantial impact on its expression or because the state interest outweighs > that impact, or both); and (iii) the school has not demonstrated a right to > an exemption under RFRA (either because there's no significant burden on > religious exercise or because the state interest outweighs the burden, or > both)? > > I'm not aware of anything like a consensus on that question. Not even sure > what the majority view would be among such scholars. > > On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: > > I have a brief and basically non-substantive post up on Prawfsblawg > today about the "Law and Religion Professors" brief. Also, the Northwestern > University Law Review Colloquy will be running several pieces on the case; > they should be up on the web site by around the start of Term. I have read > some but not all of the briefs (and I haven't read Marci's yet; my > apologies). I certainly think Caroline Corbin and Leslie Griffin, the > writers of the "Law and Religion Professors" brief, do an excellent job of > giving the best case against the ministerial exception from a doctrinal > position, although I also think their position is both too closely focused > on the doctrine and not focused enough on broader history (and even within > the doctrine I think they misread Jones v. Wolf), and too consequentialist. > Again, though, I certainly applaud them for putting their best arguments > forward -- although they haven't changed my mind. > > Paul Horwitz > > -- > From: lederman.ma...@gmail.com > Date: Mon, 15 Aug 2011 09:53:06 -0400 > Subject: Hosanna-Tabor and the "
RE: Hosanna-Tabor and the "Ministerial Exception"
I'm certainly happy to plead guilty to overenthusiastic writing; it's been known to happen on blogs, although I try to avoid it. I would note, though, that the position taken in the brief I mention is not just that the ministerial exception raises difficulties of the kinds Marty mentions below, but that it should be eliminated altogether. My claim may still be too extravagant, but I still feel fairly comfortable saying that this is not the position of most professors who teach and work directly in law and religion. Best, Paul Date: Mon, 15 Aug 2011 11:25:30 -0400 Subject: Re: Hosanna-Tabor and the "Ministerial Exception" From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman wrote: Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is "a very different and nearly unanimous consensus about this case . . . among those who spend most of their time working on these issues from a law and religion perspective." Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law & religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under Boy Scouts v. Dale (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the "Law and Religion Professors" brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the "Law and Religion Professors" brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu 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. ___ 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/religi
Re: Hosanna-Tabor and the "Ministerial Exception"
Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman wrote: > Paul's Prawfsblawg post is, I think, fairly described as trying to suggest > that the Corbin/Griffin amicus brief (which he praises) does not fairly > reflect the view of most professors who teach Law and Religion, and that, > instead, there is "a very different and *nearly unanimous consensus* about > this case . . . among those who spend most of their time working on these > issues from a law and religion perspective." > > Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus > among law & religion scholars that a religious school should have complete > immunity from employment law rules, including anti-retaliation rules, even > in cases where (i) the position in question involves secular functions in a > commercial setting; (ii) the school has not demonstrated a right to an > exemption under *Boy Scouts v. Dale* (either because there's no > substantial impact on its expression or because the state interest outweighs > that impact, or both); and (iii) the school has not demonstrated a right to > an exemption under RFRA (either because there's no significant burden on > religious exercise or because the state interest outweighs the burden, or > both)? > > I'm not aware of anything like a consensus on that question. Not even sure > what the majority view would be among such scholars. > > On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: > >> I have a brief and basically non-substantive post up on Prawfsblawg today >> about the "Law and Religion Professors" brief. Also, the Northwestern >> University Law Review Colloquy will be running several pieces on the case; >> they should be up on the web site by around the start of Term. I have read >> some but not all of the briefs (and I haven't read Marci's yet; my >> apologies). I certainly think Caroline Corbin and Leslie Griffin, the >> writers of the "Law and Religion Professors" brief, do an excellent job of >> giving the best case against the ministerial exception from a doctrinal >> position, although I also think their position is both too closely focused >> on the doctrine and not focused enough on broader history (and even within >> the doctrine I think they misread Jones v. Wolf), and too consequentialist. >> Again, though, I certainly applaud them for putting their best arguments >> forward -- although they haven't changed my mind. >> >> Paul Horwitz >> >> -- >> From: lederman.ma...@gmail.com >> Date: Mon, 15 Aug 2011 09:53:06 -0400 >> Subject: Hosanna-Tabor and the "Ministerial Exception" >> To: religionlaw@lists.ucla.edu >> >> >> 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. >> >> >> ___ 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 &
Re: Hosanna-Tabor and the "Ministerial Exception"
Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is "a very different and *nearly unanimous consensus* about this case . . . among those who spend most of their time working on these issues from a law and religion perspective." Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law & religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under *Boy Scouts v. Dale* (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz wrote: > I have a brief and basically non-substantive post up on Prawfsblawg today > about the "Law and Religion Professors" brief. Also, the Northwestern > University Law Review Colloquy will be running several pieces on the case; > they should be up on the web site by around the start of Term. I have read > some but not all of the briefs (and I haven't read Marci's yet; my > apologies). I certainly think Caroline Corbin and Leslie Griffin, the > writers of the "Law and Religion Professors" brief, do an excellent job of > giving the best case against the ministerial exception from a doctrinal > position, although I also think their position is both too closely focused > on the doctrine and not focused enough on broader history (and even within > the doctrine I think they misread Jones v. Wolf), and too consequentialist. > Again, though, I certainly applaud them for putting their best arguments > forward -- although they haven't changed my mind. > > Paul Horwitz > > ------ > From: lederman.ma...@gmail.com > Date: Mon, 15 Aug 2011 09:53:06 -0400 > Subject: Hosanna-Tabor and the "Ministerial Exception" > To: religionlaw@lists.ucla.edu > > > 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. > > > ___ 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. > ___ 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.
RE: Hosanna-Tabor and the "Ministerial Exception"
I have a brief and basically non-substantive post up on Prawfsblawg today about the "Law and Religion Professors" brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the "Law and Religion Professors" brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the "Ministerial Exception" To: religionlaw@lists.ucla.edu 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. ___ 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.
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. ___ 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.
Certiorari granted in ministerial exception case
The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC. More at http://religionclause.blogspot.com/2011/03/supreme-court-grants-review-in.html Howard Friedman Professor of Law Emeritus University of Toledo ___ 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.
RE: Ministerial Exception Cert Petition
Thanks for this, Tom. Forgive me, all, if there has already been a big discussion of this case, which I missed, responding to Tom's post. It *does* strike me, for what it's worth, that it is time for the Court to weigh in on the many interesting (and difficult) questions that the "ministerial exception" raises, e.g., how do we identify the positions to which the exception applies, does the exception apply without regard to the "reasons" (if any) for the challenged conduct, and what is the constitutional basis (Free Exercise? Church Autonomy? Establishment? Something else?) for the exception? Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235> Blogs: Prawfsblawg<http://prawfsblawg.blogs.com/> Mirror of Justice<http://www.mirrorofjustice.blogs.com/> Law, Religion, and Ethics<http://lawreligionethics.net/> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Berg, Thomas C. Sent: Wednesday, November 03, 2010 1:51 PM To: Religionlaw Subject: Ministerial Exception Cert Petition The Becket Fund and Doug Laycock have filed a cert. petition in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, raising the question "[w]hether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship." See the links at Howard Friedman's Religion Clause blog, http://religionclause.blogspot.com/2010/10/cert-petition-filed-in-ministerial.html. The petition makes the case that ignoring the teacher's clergy-type duties on the ground that her "primary duties" were to teach secular classes is unconstitutional, and that the courts of appeals are divided on how to determine whether the ministerial exception applies to a given employee. Eugene commended the petition's quality, http://volokh.com/2010/10/28/antidiscrimination-laws-and-religious-organizations, but I don't know what he thinks about the merits. Rick Garnett called it "one of the most important religious freedom cases in years." http://mirrorofjustice.blogs.com/mirrorofjustice/2010/11/one-of-the-most-important-religious-freedom-cases-in-years.html And Marci has referred to the case among others in arguing that the Court ought to take a case to define the ministerial exception. http://writ.news.findlaw.com/hamilton/20100722.html. Seems like a case worth discussing. Thoughts from anyone on the list, including any of these folks? - Thomas C. Berg St. Ives Professor of Law, Associate Dean for Academic Affairs University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> ___ 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.
Ministerial Exception Cert Petition
The Becket Fund and Doug Laycock have filed a cert. petition in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, raising the question "[w]hether the ministerial exception applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship." See the links at Howard Friedman's Religion Clause blog, http://religionclause.blogspot.com/2010/10/cert-petition-filed-in-ministerial.html. The petition makes the case that ignoring the teacher's clergy-type duties on the ground that her "primary duties" were to teach secular classes is unconstitutional, and that the courts of appeals are divided on how to determine whether the ministerial exception applies to a given employee. Eugene commended the petition's quality, http://volokh.com/2010/10/28/antidiscrimination-laws-and-religious-organizations, but I don't know what he thinks about the merits. Rick Garnett called it "one of the most important religious freedom cases in years." http://mirrorofjustice.blogs.com/mirrorofjustice/2010/11/one-of-the-most-important-religious-freedom-cases-in-years.html And Marci has referred to the case among others in arguing that the Court ought to take a case to define the ministerial exception. http://writ.news.findlaw.com/hamilton/20100722.html. Seems like a case worth discussing. Thoughts from anyone on the list, including any of these folks? - Thomas C. Berg St. Ives Professor of Law, Associate Dean for Academic Affairs University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com<http://www.mirrorofjustice.blogs.com/mirrorofjustice> ___ 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.
RE: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception
CLS v. Martinez occurred to me too. Although there are the complications of public fora analysis, it seems to me that the case may begin a process of facing the inevitable conflict presented by efforts to define a perspective that is still shared by a significant portion of the population - perhaps even a majority - as invidious discrimination. This strikes me as fundamentally different from our experience with race and gender. The national (if not, in the case of race, southern) consensus led, rather than trailed, the law. The difficulty of this reconciliation is reflected in the litigating positions taken in Martinez. Hastings has retreated from the idea that it can restrict the particular point of view expressed by CLS arguing (rather fantastically in my view) that it merely wishes to prohibit any student organization from excluding anyone from leadership based on point of view. In Hastings' forum, cats must live with dogs, Democrats must welcome Republicans, and PrideLaw must accept congregants of the Westboro Baptist Church. Even if this works in the context of public fora analysis (and I don't think it does), it won't help in other contexts. CLS, on the other hand, says that it has no desire to exclude gays and lesbians as long as they are willing to affirm that to act on their sexual orientation would be a sin. To some, this is an odd distinction. When I debated CLS v. Martinez with Shaun Martin at the Unviversity of San Diego Law School, he referred to to it as saying "well, ... I'm not gay gay." CLS, in the views of some, has simply recast an exclusion based on status as an exclusion based on belief. I think Chris' hypothetical raises that issue more starkly than CLS. We can imagine that some (although perhaps not many) gays and lesbians might well believe that acting on his or her sexual orientation would be wrong and would be willing to affirm CLS' statement of belief. But a woman who accepts Ordinatio Sacerdotalis will not present herself for ordination. Viewing the exclusion as an exercise of a right of expressive association rather than sex discrimination effectively excludes women from the leadership position at issue. Maybe that's OK for religious organizations even if Smith has put paid to the ministerial exception. But what about the secular world? What about a kinder and gentler version of the Little Rascal's He-Man Woman Haters Club, say the Legion for Preservation of Motherhood and the Traditional Family formed to advocate for, among other things, traditional gender roles. Might it say that it will only hire women who sign a statement that says married women should not work outside of the home. Beyond that, could it take the postion that hiring women (or even admitting them to membership meetings in the evening when they should be at home with the children) would interfere with their expressive message? As I recall, the Boy Scouts' policy was to exclude avowed homosexuals. I guess its evident that I really don't want to start grading today. Professor Rick Esenberg Marquette University Law School Sensenbrenner Hall 321C 1103 W. Wisconsin Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Douglas Laycock [layco...@umich.edu] Sent: Sunday, May 09, 2010 8:42 AM To: religionlaw@lists.ucla.edu Subject: Re: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception This questions were actually posed in Dayton Christian Schools, which went off on Younger grounds in the Supreme Court in 1986. Got a hostile opinion on the merits in the Sixth Circuit. They are also lurking in CLS v. Martinez, argued April 19. CLS requires a statement of faith, which everyone agrees is religious, and it requires a good faith effort to live up to Christian morality, which precludes unrepentant nonmarital sex. That's clearly religious for CLS; Hastings claims it is sexual orientation discrimination. Quoting Christopher Lund : > No problem with you missing it, Eugene -- it actually proves we're > thinking alike. I agree with everything you said, and I think it > unlikely the Catholic Church would do this. (Although note Ordinatio > Sacerdotalis does end with the line, “We declare that the Church has > no authority whatsoever to confer priestly ordination on women and > that this judgment is to be definitively held by all the Church's > faithful.”). > > In any event, the main issue I’m trying to think about is this. The > statutory exception, as written, only gives churches a shield against > claims of religious discrimination. But, in practice, it should > provide protection from any type of discrimination claim -- as long > as the discrimination is n
Re: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception
This questions were actually posed in Dayton Christian Schools, which went off on Younger grounds in the Supreme Court in 1986. Got a hostile opinion on the merits in the Sixth Circuit. They are also lurking in CLS v. Martinez, argued April 19. CLS requires a statement of faith, which everyone agrees is religious, and it requires a good faith effort to live up to Christian morality, which precludes unrepentant nonmarital sex. That's clearly religious for CLS; Hastings claims it is sexual orientation discrimination. Quoting Christopher Lund : > No problem with you missing it, Eugene -- it actually proves we're > thinking alike. I agree with everything you said, and I think it > unlikely the Catholic Church would do this. (Although note Ordinatio > Sacerdotalis does end with the line, “We declare that the Church has > no authority whatsoever to confer priestly ordination on women and > that this judgment is to be definitively held by all the Church's > faithful.”). > > In any event, the main issue I’m trying to think about is this. The > statutory exception, as written, only gives churches a shield against > claims of religious discrimination. But, in practice, it should > provide protection from any type of discrimination claim -- as long > as the discrimination is not just a church practice but a core church > belief. And this has ex ante effects; by adopting certain doctrines, > churches can expand the protection of the statutory exception. If > the Supreme Court rejects the ministerial exception, the Catholic > Church could essentially get it back by requiring all priests to > assent to Ordinatio Sacerdotalis. > > This may all be right, but it seems a little counterintuitive. Here > are two other situations I’ve been thinking about. > > Nonministerial employees. Imagine a twist on Amos. A church has a > strict church policy of not allowing women in any job position. All > church members must agree with it. A female janitor applies for a > job. The church denies her employment, on the grounds that she does > not follow church policy. No claim, I guess, because this is > protected religious discrimination? > > Retaliation claims. Say a church has a policy that all disputes have > to be handled within a set procedure established by the church. Does > this give the church a shield against retaliation claims? That is, > if a continuing employee files a sex/race discrimination claim and > the church then terminates them for disobeying that church doctrine, > is the church insulated from the employee’s retaliation claim > (because it's not really retaliation, it's religious discrimination)? > > Best, > Chris > > - Original Message - > From: "Eugene Volokh" > To: "Law & Religion issues for Law Academics" > Sent: Saturday, May 8, 2010 5:49:05 PM GMT -05:00 US/Canada Eastern > Subject: RE: Question About The Statutory Title VII Exception and the > Constitutional Ministerial Exception > > Rats -- very sorry, completely missed that. But is it really the > case that the Church would indeed refuse to ordain priests that > disagree with its position? If so, and especially if the Church > asked every applicant his or views and categorically rejected all, > male or female, who disagreed with the Church on this matter, then > maybe this would indeed be religious discrimination and not sex > discrimination. But it would also be pretty expensive for the > Church, it seems to me, since it would disqualify quite a few > otherwise qualified candidates, at a time when people (or at least > Americans) aren't (to my knowledge) rushing into the priesthood. > >> -Original Message- >> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- >> boun...@lists.ucla.edu] On Behalf Of Christopher Lund >> Sent: Saturday, May 08, 2010 1:31 PM >> To: Law & Religion issues for Law Academics >> Subject: Re: Question About The Statutory Title VII Exception and the >> Constitutional Ministerial Exception >> >> Eugene, I think I built this into the original hypo (last line) -- >> the part about how >> the Church "throws in the fact that it would also refuse to ordain men who >> opposed Ordinatio Sacerdotalis." If the Church does that, is it now >> protected by >> the statutory exemption? >> >> Best, >> Chris >> >> - Original Message - >> From: "Eugene Volokh" >> To: "Law & Religion issues for Law Academics" >> Sent: Saturday, May 8, 2010 2:31:55 PM GMT -05:00 US/Canada Eastern >> Subject: RE: Question About The Statutory Title VII Excepti
Re: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception
No problem with you missing it, Eugene -- it actually proves we're thinking alike. I agree with everything you said, and I think it unlikely the Catholic Church would do this. (Although note Ordinatio Sacerdotalis does end with the line, “We declare that the Church has no authority whatsoever to confer priestly ordination on women and that this judgment is to be definitively held by all the Church's faithful.”). In any event, the main issue I’m trying to think about is this. The statutory exception, as written, only gives churches a shield against claims of religious discrimination. But, in practice, it should provide protection from any type of discrimination claim -- as long as the discrimination is not just a church practice but a core church belief. And this has ex ante effects; by adopting certain doctrines, churches can expand the protection of the statutory exception. If the Supreme Court rejects the ministerial exception, the Catholic Church could essentially get it back by requiring all priests to assent to Ordinatio Sacerdotalis. This may all be right, but it seems a little counterintuitive. Here are two other situations I’ve been thinking about. Nonministerial employees. Imagine a twist on Amos. A church has a strict church policy of not allowing women in any job position. All church members must agree with it. A female janitor applies for a job. The church denies her employment, on the grounds that she does not follow church policy. No claim, I guess, because this is protected religious discrimination? Retaliation claims. Say a church has a policy that all disputes have to be handled within a set procedure established by the church. Does this give the church a shield against retaliation claims? That is, if a continuing employee files a sex/race discrimination claim and the church then terminates them for disobeying that church doctrine, is the church insulated from the employee’s retaliation claim (because it's not really retaliation, it's religious discrimination)? Best, Chris - Original Message - From: "Eugene Volokh" To: "Law & Religion issues for Law Academics" Sent: Saturday, May 8, 2010 5:49:05 PM GMT -05:00 US/Canada Eastern Subject: RE: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception Rats -- very sorry, completely missed that. But is it really the case that the Church would indeed refuse to ordain priests that disagree with its position? If so, and especially if the Church asked every applicant his or views and categorically rejected all, male or female, who disagreed with the Church on this matter, then maybe this would indeed be religious discrimination and not sex discrimination. But it would also be pretty expensive for the Church, it seems to me, since it would disqualify quite a few otherwise qualified candidates, at a time when people (or at least Americans) aren't (to my knowledge) rushing into the priesthood. > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > Sent: Saturday, May 08, 2010 1:31 PM > To: Law & Religion issues for Law Academics > Subject: Re: Question About The Statutory Title VII Exception and the > Constitutional Ministerial Exception > > Eugene, I think I built this into the original hypo (last line) -- the part > about how > the Church "throws in the fact that it would also refuse to ordain men who > opposed Ordinatio Sacerdotalis." If the Church does that, is it now > protected by > the statutory exemption? > > Best, > Chris > > - Original Message - > From: "Eugene Volokh" > To: "Law & Religion issues for Law Academics" > Sent: Saturday, May 8, 2010 2:31:55 PM GMT -05:00 US/Canada Eastern > Subject: RE: Question About The Statutory Title VII Exception and the > Constitutional Ministerial Exception > > Well, if the Church is willing to have as priests men who disagree with > the church about the ordination of women, but rejects women who disagree > with the church about the ordination of women, then isn't that sex > discrimination and not religious discrimination? So I do think that the > ministerial > exception is necessary to leave the Church with this flexibility (and is > strengthened by Boy Scouts v. Dale). > > Eugene > > > -Original Message- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > > Sent: Saturday, May 08, 2010 11:16 AM > > To: Law & Religion issues for Law Academics > > Subject: Question About The Statutory Title VII Exception and the > Constitutional > &g
RE: Question About The Statutory Title VII Exception andtheConstitutional Ministerial Exception
Well, let's say that a church said that its sacraments are spiritually ineffective if anyone who works for the church is a woman. Would that make sex a BFOQ for all the church jobs, ministerial and otherwise? Who knows - maybe it should - but I'm not sure that this is indeed consistent with the BFOQ caselaw, messy as that caselaw is. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Saturday, May 08, 2010 3:14 PM To: Law & Religion issues for Law Academics; Law & Religion issues for Law Academics Subject: RE: Question About The Statutory Title VII Exception andtheConstitutional Ministerial Exception If the church said that the sacraments are spiritually ineffective if the priest (or putative priest) involved with them is not a man, could the courts conclude that the church is wrong? Does that mean that being a man is truly a BFOQ (or at least that the government can't say it isn't)? Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sat 5/8/2010 2:51 PM To: Law & Religion issues for Law Academics Subject: RE: Question About The Statutory Title VII Exception andtheConstitutional Ministerial Exception This is possible, though of course it wouldn't work for churches for whom race is part of the qualification for the ministry. But only possible, it seems to me: It's just not clear, under standard BFOQ doctrine (such as it is, see http://www.law.ucla.edu/volokh/ccri.htm#IIA3b for my attempt to synthesize some rules from the cases 13 years ago), that the employer's traditions and religious beliefs would suffice to make something a BFOQ. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brant, Joanne Sent: Saturday, May 08, 2010 1:26 PM To: Law & Religion issues for Law Academics Subject: RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception Wouldn't 2000-odd years of apostolic tradition (plus papal edicts) be a pretty good basis for the Catholic Church to argue that gender (being male) is a BFOQ for the Roman Catholic priesthood? Loyola-Chicago used a BFOQ defense to restrict hiring to Jesuits in their Philosophy Department in the mid-80's. Joanne Brant Professor of Law Ohio Northern University From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Sat 5/8/2010 2:15 PM To: Law & Religion issues for Law Academics Subject: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception I had a question for the listserv. Title VII has a statutory exception that allows religious organizations to discriminate in employment on the basis of religion. There's also the constitutional ministerial exception, which allows religious organizations to discriminate with regard to any characteristic (race, sex, etc.) in ministerial positions. There's controversy as to whether the ministerial exception survives Smith. (I think it should and it does, but forget that for now.) For now, let's say it doesn't. Let's say the ministerial exception disappears. What happens? In particular, how much of the ministerial exception's protection is already provided by the existing statutory right of religious groups to religiously discriminate? I think this question has huge ramifications (even as regards our present world where the ministerial exception does exist). Imagine this happens. The ministerial exception disappears and a woman brings suit against the Catholic Church, seeking to enter the priesthood. The Catholic Church refuses to allow her. She brings a sex discrimination claim. The Catholic Church defends by claiming that they are discriminating not on the basis of gender, but on the basis of religion. This woman clearly opposes a core teaching of the Church, expressed in Ordinatio Sacerdotalis among other things, that priests must be men. The woman calls this pure bootstrapping--the Church cannot convert its right to religiously discriminate into a right to engage in obvious sex discrimination. The Church points to its longstanding belief in the male-only priesthood and throws in the fact that it would also refuse to ordain men who opposed Ordinatio Sacerdotalis. Who wins this case in a world with no ministerial exception? ___ 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 rea
RE: Question About The Statutory Title VII Exception andtheConstitutional Ministerial Exception
If the church said that the sacraments are spiritually ineffective if the priest (or putative priest) involved with them is not a man, could the courts conclude that the church is wrong? Does that mean that being a man is truly a BFOQ (or at least that the government can't say it isn't)? Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sat 5/8/2010 2:51 PM To: Law & Religion issues for Law Academics Subject: RE: Question About The Statutory Title VII Exception andtheConstitutional Ministerial Exception This is possible, though of course it wouldn't work for churches for whom race is part of the qualification for the ministry. But only possible, it seems to me: It's just not clear, under standard BFOQ doctrine (such as it is, see http://www.law.ucla.edu/volokh/ccri.htm#IIA3b for my attempt to synthesize some rules from the cases 13 years ago), that the employer's traditions and religious beliefs would suffice to make something a BFOQ. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brant, Joanne Sent: Saturday, May 08, 2010 1:26 PM To: Law & Religion issues for Law Academics Subject: RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception Wouldn't 2000-odd years of apostolic tradition (plus papal edicts) be a pretty good basis for the Catholic Church to argue that gender (being male) is a BFOQ for the Roman Catholic priesthood? Loyola-Chicago used a BFOQ defense to restrict hiring to Jesuits in their Philosophy Department in the mid-80's. Joanne Brant Professor of Law Ohio Northern University From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Sat 5/8/2010 2:15 PM To: Law & Religion issues for Law Academics Subject: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception I had a question for the listserv. Title VII has a statutory exception that allows religious organizations to discriminate in employment on the basis of religion. There's also the constitutional ministerial exception, which allows religious organizations to discriminate with regard to any characteristic (race, sex, etc.) in ministerial positions. There's controversy as to whether the ministerial exception survives Smith. (I think it should and it does, but forget that for now.) For now, let's say it doesn't. Let's say the ministerial exception disappears. What happens? In particular, how much of the ministerial exception's protection is already provided by the existing statutory right of religious groups to religiously discriminate? I think this question has huge ramifications (even as regards our present world where the ministerial exception does exist). Imagine this happens. The ministerial exception disappears and a woman brings suit against the Catholic Church, seeking to enter the priesthood. The Catholic Church refuses to allow her. She brings a sex discrimination claim. The Catholic Church defends by claiming that they are discriminating not on the basis of gender, but on the basis of religion. This woman clearly opposes a core teaching of the Church, expressed in Ordinatio Sacerdotalis among other things, that priests must be men. The woman calls this pure bootstrapping--the Church cannot convert its right to religiously discriminate into a right to engage in obvious sex discrimination. The Church points to its longstanding belief in the male-only priesthood and throws in the fact that it would also refuse to ordain men who opposed Ordinatio Sacerdotalis. Who wins this case in a world with no ministerial exception? ___ 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.
RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception
This is possible, though of course it wouldn't work for churches for whom race is part of the qualification for the ministry. But only possible, it seems to me: It's just not clear, under standard BFOQ doctrine (such as it is, see http://www.law.ucla.edu/volokh/ccri.htm#IIA3b for my attempt to synthesize some rules from the cases 13 years ago), that the employer's traditions and religious beliefs would suffice to make something a BFOQ. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brant, Joanne Sent: Saturday, May 08, 2010 1:26 PM To: Law & Religion issues for Law Academics Subject: RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception Wouldn't 2000-odd years of apostolic tradition (plus papal edicts) be a pretty good basis for the Catholic Church to argue that gender (being male) is a BFOQ for the Roman Catholic priesthood? Loyola-Chicago used a BFOQ defense to restrict hiring to Jesuits in their Philosophy Department in the mid-80's. Joanne Brant Professor of Law Ohio Northern University From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Sat 5/8/2010 2:15 PM To: Law & Religion issues for Law Academics Subject: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception I had a question for the listserv. Title VII has a statutory exception that allows religious organizations to discriminate in employment on the basis of religion. There's also the constitutional ministerial exception, which allows religious organizations to discriminate with regard to any characteristic (race, sex, etc.) in ministerial positions. There's controversy as to whether the ministerial exception survives Smith. (I think it should and it does, but forget that for now.) For now, let's say it doesn't. Let's say the ministerial exception disappears. What happens? In particular, how much of the ministerial exception's protection is already provided by the existing statutory right of religious groups to religiously discriminate? I think this question has huge ramifications (even as regards our present world where the ministerial exception does exist). Imagine this happens. The ministerial exception disappears and a woman brings suit against the Catholic Church, seeking to enter the priesthood. The Catholic Church refuses to allow her. She brings a sex discrimination claim. The Catholic Church defends by claiming that they are discriminating not on the basis of gender, but on the basis of religion. This woman clearly opposes a core teaching of the Church, expressed in Ordinatio Sacerdotalis among other things, that priests must be men. The woman calls this pure bootstrapping--the Church cannot convert its right to religiously discriminate into a right to engage in obvious sex discrimination. The Church points to its longstanding belief in the male-only priesthood and throws in the fact that it would also refuse to ordain men who opposed Ordinatio Sacerdotalis. Who wins this case in a world with no ministerial exception? ___ 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.
RE: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception
Rats -- very sorry, completely missed that. But is it really the case that the Church would indeed refuse to ordain priests that disagree with its position? If so, and especially if the Church asked every applicant his or views and categorically rejected all, male or female, who disagreed with the Church on this matter, then maybe this would indeed be religious discrimination and not sex discrimination. But it would also be pretty expensive for the Church, it seems to me, since it would disqualify quite a few otherwise qualified candidates, at a time when people (or at least Americans) aren't (to my knowledge) rushing into the priesthood. > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > Sent: Saturday, May 08, 2010 1:31 PM > To: Law & Religion issues for Law Academics > Subject: Re: Question About The Statutory Title VII Exception and the > Constitutional Ministerial Exception > > Eugene, I think I built this into the original hypo (last line) -- the part > about how > the Church "throws in the fact that it would also refuse to ordain men who > opposed Ordinatio Sacerdotalis." If the Church does that, is it now > protected by > the statutory exemption? > > Best, > Chris > > - Original Message - > From: "Eugene Volokh" > To: "Law & Religion issues for Law Academics" > Sent: Saturday, May 8, 2010 2:31:55 PM GMT -05:00 US/Canada Eastern > Subject: RE: Question About The Statutory Title VII Exception and the > Constitutional Ministerial Exception > > Well, if the Church is willing to have as priests men who disagree with > the church about the ordination of women, but rejects women who disagree > with the church about the ordination of women, then isn't that sex > discrimination and not religious discrimination? So I do think that the > ministerial > exception is necessary to leave the Church with this flexibility (and is > strengthened by Boy Scouts v. Dale). > > Eugene > > > -Original Message- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > > Sent: Saturday, May 08, 2010 11:16 AM > > To: Law & Religion issues for Law Academics > > Subject: Question About The Statutory Title VII Exception and the > Constitutional > > Ministerial Exception > > > > I had a question for the listserv. Title VII has a statutory exception > > that allows > > religious organizations to discriminate in employment on the basis of > > religion. > > There’s also the constitutional ministerial exception, which allows > > religious > > organizations to discriminate with regard to any characteristic (race, sex, > > etc.) > in > > ministerial positions. There’s controversy as to whether the ministerial > > exception survives Smith. (I think it should and it does, but forget that > > for > now.) > > > > For now, let’s say it doesn’t. Let’s say the ministerial exception > > disappears. > > What happens? In particular, how much of the ministerial exception’s > > protection is already provided by the existing statutory right of religious > groups > > to religiously discriminate? I think this question has huge ramifications > > (even > as > > regards our present world where the ministerial exception does exist). > > > > Imagine this happens. The ministerial exception disappears and a woman > brings > > suit against the Catholic Church, seeking to enter the priesthood. The > > Catholic > > Church refuses to allow her. She brings a sex discrimination claim. The > Catholic > > Church defends by claiming that they are discriminating not on the basis of > > gender, but on the basis of religion. This woman clearly opposes a core > > teaching of the Church, expressed in Ordinatio Sacerdotalis among other > things, > > that priests must be men. The woman calls this pure bootstrapping—-the > > Church cannot convert its right to religiously discriminate into a right to > engage > > in obvious sex discrimination. The Church points to its longstanding > > belief in > the > > male-only priesthood and throws in the fact that it would also refuse to > > ordain > > men who opposed Ordinatio Sacerdotalis. > > > > Who wins this case in a world with no ministerial exception? > > ___ > > To post, send message to Religionlaw@lists.ucla.edu > > To subscribe, unsubscribe, change options, or get password
Re: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception
Eugene, I think I built this into the original hypo (last line) -- the part about how the Church "throws in the fact that it would also refuse to ordain men who opposed Ordinatio Sacerdotalis." If the Church does that, is it now protected by the statutory exemption? Best, Chris - Original Message - From: "Eugene Volokh" To: "Law & Religion issues for Law Academics" Sent: Saturday, May 8, 2010 2:31:55 PM GMT -05:00 US/Canada Eastern Subject: RE: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception Well, if the Church is willing to have as priests men who disagree with the church about the ordination of women, but rejects women who disagree with the church about the ordination of women, then isn't that sex discrimination and not religious discrimination? So I do think that the ministerial exception is necessary to leave the Church with this flexibility (and is strengthened by Boy Scouts v. Dale). Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > Sent: Saturday, May 08, 2010 11:16 AM > To: Law & Religion issues for Law Academics > Subject: Question About The Statutory Title VII Exception and the > Constitutional > Ministerial Exception > > I had a question for the listserv. Title VII has a statutory exception that > allows > religious organizations to discriminate in employment on the basis of > religion. > There’s also the constitutional ministerial exception, which allows religious > organizations to discriminate with regard to any characteristic (race, sex, > etc.) in > ministerial positions. There’s controversy as to whether the ministerial > exception survives Smith. (I think it should and it does, but forget that > for now.) > > For now, let’s say it doesn’t. Let’s say the ministerial exception > disappears. > What happens? In particular, how much of the ministerial exception’s > protection is already provided by the existing statutory right of religious > groups > to religiously discriminate? I think this question has huge ramifications > (even as > regards our present world where the ministerial exception does exist). > > Imagine this happens. The ministerial exception disappears and a woman brings > suit against the Catholic Church, seeking to enter the priesthood. The > Catholic > Church refuses to allow her. She brings a sex discrimination claim. The > Catholic > Church defends by claiming that they are discriminating not on the basis of > gender, but on the basis of religion. This woman clearly opposes a core > teaching of the Church, expressed in Ordinatio Sacerdotalis among other > things, > that priests must be men. The woman calls this pure bootstrapping—-the > Church cannot convert its right to religiously discriminate into a right to > engage > in obvious sex discrimination. The Church points to its longstanding belief > in the > male-only priesthood and throws in the fact that it would also refuse to > ordain > men who opposed Ordinatio Sacerdotalis. > > Who wins this case in a world with no ministerial exception? > ___ > 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. ___ 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.
RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception
ociations. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sat 5/8/2010 11:31 AM To: Law & Religion issues for Law Academics Subject: RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception Well, if the Church is willing to have as priests men who disagree with the church about the ordination of women, but rejects women who disagree with the church about the ordination of women, then isn't that sex discrimination and not religious discrimination? So I do think that the ministerial exception is necessary to leave the Church with this flexibility (and is strengthened by Boy Scouts v. Dale). Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > Sent: Saturday, May 08, 2010 11:16 AM > To: Law & Religion issues for Law Academics > Subject: Question About The Statutory Title VII Exception and the > Constitutional > Ministerial Exception > > I had a question for the listserv. Title VII has a statutory exception that > allows > religious organizations to discriminate in employment on the basis of > religion. > There's also the constitutional ministerial exception, which allows religious > organizations to discriminate with regard to any characteristic (race, sex, > etc.) in > ministerial positions. There's controversy as to whether the ministerial > exception survives Smith. (I think it should and it does, but forget that > for now.) > > For now, let's say it doesn't. Let's say the ministerial exception > disappears. > What happens? In particular, how much of the ministerial exception's > protection is already provided by the existing statutory right of religious > groups > to religiously discriminate? I think this question has huge ramifications > (even as > regards our present world where the ministerial exception does exist). > > Imagine this happens. The ministerial exception disappears and a woman brings > suit against the Catholic Church, seeking to enter the priesthood. The > Catholic > Church refuses to allow her. She brings a sex discrimination claim. The > Catholic > Church defends by claiming that they are discriminating not on the basis of > gender, but on the basis of religion. This woman clearly opposes a core > teaching of the Church, expressed in Ordinatio Sacerdotalis among other > things, > that priests must be men. The woman calls this pure bootstrapping--the > Church cannot convert its right to religiously discriminate into a right to > engage > in obvious sex discrimination. The Church points to its longstanding belief > in the > male-only priesthood and throws in the fact that it would also refuse to > ordain > men who opposed Ordinatio Sacerdotalis. > > Who wins this case in a world with no ministerial exception? > ___ > 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. ___ 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.
RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception
Wouldn't 2000-odd years of apostolic tradition (plus papal edicts) be a pretty good basis for the Catholic Church to argue that gender (being male) is a BFOQ for the Roman Catholic priesthood? Loyola-Chicago used a BFOQ defense to restrict hiring to Jesuits in their Philosophy Department in the mid-80's. Joanne Brant Professor of Law Ohio Northern University From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Sat 5/8/2010 2:15 PM To: Law & Religion issues for Law Academics Subject: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception I had a question for the listserv. Title VII has a statutory exception that allows religious organizations to discriminate in employment on the basis of religion. There's also the constitutional ministerial exception, which allows religious organizations to discriminate with regard to any characteristic (race, sex, etc.) in ministerial positions. There's controversy as to whether the ministerial exception survives Smith. (I think it should and it does, but forget that for now.) For now, let's say it doesn't. Let's say the ministerial exception disappears. What happens? In particular, how much of the ministerial exception's protection is already provided by the existing statutory right of religious groups to religiously discriminate? I think this question has huge ramifications (even as regards our present world where the ministerial exception does exist). Imagine this happens. The ministerial exception disappears and a woman brings suit against the Catholic Church, seeking to enter the priesthood. The Catholic Church refuses to allow her. She brings a sex discrimination claim. The Catholic Church defends by claiming that they are discriminating not on the basis of gender, but on the basis of religion. This woman clearly opposes a core teaching of the Church, expressed in Ordinatio Sacerdotalis among other things, that priests must be men. The woman calls this pure bootstrapping--the Church cannot convert its right to religiously discriminate into a right to engage in obvious sex discrimination. The Church points to its longstanding belief in the male-only priesthood and throws in the fact that it would also refuse to ordain men who opposed Ordinatio Sacerdotalis. Who wins this case in a world with no ministerial exception? ___ 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.
RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception
There is a potential conduct vs belief distinction. The man who wants to be a priest but who argues that the church should change its doctrine to allow women to be ordained is not by his seeking ordination engaging in an activity contrary to church doctrine --that is, he is abiding by the church's doctrine though he would like to see it changed. (That is, assuming the church allows those to be ordained who will abide by its doctrine with regard to nonordination of women while they seek to change it through regular church processes; I don't know whether Roman Catholic canon law permits this; if not, then his seeking ordination would be in violation of church doctrine.) But the woman who seeks ordination is seeking to engage in conduct (or to cause the church to engage in conduct) that would violate the church's doctrine in addition to wanting the church to change its existing doctrine. Similarly, for example, in some Protestant denominations a candidate for ordination who is a celibate gay or lesbian person would be eligible for ordination even if he or she believes or argues that the church should change its current doctrinal position that persons who unrepentantly engage in homosexual conduct may not be ordained -- because he or she would not be engaging in conduct in violation of the church's standards. But in such a denomination a person with the same views who openly and unrepentantly engaged in homosexual conduct could not be ordained. It seems to me that churches and other associations should be permitted to make such a distinction, and that it can be a real, nonpretextual distinction. By allowing associations to make such distinctions we allow them to be more tolerant of belief and of internal attempts toward change or reform without losing their right to insist on standards of conduct. That is not to say that associations should be required to make such a distinction or required to make it uniformly with regard to both core and noncore standards of conduct and belief. They should be permitted to have both conduct and belief standards for membership or leadership positions. For example, it would make no sense to require a church to ordain a minister who was committed to live by its moral standards and even to teach its doctrine faithfully, but who did not believe the doctrine to be true. Most religious associations will have core and noncore belief requirements for leaders and members. Leaders may be expected to embrace core beliefs but not noncore beliefs, and the set of core beliefs might be smaller for members than for leaders. With regard to expressive conduct (treating teaching and other speech as a kind of conduct in this context), they might expect ministers to teach core beliefs faithfully and simply not to undermine certain other beliefs, while permitting ministers to openly question yet other noncore beliefs and to openly reject yet others. The same may be true for standards more directly related to conduct. There thus is a spectrum of belief requirements, and a spectrum of conduct requirements; perhaps we could think of these as two axes, with associations, particularly religious associations, having the freedom to choose where they will place themselves on each axis (or, in other words, on the plane defined by the two axes). Or perhaps there are three axes: standards for internal belief, standards for teaching and other expression, and standards for conduct that is not primarily expressive. I doubt this is a new idea; perhaps someone would have a reference to something discussing such a two or three axis approach to classifying expressive associations or more particularly religious associations. Mark Scarberry Pepperdine From: religionlaw-boun...@lists.ucla.edu on behalf of Volokh, Eugene Sent: Sat 5/8/2010 11:31 AM To: Law & Religion issues for Law Academics Subject: RE: Question About The Statutory Title VII Exception and theConstitutional Ministerial Exception Well, if the Church is willing to have as priests men who disagree with the church about the ordination of women, but rejects women who disagree with the church about the ordination of women, then isn't that sex discrimination and not religious discrimination? So I do think that the ministerial exception is necessary to leave the Church with this flexibility (and is strengthened by Boy Scouts v. Dale). Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > Sent: Saturday, May 08, 2010 11:16 AM > To: Law & Religion issues for Law Academics > Subject: Question About The Statutory Title VII Exception and the > Constitutional > Ministerial Exception > > I had a question for the listserv. Title VII has a statutory exception that > allows >
RE: Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception
Well, if the Church is willing to have as priests men who disagree with the church about the ordination of women, but rejects women who disagree with the church about the ordination of women, then isn't that sex discrimination and not religious discrimination? So I do think that the ministerial exception is necessary to leave the Church with this flexibility (and is strengthened by Boy Scouts v. Dale). Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Christopher Lund > Sent: Saturday, May 08, 2010 11:16 AM > To: Law & Religion issues for Law Academics > Subject: Question About The Statutory Title VII Exception and the > Constitutional > Ministerial Exception > > I had a question for the listserv. Title VII has a statutory exception that > allows > religious organizations to discriminate in employment on the basis of > religion. > There’s also the constitutional ministerial exception, which allows religious > organizations to discriminate with regard to any characteristic (race, sex, > etc.) in > ministerial positions. There’s controversy as to whether the ministerial > exception survives Smith. (I think it should and it does, but forget that > for now.) > > For now, let’s say it doesn’t. Let’s say the ministerial exception > disappears. > What happens? In particular, how much of the ministerial exception’s > protection is already provided by the existing statutory right of religious > groups > to religiously discriminate? I think this question has huge ramifications > (even as > regards our present world where the ministerial exception does exist). > > Imagine this happens. The ministerial exception disappears and a woman brings > suit against the Catholic Church, seeking to enter the priesthood. The > Catholic > Church refuses to allow her. She brings a sex discrimination claim. The > Catholic > Church defends by claiming that they are discriminating not on the basis of > gender, but on the basis of religion. This woman clearly opposes a core > teaching of the Church, expressed in Ordinatio Sacerdotalis among other > things, > that priests must be men. The woman calls this pure bootstrapping—-the > Church cannot convert its right to religiously discriminate into a right to > engage > in obvious sex discrimination. The Church points to its longstanding belief > in the > male-only priesthood and throws in the fact that it would also refuse to > ordain > men who opposed Ordinatio Sacerdotalis. > > Who wins this case in a world with no ministerial exception? > ___ > 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.
Question About The Statutory Title VII Exception and the Constitutional Ministerial Exception
I had a question for the listserv. Title VII has a statutory exception that allows religious organizations to discriminate in employment on the basis of religion. There’s also the constitutional ministerial exception, which allows religious organizations to discriminate with regard to any characteristic (race, sex, etc.) in ministerial positions. There’s controversy as to whether the ministerial exception survives Smith. (I think it should and it does, but forget that for now.) For now, let’s say it doesn’t. Let’s say the ministerial exception disappears. What happens? In particular, how much of the ministerial exception’s protection is already provided by the existing statutory right of religious groups to religiously discriminate? I think this question has huge ramifications (even as regards our present world where the ministerial exception does exist). Imagine this happens. The ministerial exception disappears and a woman brings suit against the Catholic Church, seeking to enter the priesthood. The Catholic Church refuses to allow her. She brings a sex discrimination claim. The Catholic Church defends by claiming that they are discriminating not on the basis of gender, but on the basis of religion. This woman clearly opposes a core teaching of the Church, expressed in Ordinatio Sacerdotalis among other things, that priests must be men. The woman calls this pure bootstrapping—-the Church cannot convert its right to religiously discriminate into a right to engage in obvious sex discrimination. The Church points to its longstanding belief in the male-only priesthood and throws in the fact that it would also refuse to ordain men who opposed Ordinatio Sacerdotalis. Who wins this case in a world with no ministerial exception? ___ 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.
9th Circuit holds ministerial exception required by 1st Am.
I've just skimmed the case but thought I should get it out to list members. Please pardon the cross posting if you are on both lists. Rosas v. The Corporation of the Catholic Archbishop of Seattle http://www.metnews.com/sos.cgi?0310%2F09-35003 Best wishes, Mark Scarberry Pepperdine ___ 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.
RE: Ave Maria Law School invokes ministerial exception in wrongful termination suit
I agree with Eugene that the first amendment limits a state's power to impose tort liability for engaging in protected speech, and that those limits extend to liability for tortious interference, but I have difficulty conceiving of how those limits could even plausibly apply to Safranek's claim for tortious interference. I appreciate and concur in the quibble; I just can't make it fit the particulars of this case. Mike Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting "Volokh, Eugene" : I largely agree with Michael's point, but want to offer a small quibble: I would think that the right of expressive association, and for that matter of free speech, might sometimes preempt the tort of interference with a contractual relationship -- for instance, if a group pickets to urge some organization to take some action even if the action involves breaching the organization's contracts. See, e.g., Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 857-58 (10th Cir. 1999) (citing Hustler v. Falwell to reject a "reading of state [interference with contract] tort law ... [under which] the protection afforded to an expression of opinion under the First Amendment might well depend on a trier of fact's determination of whether the individual who had published the article was motivated by a legitimate desire to express his or her view or by a desire to interfere with a contract"). Eugene -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter Sent: Wednesday, July 01, 2009 5:49 AM To: Law & Religion issues for Law Academics; Rick Duncan Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit Why would the assumed right of expressive association preclude liability for breach of contract, for fraud, or for tortious interference with a contractual relationship? To be sure Ave Maria might regret having chosen to grant tenure to its faculty, but having done so, why would a right of expressive association permit it to ignore the contractual and tort duties arising from the contract it freely entered? Without conceding the right as applied to the school, why would its presumed existence affect any of the claims against either the school or the individual defendants? Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu 954.262.3835 (fax) Quoting Rick Duncan : > Even if the ministerial exception doesn't apply, why wouldn't the > right of expressive association apply to a school's right to exclude > teachers who are part of its expressive mission? Surely, Ave Maria > is at least as much of an expressive association as are the BSA. No? > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > ___ 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. ___ 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.
Re: Ave Maria Law School invokes ministerial exception in wrongfultermination suit
When hired, did the professors have to sign a "statement of faith: or was their a requirement in the contract or the faculty handbook? If not, how does the professor know the standard?? I signed a statement of faith as an adjunct at Trinity law School, part of Trinity International University. Trinity started out as the seminary for the Evangelical Free church in America If they did sign a statement of faith or were otherwise given notice of the standard, and later repudiate it, wouldn't that be a breach of contract and therefore actionable without reference to freedom of religion? However, if they have a slightly different interpretation of a tenant of the faith, say the presence of Christ in the Eucharist, then we could have the court trying to decide theological questions—a place the court cannot go. Alan Armstrong Law Office of Alan Leigh Armstrong Huntington Beach CA 92648-6006 On Jun 30, 2009, at 9:53 PM, steve...@umich.edu wrote: Didn't the Court reject a similar sort of expressive association argument in Rumsfeld v. FAIR, the military recruiters case? I seem to recall it said that an asserted right by a law school not to be forced to associate with people or ideas it found disagreeable was simply too attenuated from the primary purpose of the First Amendment in the higher education context: to protect a robust marketplace of ideas. Steve Sanders Sent via BlackBerry from T-Mobile -Original Message- From: Rick Duncan Date: Tue, 30 Jun 2009 21:28:17 To: Law & Religion issues for Law Academics Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit ___ 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. ___ 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.
RE: Ave Maria Law School invokes ministerial exception inwrongfultermination suit
Dale might be on point to the atheist teaching in a religious school, or vice versa. But that's because the school can easily explain how the teacher's out-of-school speech disclosing his beliefs would undermine the message the school is trying to teach. But can Ave Maria really make a plausible claim that a professor's blowing the whistle on alleged illegalities by the administration is inconsistent with the ideology that the school is teaching, to the point that retaining the teacher would burden the school's ability to convey this ideology? And, as I mentioned, the right to expressive association defense wouldn't apply to the breach of contract claims in any event. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan Sent: Wednesday, July 01, 2009 5:32 AM To: Law & Religion issues for Law Academics Subject: Re: Ave Maria Law School invokes ministerial exception inwrongfultermination suit I think the distinction Prof. Cruz makes is correct. Religious schools are expressive associations that come together for the purpose of teaching about the world from a faith-based point of view. Of course, the school needs to establish how forced inclusion of the teacher impairs its ability to say what it wishes to say and to refrain from saying what it wishes not to say. But there are no "secular" subjects and "religious" subjects. A religious school will often have a religious perspective on any and all subjects. As my daughter's high school says in its motto, Lincoln Christian School exists "to teach about God's world from God's word." Teachers are also role models who express their faith by example throughout the school day. The way a math teacher handles a disciplinary problem in class reflects her faith and teaches by example. The way she conducts herself when coaching the math club reflects her faith and teaches by example. The easiest case would be a teacher in, say, a Christian K-12 school who loses her faith and now presents as an atheist. How can an atheist speak within the curriculum for a Christian school? How can she be a role-model of the Christian walk through life? I think Dale is directly in point. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 6/30/09, David Cruz wrote: From: David Cruz Subject: Re: Ave Maria Law School invokes ministerial exception inwrongfultermination suit To: steve...@umich.edu, "Law & Religion issues for Law Academics" Cc: "Law & Religion issues for Law Academics" Date: Tuesday, June 30, 2009, 10:55 PM Writing only of Steve's Rumsfeld argument, the Court did there note that recruiters did not become a permanent part of a law school community. That could distinguish a tenured or tenure-track faculty member (though I express no opinion herein about whether that distinction should lead to a different outcome). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jun 30, 2009, at 9:51 PM, "steve...@umich.edu" > wrote: > Didn't the Court reject a similar sort of expressive association argument in > Rumsfeld v. FAIR, the military recruiters case? I seem to recall it said > that an asserted right by a law school not to be forced to associate with > people or ideas it found disagreeable was simply too attenuated from the > primary purpose of the First Amendment in the higher education context: to > protect a robust marketplace of ideas. > > Steve Sanders > > Sent via BlackBerry from T-Mobile > > -Original Message- > From: Rick Duncan > > > > Date: Tue, 30 Jun 2009 21:28:17 > To: Law & Religion issues for Law > Academics> > Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful >termination suit > > > ___ > 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,
RE: Ave Maria Law School invokes ministerial exception in wrongful termination suit
I largely agree with Michael's point, but want to offer a small quibble: I would think that the right of expressive association, and for that matter of free speech, might sometimes preempt the tort of interference with a contractual relationship -- for instance, if a group pickets to urge some organization to take some action even if the action involves breaching the organization's contracts. See, e.g., Jefferson County Sch. Dist. No. R-1 v. Moody's Investor's Servs., Inc., 175 F.3d 848, 857-58 (10th Cir. 1999) (citing Hustler v. Falwell to reject a "reading of state [interference with contract] tort law ... [under which] the protection afforded to an expression of opinion under the First Amendment might well depend on a trier of fact's determination of whether the individual who had published the article was motivated by a legitimate desire to express his or her view or by a desire to interfere with a contract"). Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Michael R. Masinter > Sent: Wednesday, July 01, 2009 5:49 AM > To: Law & Religion issues for Law Academics; Rick Duncan > Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful > termination suit > > Why would the assumed right of expressive association preclude > liability for breach of contract, for fraud, or for tortious > interference with a contractual relationship? To be sure Ave Maria > might regret having chosen to grant tenure to its faculty, but having > done so, why would a right of expressive association permit it to > ignore the contractual and tort duties arising from the contract it > freely entered? Without conceding the right as applied to the school, > why would its presumed existence affect any of the claims against > either the school or the individual defendants? > > > Michael R. Masinter 3305 College Avenue > Professor of Law Fort Lauderdale, FL 33314 > Nova Southeastern University 954.262.6151 (voice) > masin...@nova.edu 954.262.3835 (fax) > > > Quoting Rick Duncan : > > > Even if the ministerial exception doesn't apply, why wouldn't the > > right of expressive association apply to a school's right to exclude > > teachers who are part of its expressive mission? Surely, Ave Maria > > is at least as much of an expressive association as are the BSA. No? > > > > Rick Duncan > > Welpton Professor of Law > > University of Nebraska College of Law > > Lincoln, NE 68583-0902 > > > > > ___ > 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.
Re: Ave Maria Law School invokes ministerial exception inwrongfultermination suit
Ave Maria may have an expressive association claim, as Rick says, but that's very different from the jurisdictional immunity conferred by the ministerial exception, especially in the context of a dispute over contract-based rights. Ave Maria might be able to claim that the professor breached his contract, and thus deserves revocation of tenure, by failing to teach in accordance with the mission of the school, but it is highly unlikely that any court would allow the school to assert the ministerial exception and decline to give any reason for its termination. Bob On Wed, Jul 1, 2009 at 8:31 AM, Rick Duncan wrote: > I think the distinction Prof. Cruz makes is correct. > > Religious schools are expressive associations that come together for the > purpose of teaching about the world from a faith-based point of view. > > Of course, the school needs to establish how forced inclusion of the teacher > impairs its ability to say what it wishes to say and to refrain from saying > what it wishes not to say. But there are no "secular" subjects and > "religious" subjects. A religious school will often have a religious > perspective on any and all subjects. As my daughter's high school says in > its motto, Lincoln Christian School exists "to teach about God's world from > God's word." > > Teachers are also role models who express their faith by example throughout > the school day. The way a math teacher handles a disciplinary problem in > class reflects her faith and teaches by example. The way she conducts > herself when coaching the math club reflects her faith and teaches by > example. > > The easiest case would be a teacher in, say, a Christian K-12 school who > loses her faith and now presents as an atheist. How can an atheist speak > within the curriculum for a Christian school? How can she be a role-model of > the Christian walk through life? I think Dale is directly in point. > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > > "And against the constitution I have never raised a storm,It's the > scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from > the song, Thomas Muir of Huntershill) > > --- On Tue, 6/30/09, David Cruz wrote: > > From: David Cruz > Subject: Re: Ave Maria Law School invokes ministerial exception > inwrongfultermination suit > To: steve...@umich.edu, "Law & Religion issues for Law Academics" > > Cc: "Law & Religion issues for Law Academics" > Date: Tuesday, June 30, 2009, 10:55 PM > > Writing only of Steve's Rumsfeld argument, the Court did there note that > recruiters did not become a permanent part of a law school community. That > could distinguish a tenured or tenure-track faculty member (though I express > no opinion herein about whether that distinction should lead to a different > outcome). > > David B. Cruz > Professor of Law > University of Southern California Gould School of Law > Los Angeles, CA 90089-0071 > U.S.A. > > On Jun 30, 2009, at 9:51 PM, "steve...@umich.edu" > wrote: > >> Didn't the Court reject a similar sort of expressive association argument >> in Rumsfeld v. FAIR, the military recruiters case? I seem to recall it said >> that an asserted right by a law school not to be forced to associate with >> people or ideas it found disagreeable was simply too attenuated from the >> primary purpose of the First Amendment in the higher education context: to >> protect a robust marketplace of ideas. >> >> Steve Sanders >> >> Sent via BlackBerry from T-Mobile >> >> -Original Message- >> From: Rick Duncan >> >> Date: Tue, 30 Jun 2009 21:28:17 >> To: Law & Religion issues for Law Academics >> Subject: Re: Ave Maria Law School invokes ministerial exception in >> wrongful >> termination suit >> >> >> ___ >> 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/cg
RE: Ave Maria Law School invokes ministerial exception inwrongfultermination suit
I take it also that the freedom of expressive association argument wouldn't block Safranek's breach of contract claim; presumably, freedom of expressive association rights, like free speech rights, may be partly waived by contract. An excessive entanglement with religion argument might block a breach of contract claim, however, if interpreting the contract would require considering religious doctrine. Also, the ministerial exemption has been treated by lower courts as presuming that any inquiry into the church's motives for firing would be impermissible; there's no need to show, for instance, that the church feels any obligation to discriminate based on race, sex, etc., or whatever the forbidden basis might be. Thus, the Catholic Church would be protected against race discrimination lawsuits as well as sex discrimination lawsuits by its clergy, even if it denies that its religion requires it to discriminate based on race. I take it that following Boy Scouts v. Dale, the protection of expressive associations' decisions is not absolute; the Boy Scouts, for instance, wouldn't be able to claim a defense against a race discrimination claim, at least unless they were willing to assert that their message supported such discrimination (and were able to support this with at least some argument about how its message did so, though some deference would be given to their ow! n interpretation of their message). It may well be that Ave Maria couldn't plausibly make any such assertion as to Safranek's noncontract claim, which is that he was terminated because he blew the whistle on allegedly illegal practices. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of David Cruz > Sent: Tuesday, June 30, 2009 10:56 PM > To: steve...@umich.edu; Law & Religion issues for Law Academics > Cc: Law & Religion issues for Law Academics > Subject: Re: Ave Maria Law School invokes ministerial exception > inwrongfultermination suit > > Writing only of Steve's Rumsfeld argument, the Court did there note > that recruiters did not become a permanent part of a law school > community. That could distinguish a tenured or tenure-track faculty > member (though I express no opinion herein about whether that > distinction should lead to a different outcome). > > David B. Cruz > Professor of Law > University of Southern California Gould School of Law > Los Angeles, CA 90089-0071 > U.S.A. > > On Jun 30, 2009, at 9:51 PM, "steve...@umich.edu" > wrote: > > > Didn't the Court reject a similar sort of expressive association > > argument in Rumsfeld v. FAIR, the military recruiters case? I seem > > to recall it said that an asserted right by a law school not to be > > forced to associate with people or ideas it found disagreeable was > > simply too attenuated from the primary purpose of the First > > Amendment in the higher education context: to protect a robust > > marketplace of ideas. > > > > Steve Sanders > > > > Sent via BlackBerry from T-Mobile > > > > -Original Message- > > From: Rick Duncan > > > > Date: Tue, 30 Jun 2009 21:28:17 > > To: Law & Religion issues for Law > > Academics > > Subject: Re: Ave Maria Law School invokes ministerial exception in > > wrongful > >termination suit > > > > > > ___ > > 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. > ___ > 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/lis
Re: Ave Maria Law School invokes ministerial exception in wrongfultermination suit
That's a related but quite distinct argument. The argument in cases like FAIR and Dale is that the organization has a message, and the particular employee is countermanding or undermining that message. It potentially applies to any position, but it requires a specific conflict between something the employee is saying or doing and some message the employer is trying to communicate. The argument in the mininsterial exception is that some positions are so sensitive, we can't let courts review employment decisions at all. The risk of judicial error is too for such a sensitive position, and imposing a religious leader on a church that no longer accepts him as a leader is a First Amendment problem even if there was discrimination that would be actionable in other contexts. This rule applies only to a narrowly defined set of positions, but with respect to that set of positions, the employer wins. Nothing more is required. Even the FAIR and Dale argument is tough for universities to make out with respect to faculty, given the tradition, and accreditation requirement, of academic freedom. The AAUP rules say that a religious umiversity can disclose in advance any mission-related limitations on academic freedom. Courts have not clearly adopted those rules, although they can plausibly be read into employment contracts at many schools, and some forces within the AAUP have been trying to wiggle out of the religious limitation clause for decades. The AAUP rules were jointly adopted with an association of colleges and universities, so unilateral amendments are of doubtful status. Quoting steve...@umich.edu: > Didn't the Court reject a similar sort of expressive association > argument in Rumsfeld v. FAIR, the military recruiters case? I seem > to recall it said that an asserted right by a law school not to be > forced to associate with people or ideas it found disagreeable was > simply too attenuated from the primary purpose of the First Amendment > in the higher education context: to protect a robust marketplace of > ideas. > > Steve Sanders > > Sent via BlackBerry from T-Mobile > > -Original Message- > From: Rick Duncan > > Date: Tue, 30 Jun 2009 21:28:17 > To: Law & Religion issues for Law Academics > Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful > termination suit > > > ___ > 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[1] > > 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[2] > > 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. > > > 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 Links: -- [1] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw [2] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw___ 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.
Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit
Why would the assumed right of expressive association preclude liability for breach of contract, for fraud, or for tortious interference with a contractual relationship? To be sure Ave Maria might regret having chosen to grant tenure to its faculty, but having done so, why would a right of expressive association permit it to ignore the contractual and tort duties arising from the contract it freely entered? Without conceding the right as applied to the school, why would its presumed existence affect any of the claims against either the school or the individual defendants? Michael R. Masinter 3305 College Avenue Professor of Law Fort Lauderdale, FL 33314 Nova Southeastern University 954.262.6151 (voice) masin...@nova.edu954.262.3835 (fax) Quoting Rick Duncan : Even if the ministerial exception doesn't apply, why wouldn't the right of expressive association apply to a school's right to exclude teachers who are part of its expressive mission? Surely, Ave Maria is at least as much of an expressive association as are the BSA. No? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ 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.
Re: Ave Maria Law School invokes ministerial exception inwrongfultermination suit
I think the distinction Prof. Cruz makes is correct. Religious schools are expressive associations that come together for the purpose of teaching about the world from a faith-based point of view. Of course, the school needs to establish how forced inclusion of the teacher impairs its ability to say what it wishes to say and to refrain from saying what it wishes not to say. But there are no "secular" subjects and "religious" subjects. A religious school will often have a religious perspective on any and all subjects. As my daughter's high school says in its motto, Lincoln Christian School exists "to teach about God's world from God's word." Teachers are also role models who express their faith by example throughout the school day. The way a math teacher handles a disciplinary problem in class reflects her faith and teaches by example. The way she conducts herself when coaching the math club reflects her faith and teaches by example. The easiest case would be a teacher in, say, a Christian K-12 school who loses her faith and now presents as an atheist. How can an atheist speak within the curriculum for a Christian school? How can she be a role-model of the Christian walk through life? I think Dale is directly in point. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Tue, 6/30/09, David Cruz wrote: From: David Cruz Subject: Re: Ave Maria Law School invokes ministerial exception inwrongfultermination suit To: steve...@umich.edu, "Law & Religion issues for Law Academics" Cc: "Law & Religion issues for Law Academics" Date: Tuesday, June 30, 2009, 10:55 PM Writing only of Steve's Rumsfeld argument, the Court did there note that recruiters did not become a permanent part of a law school community. That could distinguish a tenured or tenure-track faculty member (though I express no opinion herein about whether that distinction should lead to a different outcome). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jun 30, 2009, at 9:51 PM, "steve...@umich.edu" wrote: > Didn't the Court reject a similar sort of expressive association argument in > Rumsfeld v. FAIR, the military recruiters case? I seem to recall it said > that an asserted right by a law school not to be forced to associate with > people or ideas it found disagreeable was simply too attenuated from the > primary purpose of the First Amendment in the higher education context: to > protect a robust marketplace of ideas. > > Steve Sanders > > Sent via BlackBerry from T-Mobile > > -Original Message- > From: Rick Duncan > > Date: Tue, 30 Jun 2009 21:28:17 > To: Law & Religion issues for Law Academics > Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful > termination suit > > > ___ > 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. ___ 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
Re: Ave Maria Law School invokes ministerial exception inwrongfultermination suit
Writing only of Steve's Rumsfeld argument, the Court did there note that recruiters did not become a permanent part of a law school community. That could distinguish a tenured or tenure-track faculty member (though I express no opinion herein about whether that distinction should lead to a different outcome). David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. On Jun 30, 2009, at 9:51 PM, "steve...@umich.edu" wrote: Didn't the Court reject a similar sort of expressive association argument in Rumsfeld v. FAIR, the military recruiters case? I seem to recall it said that an asserted right by a law school not to be forced to associate with people or ideas it found disagreeable was simply too attenuated from the primary purpose of the First Amendment in the higher education context: to protect a robust marketplace of ideas. Steve Sanders Sent via BlackBerry from T-Mobile -Original Message- From: Rick Duncan Date: Tue, 30 Jun 2009 21:28:17 To: Law & Religion issues for Law Academics Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit ___ 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. ___ 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.
Re: Ave Maria Law School invokes ministerial exception in wrongfultermination suit
Didn't the Court reject a similar sort of expressive association argument in Rumsfeld v. FAIR, the military recruiters case? I seem to recall it said that an asserted right by a law school not to be forced to associate with people or ideas it found disagreeable was simply too attenuated from the primary purpose of the First Amendment in the higher education context: to protect a robust marketplace of ideas. Steve Sanders Sent via BlackBerry from T-Mobile -Original Message- From: Rick Duncan Date: Tue, 30 Jun 2009 21:28:17 To: Law & Religion issues for Law Academics Subject: Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit ___ 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.
Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit
Even if the ministerial exception doesn't apply, why wouldn't the right of expressive association apply to a school's right to exclude teachers who are part of its expressive mission? Surely, Ave Maria is at least as much of an expressive association as are the BSA. No? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill) ___ 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.
Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit
I agree with Doug - there are a number of cases involving religious high schools that have made similar claims about teachers of generally secular subjects -- arguing that all teachers in the school are expected to infuse religious values into all subjects -- but as far as I know those schools have uniformly lost. Bob Tuttle On Tue, Jun 30, 2009 at 3:39 PM, Douglas Laycock wrote: > Similar arguments were made early on in EEOC v. Mississippi College, 626 > F.2d 477, 484-85 (5th Cir. 1980). No ministerial exception because "the > College is not a church and its faculty members are not ministers." > Professors of theology and seminary faculty are within the ministerial > exception. EEOC v. Catholic University (D.C. Cir 1996) and EEOC v. > Southwestern Baptist Theological Seminary (5th Cir. 1981 or so). Faculty in > secular subjects have been held outside it, and it is hard to see how law > professors would be any different. > > Quoting Ed Brayton : > >> http://avewatch.com/?p=136 >> >> >> >> This strikes me as highly unlikely to succeed, especially since the law >> school had to have represented to the ABA many things that would undermine >> their claim to the exception. Thoughts from the scholars on the list? >> >> >> >> Ed Brayton >> >> > > > > 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 > 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 ___ 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.
Re: Ave Maria Law School invokes ministerial exception in wrongful termination suit
Similar arguments were made early on in EEOC v. Mississippi College, 626 F.2d 477, 484-85 (5th Cir. 1980). No ministerial exception because "the College is not a church and its faculty members are not ministers." Professors of theology and seminary faculty are within the ministerial exception. EEOC v. Catholic University (D.C. Cir 1996) and EEOC v. Southwestern Baptist Theological Seminary (5th Cir. 1981 or so). Faculty in secular subjects have been held outside it, and it is hard to see how law professors would be any different. Quoting Ed Brayton : > http://avewatch.com/?p=136[1] > > > > This strikes me as highly unlikely to succeed, especially since the law > school had to have represented to the ABA many things that would undermine > their claim to the exception. Thoughts from the scholars on the list? > > > > Ed Brayton > > 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 Links: -- [1] http://avewatch.com/?p=136___ 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.
Ave Maria Law School invokes ministerial exception in wrongful termination suit
http://avewatch.com/?p=136 This strikes me as highly unlikely to succeed, especially since the law school had to have represented to the ABA many things that would undermine their claim to the exception. Thoughts from the scholars on the list? Ed Brayton ___ 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.
ministerial exception and rfra in the second circuit
Although Lyght v. Hankins held that RFRA displaced the ministerial
exception, as Marc Stern points out, it is worth noting that in later
decision the second circuit cast doubt on whether Hankins was decided
correctly, and in any case limited its application to cases where the
plaintiff did not knowingly and expressly waive the RFRA defense.
Judge Sotomayor, by the way, was the judge who dissented in Lyght and
argued that RFRA did not displace the ministerial exception.
See Rweyemamu v. Cote, 06-1041 (2nd Cir. 2008):
"Hankins v. Lyght and the Application of RFRA: We reach the question
of the ministerial exception and decide this case on constitutional
grounds notwithstanding our decision in Hankins, in which a panel of
this court decided a similar case on statutory grounds, by holding
that RFRA applied as a defense to the plaintiff's discrimination
claim. Cf. Lyng v. Nw. Indian Cemetary Protective Ass'n, 485 U.S. 439,
445 (1988) ("A fundamental and longstanding principle of judicial
restraint requires that courts avoid reaching constitutional questions
in advance of the necessity of deciding them."). The statutory
argument is not available in this case because defendants knowingly
and expressly waived a RFRA defense.
...
Notwithstanding our own doubts about Hankins's determination that RFRA
applies to actions between private parties when the offending federal
statute is enforceable by a government agency,2 there is no need for
us to wrestle with RFRA's applicability because the defendants in this
case, unlike in Hankins, have 2 First, we think the text of RFRA is
plain, see Leocal v. Ashcroft, 543 U.S. 1 , 8 (2004) ("Our analysis
begins with the language of the statute."), in that it requires the
government to demonstrate that application of a burden to a person is
justified by a compelling governmental interest. See 42U.S.C. § 2000bb
1(b) (stipulating that government may only burden a person's exercise
of religion if "it demonstrates" that it is necessary (emphasis
added)); Hankins, 441 F.3d at 114-15 (Sotomayor, J., dissenting) ("The
statute defines `demonstrate' as `meet[ing] the burdens of going
forward with the evidence and of persuasion.' 42 U.S.C. § 2000bb-2(3).
Where, as here, the government is not a party, it cannot `go[]
forward' with any evidence."). Thus, we do not understand how it can
apply to a suit between private parties, regardless of whether the
government is capable of enforcing the statute at issue. See also
42U.S.C. § 2000bb-1(c) (providing for "appropriate relief against a
government" (emphasis added)); Tomic v. Catholic Diocese, 442 F.3d
1036, 1042 (7th Cir. 2006), cert. denied, 127 S. Ct. 190 (2006);
Worldwide Church of God v. Phila. Church of God, Inc., 227 F.3d 1110,
1121 (9th Cir. 2000) (suggesting that RFRA should not apply to suits
between private parties); Redhead v. Conference of Seventh-Day
Adventists, 440 F. Supp. 2d 211, 218 (E.D.N.Y. 2006).
Second, there are strong policy reasons not to apply RFRA to an action
by a private party seeking relief against another private party. RFRA
does not apply to state law. Boerne, 521 U.S. 507. Thus, disparate
treatment of federal- and state-law claims is assured -- consideration
of the former under RFRA and the latter under NLRB v. Catholic Bishop,
440 U.S. 490 (1979); cf. Hutchison v. Thomas, 789 F.2d 392 (6th Cir.
1986) (dismissing common law claims under ministerial exception).
waived a RFRA defense.
Under Hankins, [a] party may certainly waive or forfeit a RFRA defense
by failing to argue that a law or action substantially burdens the
party's religion. . . . Where a party fails to assert a substantial
burden on religious exercise before a district court, therefore, the
party may not raise that issue . . . for the first time on appeal. 441
F.3d at 104. Here, the defendants never once mentioned RFRA in their
motion to dismiss before the district court, nor did they ever argue
that Title VII substantially burdens their religion. Their arguments
to the district court were premised entirely on the ministerial
exception and the Free Exercise Clause's requirement that churches be
free from government interference in matters of church governance and
administration.
...
Because the defendants explicitly waived any defense based on a
violation of RFRA after they became aware of Hankins, we find that
they executed an effective waiver of a known right. See Curtis
Publ'g Co. v. Butts, 388 U.S. 130, 143 (1967) ("[A]n effective waiver
must . . . be one of a `known right or privilege.'" (citation
omitted)); cf. id. at 145 ("We would not hold that Curtis waived a
`known right' before it was aware of the New York Times decision.").
We therefore analyze the case on the primary grounds argued by the
parties -- the application of the ministerial exception -- and need
not further address Hankins
Re: Ministerial exception and breach of contract claims
<<>> We have to be pretty careful here. It is true that, from an ex post perspective, churches might be happy to escape contracts they've come to regret. But from an ex ante perspective refusing to enforce contracts would be the equivalent of saying that churches couldn't enter them, which could severely hamper their activities. It might be, of course, that enforcing some contracts would still be beyond the power of the courts because of the risks of entanglement, but casting that net very wide would not be a church-friendly act. This may or may not be the same point about waiving constitutional rights; it may be about discriminating against churches. Charlie |--> |__| |--> >-| | | >-| |--> |Charles A. Sullivan | |Professor of Law | |Seton Hall Law School | |One Newark Center | |Newark, NJ 07102 | |Tel.: 973· 642·8870 | |Fax: 973· 642·8194| |--> >-| | | |SSRN Page | |Seton Hall Law School Faculty Page | |Employment Discrimination Casebook Page | >-| ___ 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.
RE: Ministerial exception and breach of contract claims
Well, whistleblower claims are still a form of antidiscrimination claim; the statute or tort cause of action just bans discrimination based on whistleblowing conduct, rather than based on various forms of status. Would that fully apply to breach of contract claims for damages? Among other things, might an employment contract constitute a voluntary waiver of the church's rights not to have its employment decisions scrutinized, simply because the church is expressly promising to perform certain tasks that it itself chose (i.e., pay money), rather than having obligations imposed upon it by state law? Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Michael masinter > Sent: Wednesday, July 30, 2008 3:09 PM > To: Law & Religion issues for Law Academics > Subject: Re: Ministerial exception and breach of contract claims > > Florida courts likely would dismiss for lack of subject > matter jurisdiction if Cooper were a ministerial employee. > See Archdiocese of Miami, Inc. v. Minagorri, 954 So.2d 640 > (Fla. App. 2007), review dismissed, 2008 WL 2608697 (Fla. 2008). > > Michael R. Masinter 3305 College Avenue > Professor of Law Fort Lauderdale, FL 33314 > Nova Southeastern University (954) 262-6151 (voice) > Shepard Broad Law Center (954) 262-3835 (fax) > [EMAIL PROTECTED] Chair, ACLU of Florida > Legal Panel > > On Wed, 30 Jul 2008, Volokh, Eugene wrote: > > > Cooper v. Church of St. Benedict, 2008 WL 2894699 (Pa. Super. > > 2008), concludes that plaintiff's breach of employment agreement > > complaint can't be dismissed, because there isn't enough > evidence to > > show that her position as music director at a Catholic church is > > ministerial. But does the exception even apply to a breach of > > contract claim, where the contract doesn't seem to have any > provisions > > that require interpretation of church doctrine? Or would > determining > > whether she was satisfactorily performing her contractual duties -- > > even in the absence of theological language in the contract -- > > necessarily involve such entanglement that a civil court > can't enforce > > such a contract? > > > > Eugene > > > > ¶ 3 Cooper's Second Amended Complaint contains just twelve > paragraphs > > and one exhibit. Cooper alleges that on or about January 1, > 2000, she > > entered into a verbal agreement with the Church to play the > organ at > > masses for payment of $275 per week. Second Amended > Complaint at ¶ 3. > > She further alleges that the oral contract was "renewable > yearly for a > > period of six years", and that the parties did in fact renew the > > verbal agreement each year from 2001-2005. Id. at ¶ 3-4. Cooper > > alleges that during the summer of 2005, the parties agreed to amend > > the contract by verbal agreement to increase her > compensation to $283 > > per week and to make the contract renewable for another six > years. Id. > > at ¶ 5. Cooper alleged that the parties renewed the oral > contract for > > another year in January 2006, id. at ¶ 6, but that in April > 2006 the > > Church by letter attempted to unilaterally reduce her pay > to $50 per > > week. Id. at ¶ 9 and Exhibit A. Finally, she alleges that > commencing > > in 2001 she also voluntarily assumed the duties of music > director for > > no additional pay until a replacement could be found, and > that when a > > replacement was hired in April 2006 she resumed her > contractual duties > > as organist. Id. at 7-8. > > > > ¶ 4 The trial court granted the Church's preliminary > objections and dismissed Cooper's Second Amended Complaint. > In its written opinion, the trial court offered the following > reasons for its disposition of the case: "We accept the > argument of [the Church] that [Cooper's] contract claim > against Defendant Roman Catholic Church is barred by the Free > Exercise Clause of the First Amendment to the United States > Constitution which prohibits judicial encroachment upon > decisions made by a religious institution concerning the > employment of its ministers. Because the Roman Catholic > Church views music as an integral part of its Catholic > worship, the Organist/Musical Director is considered a > minister of the Church. Therefore, this Court has no subject > matter jurisdiction." ... > > > > ¶ 6 Under the "ministerial exception," the
Ministerial exception and breach of contract claims
Cooper v. Church of St. Benedict, 2008 WL 2894699 (Pa. Super. 2008), concludes that plaintiff's breach of employment agreement complaint can't be dismissed, because there isn't enough evidence to show that her position as music director at a Catholic church is ministerial. But does the exception even apply to a breach of contract claim, where the contract doesn't seem to have any provisions that require interpretation of church doctrine? Or would determining whether she was satisfactorily performing her contractual duties -- even in the absence of theological language in the contract -- necessarily involve such entanglement that a civil court can't enforce such a contract? Eugene ¶ 3 Cooper's Second Amended Complaint contains just twelve paragraphs and one exhibit. Cooper alleges that on or about January 1, 2000, she entered into a verbal agreement with the Church to play the organ at masses for payment of $275 per week. Second Amended Complaint at ¶ 3. She further alleges that the oral contract was "renewable yearly for a period of six years", and that the parties did in fact renew the verbal agreement each year from 2001-2005. Id. at ¶ 3-4. Cooper alleges that during the summer of 2005, the parties agreed to amend the contract by verbal agreement to increase her compensation to $283 per week and to make the contract renewable for another six years. Id. at ¶ 5. Cooper alleged that the parties renewed the oral contract for another year in January 2006, id. at ¶ 6, but that in April 2006 the Church by letter attempted to unilaterally reduce her pay to $50 per week. Id. at ¶ 9 and Exhibit A. Finally, she alleges that commencing in 2001 she also voluntarily assumed the duties of music director for no additional pay until a replacement could be found, and that when a replacement was hired in April 2006 she resumed her contractual duties as organist. Id. at 7-8. ¶ 4 The trial court granted the Church's preliminary objections and dismissed Cooper's Second Amended Complaint. In its written opinion, the trial court offered the following reasons for its disposition of the case: "We accept the argument of [the Church] that [Cooper's] contract claim against Defendant Roman Catholic Church is barred by the Free Exercise Clause of the First Amendment to the United States Constitution which prohibits judicial encroachment upon decisions made by a religious institution concerning the employment of its ministers. Because the Roman Catholic Church views music as an integral part of its Catholic worship, the Organist/Musical Director is considered a minister of the Church. Therefore, this Court has no subject matter jurisdiction." ... ¶ 6 Under the "ministerial exception," the Free Exercise Clause of the First Amendment of the United States Constitution prohibits courts from exercising subject matter jurisdiction in cases where the court's involvement would encroach on decisions made by religious institutions concerning employment of ministers. Fraser v. The Salvation Army, 1998 U.S. Dist. LEXIS 209 at *8 (E.D.Pa.1998). Rooted in the First Amendment's guarantee of religious freedom, the ministerial exception precludes courts from considering claims involving the employment relationship between a religious institution and its ministerial employees, based on the institution's constitutional right to be free from judicial interference in the selection of those employees. Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir.2007). ¶ 7 The ministerial exception applies only to ministers, and whether a person is or is not a minister requires an evaluation of the person's actual functions within the church. For purposes of the ministerial exception, courts have applied a "ministerial-function" test, pursuant to which the exception applies "if primary duties include teaching, spreading the faith, church governance, supervision of a religious order, or supervision of participation in religious ritual and worship." Petruska v. Gannon University, 462 F.2d 294, 304 n. 6 (3d Cir.2006) (citing Rayburn v. Gen'l Conf. of Seventh Day Adventists, 772 F.2d 1164, 1166 (4th Cir.1985) ¶ 8 In granting the Church's preliminary objections, the trial court erred by concluding, as a matter of law, that because "the Roman Catholic Church views music as an integral part of its Catholic worship", anyone who holds the position of "Organist/Musical Director" is a minister for purposes of the ministerial exception. We find no basis in either state or federal cases applying the ministerial exception for such a per se classification based merely upon the person's title ¶ 13 Alternatively, the Church asks that we affirm the trial court's decision based upon Pennsylvania's presumption that all e
Re: Maryland high court rules that organist doesn't fall within Title VII "ministerial exception"
Sorry -- cut-and-paste error in a post that has nothing to do with religion or this list. Please ignore. -- Original message -- From: [EMAIL PROTECTED] not fear the wrath of an armed people. -- Original message -- From: "Volokh, Eugene" <[EMAIL PROTECTED]> > Maryland high court rules that organist doesn't fall within Title VII > "ministerial exception." Archdiocese of Washington v. Moersen, 2007 WL > 1703483 (Md. June 14), http://mdcourts.gov/opinions/coa/2007/69a05.pdf > ___ > 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.
Re: Maryland high court rules that organist doesn't fall within Title VII "ministerial exception"
not fear the wrath of an armed people. -- Original message -- From: "Volokh, Eugene" <[EMAIL PROTECTED]> > Maryland high court rules that organist doesn't fall within Title VII > "ministerial exception." Archdiocese of Washington v. Moersen, 2007 WL > 1703483 (Md. June 14), http://mdcourts.gov/opinions/coa/2007/69a05.pdf > ___ > 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.
Maryland high court rules that organist doesn't fall within Title VII "ministerial exception"
Maryland high court rules that organist doesn't fall within Title VII "ministerial exception." Archdiocese of Washington v. Moersen, 2007 WL 1703483 (Md. June 14), http://mdcourts.gov/opinions/coa/2007/69a05.pdf ___ 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.
3rd Cir ministerial exception case
The 3rd Circuit issued a new decision today in Petruska v. Gannon University that brings it into line with the rest of the circuits on the scope of the ministerial exception doctrine. (A prior decision in the case was withdrawn after rehearing). A link to the decision is here: http://www.ca3.uscourts.gov/opinarch/051222pa.pdf Derek L. Gaubatz Director of Litigation The Becket Fund for Religious Liberty 1350 Connecticut Avenue, NW, Suite 605 Washington DC 20036 202 349-7208 (phone) 202 955-0090 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Friday, September 01, 2006 1:50 PM To: Law & Religion issues for Law Academics Subject: Lofton/God/polygamy "Bobby" asks some good questions. But before I respond, let me, please, refresh our memories as to exactly what the context of our discussion here is. The context here is what Mr. Finkelman said which is: "Biblical law of course allows polygamy. If it was good enough to the Biblical patriarch and King Solomon, why isn't good enough for people today?" COMMENT: I believe Mr. F's obvious assumption that "Biblical law of course allows" polygamy because people in the Bible did it and that's good enough for us today is a poor hermeneutic that is very dangerous. OK, now to what "Bobby" writes, please. "Bobby": "How much weight does the absence of such a quote have in a discussion of what God does or does not approve of?" COMMENT: Didn't say there was no such quote -- though I doubt there is one showing that God APPROVES polygamy. I merely asked Mr. F for Scripture to support what he said since he was talking about God's Law. I would strongly advise that whenever you're talking about what you think God's Law explicitly or implictly "allows," and by this word "allow" you're leaving the impression that God APPROVES of that which He "allows," yes, indeed, I think what you're saying must be on a solid Scriptural basis. We should not talk loosely about God and what we believe He says, thinks, approves or "allows." Be very careful here. "Bobby:" "What counts as God approving of a practice?" COMMENT: If you say God approves of a practice, I'd say the burden of proof is on YOU. Tell me what makes you think what you think. Show me the basis for your thinking in the Bible. "Bobby": "Must the Bible explicitly say that God approves of a particular practice to infer that He approves of it? Must He specifically state his disapproval?" COMMENT: No, I'd say certain things can be known by a reasonable inference from Biblical passages. "Bobby": "Does God ever reproach Abraham for his marriage practices? Aren't there many practices described in the Bible of which God approves--common practices--despite God never explicitly stating is approval?" COMMENT: By reasonable inference, as one of my Bible dictionaries says, Scripture presents monogamy as the divine ideal. The Creator made marriage as a union between one man and one woman . Apparently polygamy, like divorce, was tolerated because of the hardness of peoples' hearts . After the time of Moses, polygamy continued to be practiced, especially by wealthy individuals, such as Gideon, Elkanah, Saul, and David <1 Sam. 1:2; 2 Sam. 5:13; 1 Kin. 11:3>. But the most famous polygamist in the Bible was King Solomon: "And he had seven hundred wives, princesses, and three hundred concubines; and his wives turned away his heart" <1 Kin. 11:3>. The criticism of polygamy expressed in , therefore, is not surprising: the ideal king to whom Israel's obedience can be rightly given shall not "multiply wives for himself, lest his heart turn away." John Lofton, Editor, TheAmericanView.com; Recovering Republican... P.S. This Saturday (September 2), from 1 p.m. until 4 p.m. (Eastern Standard Time), our "The American View" radio show will be on "The Faith & Freedom Network." You can hear our program this coming Saturday by going to this Network's Web site www.faithandfreedomnetwork.com and clicking on "Listen Now" at the top of the page. The programs you will hear this coming Saturday are, in this order: (1) A new program where Michael Anthony Peroutka (Constitution Party Presidential candidate in 2004)and I introduce ourselves with some biographical information; and we examine in detail what exactly THE American View was and still is -- a distinct view based on Biblical Christianity; (2) Our interview with Terri Schiavo's lawyer David Gibbs who has written a new book about her murder (this is the same Program 73 which is on our Web site); and (3) An older "TAV" show in which Islam expert Robert Spencer tells the truth about Islam and we wonder why Presi
Judge Becker Posthumously Creates Circuit Split on Ministerial Exception
The U.S. Court of Appeals for the Third Circuit today issued a 2-1 decision rejecting a ministerial-exception motion to dismiss a Title VII sex discrimination claim brought by the chaplain of a Chatolic college who was constructively dismissed. http://www.ca3.uscourts.gov/opinarch/051222p.pdf The majority opinion was written by Judge Edward Becker, who died last Friday, and was joined by Judge Nygaard (both Republican appointees). Judge Smith dissented. The decision raises a host of interesting and important questions. 1. For a start, can a dead judge's vote count? (See Howard Bashman's query here: http://howappealing.law.com/052406.html#014771.) If this were the Supreme Court, the answer would be "no," I think, because the Court's traditional practice has been that a Justice's vote is not counted unless the Justice is on the Court both at the time of oral argument (when "the case is submitted") and when the judgment is issued. That's why, for example, there are a handful of cases being re-argued this Term in which Justice O'Connor (presumably) was the fifth vote in the majority. What I don't know is whether this is simply a matter of Supreme Court practice, or whether it is compelled by Article III or by statute. In today's Petruska decision, it seems fairly plain that the opinion was complete and merely going through the administrative process in the clerk's office when Judge Becker died last week -- and that therefore it's virtually inconceivable that he (the author of the opinion) would have changed his mind between Friday and today. But not impossible. Does anyone have any thoughts on whether there is an Article III or a statutory obstacle to what the CTA3 did today? Possible minor wrinkles in that question: Does it matter that the court itself could grant en banc review -- or deny such review -- before the mandate is issued? Indeed, what if Judge Becker had died after the opinion was released but before the mandate issued? Would that change the answer to the question? If the issuance of the opinion is barred by the Constitution or by statute, could Judge Smith "cure" the problem by formally shifting his vote to "reverse," out of respect for Judge Becker and the panel on which they both sat -- even while continuing to publish his "dissent"? 2. Part of the Becker opinion suggests that the SCOTUS's religious-organization autonomy cases are solely about preventing courts from having to adjudicate questions of religious doctrine, religious belief and church regulation, and that where a case can be decided without such adjudication of religious questions, generally applicable laws can and should be applied to churches and religious organizations. See pages 37-38 (citing Jones and Smith). This would be a truly radical doctrinal decision: Until now, no court has held that Smith applies to ministerial decisions. But the court does not follow through on its logic. At several places in the opinion (e.g., pages 32, 47, 51), Becker acknowledges that if a Church does discriminate on the basis of sex as a matter of religious doctrine in ministerial decisions (e.g., in deciding that only men may be priests), it will have a constitutional defense to title VII liability, even though title VII is a generally applicable law and even though in such a case a Court would not necessarily have to resolve any questions of religious doctrine, religious belief and church regulation. 3. The case is decided on a motion to dismiss (i.e., the court of appeals simply permits the case to go forward to discovery and possible trial). At this stage, the college has not asserted any religious basis for dismissing the plaintiff. Judge Becker is careful to explain that if the college does allege a religious basis for its decisions, the case would have to proceed without the plaintiff being able to question the bona fides, or legitimacy, of the college's religious beliefs or doctrines --- which might well result in a victory for the defendants . . . but not necessarily. Here's the key passage describing what would happen in such a case: Gannon may offer an explanation for Petruskas demotion that is grounded in religious principles or internal church regulations. The mere assertion of either type of explanation would not necessarily require the dismissal of Petruskas claims. . . . Gannon might argue that Petruska was demoted for reasons independent of gender discrimination. For example, Gannon might assert that Petruska was demoted for failing to attend mass, in contravention of Catholic doctrine. In th[at] case, the task of the District Court or the jury would be to determine whether the challenged employment action was motivated by the proffered religious doctrine or by sex discri
RE: The Posner Ministerial Exception Decision
From time to time, we discuss the meaning of the compelling interest test as a restriction on free exercise. For an interesting discussion of compelling interest (and ultimate rejection of that standard) see a decision of the South African Constitutional Court in Christian Education South Africa v. Minister of Education, 2000(4) SA757(CC), a corporal punishment case. The Court opts for a middle standard ,which may supply an alternative to compelling interest more rigorous than rational basis which some on this list have been seeking, including in some of his pre-judgeship writings, Michael McConnell. The case is readily available on the Court’s really first rate website www.constitutionalcourt.org.za. The site has easy links to international constitutional courts and other international legal materials and Justice Ginsburg’s recent address on foreign laws in the American courts. Marc Stern ___ 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.
Re: The Posner Ministerial Exception Decision
Looks like Posner is again at one of his favorite pasttimes -- writing an opinion to get included in coursebooks -- even if to be panned in many respects . . . . :)On Apr 6, 2006, at 10:42 AM, Marty Lederman wrote: In addition to his questionable comments about RFRA, there is much else worth pondering in the Posner opinion. 1. For starters, he begins his analysis with the following greatly overstated claim (p.2): "Federal courts are secular agencies. They therefore do not exercise jurisdiction over the internal affairs of religious organizations." Of course, courts often resolve disputes concerning the "internal affairs of religious organizations." The difficulty is in deciding which disputes are cognizable and which are not. Posner later concedes as much (p.5): "The ministerial exception, and the hands-off approach more generally, do not place the internal affairs of religious organizations wholly beyond secular jurisdiction." He then spends two pages giving examples of where courts do interfere with internal church governance, including some cases in which courts must "take a stand on a religious question." This discussion demonstrates, I think, that there remains virtually no coherence to the "internal governance" doctrine generally, and the "ministerial exception" in particular. 2. In his discussion, Posner includes this fascinating purported distinction: "A church could not subject its clergy to corporal punishment or require them to commit criminal acts. E.g., Employment Division v. Smith, 494 U.S. 872 (1990); United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629 (7th Cir. 2000). But it would not be constrained in its dealings with them by employment laws that would interfere with the church’s internal management, including antidiscrimination laws." WHY? What's the distinction? He doesn't say. If the Smith doctrine applies to certain internal church governance decisions, why not to others? 3. In the end, Posner rejects the plaintiff's claim because the church was asserting that the organist's dismissal was based on his choice of music for Easter services, and the dispute about whether that was the real reason (as opposed to age discrimination) "could propel the court into a controversy, quintessentially religious, over what is suitable music for Easter services." But would that aesthetic dispute really be "quintessentially religious," particularly if religious doctrine didn't have anything to say about Easter music? Posner includes this wonderfully provocative passage: [T]here is no one way to play music. If Tomic played the organ with a rock and roll beat, or played excerpts from Jesus Christ Superstar, at an Easter Mass he would be altering the religious experience of the parishioners. Among his duties as music director was that of selecting the music to be played at the various masses. That duty required him to make a discretionary religious judgment because the Catholic Church does not have rules specifying what piece of music is to be played at each type of mass. Raymond F. Glover, “Liturgical Music: Its Forms and Functions,” in Liturgy and Music: Lifetime Learning 231, 247-48 (Robin A. Leaver & Joyce Ann Zimmerman, eds. 1998). At argument Tomic’s lawyer astonished us by arguing that music has in itself no religious significance—its only religious significance is in its words. The implication is that it is a matter of indifference to the Church and its flock whether the words of the Gospel are set to Handel’s Messiah or to “Three Blind Mice.” That obviously is false. The religious music played at a wedding is not necessarily suitable for a funeral; and religious music written for Christmas is not necessarily suitable for Easter. Even Mozart had to struggle over what was suitable church music with his first patron, Archbishop Colloredo, whom the Mozart family called the “arch-booby.” “[M]usic is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred. Music is an integral part of many different religious traditions,” including the Catholic tradition. EEOC v. Roman Catholic Diocese of Raleigh, supra, 213 F.3d 795, 802-03; see also Starkman v. Evans, 198 F.3d 173, 176-77 (5th Cir. 1999). Like the plaintiff in the Starkman case, Tomic “performed tasks that were ‘traditionally ecclesiastical or religious.’ ” Id. at 177. . . . Tomic’s duties, unlike those, say, of the person who tunes the organ in St. Mary’s Cathedral, had a significant religious dimension . . . .So much going on here, one hardly knows where to begin. Of course the choice of music "alters the religious experience" of the parishioners. But that can't be the test for the ministerial exception -- and it doesn't make the choice of music itself religious, or req
Re: The Posner Ministerial Exception Decision
With respect to Posner's creating religious doctrine -- I don't know the details of the trial or appelate record, but it does seem to me that the court is simply acknowledging common fact. Many churchs designate the organist as the music minister and talk about the musical ministry. This is particularly prevalent in those denominations that use musical programming as alternate forms of liturgical service (such as the current Evangelical and Black Church relationship to Gospel). Moreover, if I recall correctly, many seminaries include courses on musical ministry. This would be particularly true for Catholic or Episcopal churchs where one of the litergical alternatives is the plainsong tradition or a variation on it and Judaism with the important place of the Kantor (sp?). Posner's decision might be troubling if none of the parties mentioned this -- but, again, the fall back is judical notice. David - Original Message - From: Marty Lederman To: Law & Religion issues for Law Academics Sent: Thursday, April 06, 2006 9:42 AM Subject: The Posner Ministerial Exception Decision In addition to his questionable comments about RFRA, there is much else worth pondering in the Posner opinion. 1. For starters, he begins his analysis with the following greatly overstated claim (p.2): "Federal courts are secular agencies. They therefore do not exercise jurisdiction over the internal affairs of religious organizations." Of course, courts often resolve disputes concerning the "internal affairs of religious organizations." The difficulty is in deciding which disputes are cognizable and which are not. Posner later concedes as much (p.5): "The ministerial exception, and the hands-off approach more generally, do not place the internal affairs of religious organizations wholly beyond secular jurisdiction." He then spends two pages giving examples of where courts do interfere with internal church governance, including some cases in which courts must "take a stand on a religious question." This discussion demonstrates, I think, that there remains virtually no coherence to the "internal governance" doctrine generally, and the "ministerial exception" in particular. 2. In his discussion, Posner includes this fascinating purported distinction: "A church could not subject its clergy to corporal punishment or require them to commit criminal acts. E.g., Employment Division v. Smith, 494 U.S. 872 (1990); United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629 (7th Cir. 2000). But it would not be constrained in its dealings with them by employment laws that would interfere with the churchs internal management, including antidiscrimination laws." WHY? What's the distinction? He doesn't say. If the Smith doctrine applies to certain internal church governance decisions, why not to others? 3. In the end, Posner rejects the plaintiff's claim because the church was asserting that the organist's dismissal was based on his choice of music for Easter services, and the dispute about whether that was the real reason (as opposed to age discrimination) "could propel the court into a controversy, quintessentially religious, over what is suitable music for Easter services." But would that aesthetic dispute really be "quintessentially religious," particularly if religious doctrine didn't have anything to say about Easter music? Posner includes this wonderfully provocative passage: [T]here is no one way to play music. If Tomic played the organ with a rock and roll beat, or played excerpts from Jesus Christ Superstar, at an Easter Mass he would be altering the religious experience of the parishioners. Among his duties as music director was that of selecting the music to be played at the various masses. That duty required him to make a discretionary religious judgment because the Catholic Church does not have rules specifying what piece of music is to be played at each type of mass. Raymond F. Glover, Liturgical Music: Its Forms and Functions, in Liturgy and Music: Lifetime Learning 231, 247-48 (Robin A. Leaver & Joyce Ann Zimmerman, eds. 1998). At argument Tomics lawyer astonished us by arguing that music has in itself no religious significanceits only religious significance is in its words. The implication is that it is a matter of indifference to the Church and its flock whether the words of the Gospel are set to Handels Messiah or to Three Blind Mice. That obviously is false. The religious music played at a wedding is not necessarily suitable for a funeral; and religious music written for Christmas is not ne
The Posner Ministerial Exception Decision
In addition to his questionable comments about RFRA, there is much else worth pondering in the Posner opinion. 1. For starters, he begins his analysis with the following greatly overstated claim (p.2): "Federal courts are secular agencies. They therefore do not exercise jurisdiction over the internal affairs of religious organizations." Of course, courts often resolve disputes concerning the "internal affairs of religious organizations." The difficulty is in deciding which disputes are cognizable and which are not. Posner later concedes as much (p.5): "The ministerial exception, and the hands-off approach more generally, do not place the internal affairs of religious organizations wholly beyond secular jurisdiction." He then spends two pages giving examples of where courts do interfere with internal church governance, including some cases in which courts must "take a stand on a religious question." This discussion demonstrates, I think, that there remains virtually no coherence to the "internal governance" doctrine generally, and the "ministerial exception" in particular. 2. In his discussion, Posner includes this fascinating purported distinction: "A church could not subject its clergy to corporal punishment or require them to commit criminal acts. E.g., Employment Division v. Smith, 494 U.S. 872 (1990); United States v. Indianapolis Baptist Temple, 224 F.3d 627, 629 (7th Cir. 2000). But it would not be constrained in its dealings with them by employment laws that would interfere with the churchs internal management, including antidiscrimination laws." WHY? What's the distinction? He doesn't say. If the Smith doctrine applies to certain internal church governance decisions, why not to others? 3. In the end, Posner rejects the plaintiff's claim because the church was asserting that the organist's dismissal was based on his choice of music for Easter services, and the dispute about whether that was the real reason (as opposed to age discrimination) "could propel the court into a controversy, quintessentially religious, over what is suitable music for Easter services." But would that aesthetic dispute really be "quintessentially religious," particularly if religious doctrine didn't have anything to say about Easter music? Posner includes this wonderfully provocative passage: [T]here is no one way to play music. If Tomic played the organ with a rock and roll beat, or played excerpts from Jesus Christ Superstar, at an Easter Mass he would be altering the religious experience of the parishioners. Among his duties as music director was that of selecting the music to be played at the various masses. That duty required him to make a discretionary religious judgment because the Catholic Church does not have rules specifying what piece of music is to be played at each type of mass. Raymond F. Glover, Liturgical Music: Its Forms and Functions, in Liturgy and Music: Lifetime Learning 231, 247-48 (Robin A. Leaver & Joyce Ann Zimmerman, eds. 1998). At argument Tomics lawyer astonished us by arguing that music has in itself no religious significanceits only religious significance is in its words. The implication is that it is a matter of indifference to the Church and its flock whether the words of the Gospel are set to Handels Messiah or to Three Blind Mice. That obviously is false. The religious music played at a wedding is not necessarily suitable for a funeral; and religious music written for Christmas is not necessarily suitable for Easter. Even Mozart had to struggle over what was suitable church music with his first patron, Archbishop Colloredo, whom the Mozart family called the arch-booby. [M]usic is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred. Music is an integral part of many different religious traditions, including the Catholic tradition. EEOC v. Roman Catholic Diocese of Raleigh, supra, 213 F.3d 795, 802-03; see also Starkman v. Evans, 198 F.3d 173, 176-77 (5th Cir. 1999). Like the plaintiff in the Starkman case, Tomic performed tasks that were traditionally ecclesiastical or religious. Id. at 177. . . . Tomics duties, unlike those, say, of the person who tunes the organ in St. Marys Cathedral, had a significant religious dimension . . . . So much going on here, one hardly knows where to begin. Of course the choice of music "alters the religious experience" of the parishioners. But that can't be the test for the ministerial exception -- and it doesn't make the choice of music itself religious, or require the court to consider religious questions. The tuning of the organ, as well (see the final sentence in the passage above) also alters
Re: ministerial exception
The Petruska case, which Marci refers to below, models precisely
what I said in my earlier posts about the ministerial exception. Ms.
Petruska was employed as a Chaplain at a Catholic university, and
the court agreed with the defendants that her post entailed
ministerial (though not "priestly") functions. It therefore dismissed
her suit, which was based on grounds of gender discrimination and
unlawful retaliation for whistleblowing re: sexual harassment by the
university president, on the ground that the ministerial exception
barred the suit. (That the university held itself out to Petruska and
others as an employer that respected equal oportunity for women
made no difference in the outcome, though the plaintiff argued that
it should.) The district court opinion is quite thorough, and I
commend it to anyone interested in learning about the current state
of the law on the exception, including the harassment point that
several of us discussed yesterday.
Chip
On 14 Mar 2005 at 21:08, [EMAIL PROTECTED] wrote:
> Chip-- How does this principle play out in the Petruska case now
> heading to the 3d Cir? The district court threw out a woman's claim
> against the Catholic Church on the theory of the "ministerial
> exception." She was a Catholic chaplain who was fired after being a
> whistlebloweron clergy abuse in the church. She claimed gender issues
> were involved. District court held that her claim was barred by the
> ministerial exception.
>
> Marci
>
>
> In a message dated 3/14/2005 4:44:13 P.M. Eastern Standard Time,
> [EMAIL PROTECTED] writes:
> for now the ministerial exception doctrine has held firm in every
> non-harassment case of discrimination brought by a member of the
> clergy against his or her denomination.
>
>
>
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
___
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Re: ministerial exception
Chip-- How does this principle play out in the Petruska case now heading to the 3d Cir? The district court threw out a woman's claim against the Catholic Church on the theory of the "ministerial exception." She was a Catholic chaplain who was fired after being a whistleblower on clergy abuse in the church. She claimed gender issues were involved. District court held that her claim was barred by the ministerial exception. Marci In a message dated 3/14/2005 4:44:13 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: for now the ministerial exception doctrine has held firm in every non-harassment case of discrimination brought by a member of the clergy against his or her denomination. ___ 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.
Re: ministerial exception
Marci:
I know of no cases challenging the exclusion of women from the
Catholic priesthood. But if denominations that purport to treat
women and men equally for clergy positions get the benefit of the
ministerial exception, as they do, it would seem to follow a fortiori
that the Catholic Church, Orthodox Jewish congregations, and
others that exclude women from the clergy as a matter of religious
doctrine would get the exception as well.
As for whether the sexual harassment cases represent, as I say, an
"exception to the ministerial exception," or, as you say, "are part of
> the evolving law being applied to religious entity's employment
> practices and point the way to the future," only time will tell. But for now
> the ministerial exception doctrine has held firm in every non-harassment case
> of discrimination brought by a member of the clergy against his or her
> denomination.
By the way -- you alluded earlier to cases about race discrimination
and the ministerial exception. Are you aware of any case in which
the clergy-plaintiff alleged race discrimination, the religious entity
defendant pleaded the ministerial exception, and the court rejected
the defense and let the case go forward? I know of no such cases
(or of cases that go the other way, where the defense is accepted),
and I would like to learn of any cases about race discrimination and
the ministerial exception.
Chip
On 14 Mar 2005 at 16:19, [EMAIL PROTECTED] wrote:
> Chip-- I never said that the Catholic Church had experienced such
> litigation; we were talking about hypotheticals.
>
> Isthe absence of Catholic Church gender litigationbecause these cases
> have never been brought, or because the claimis not cognizable
> underthe ministerial exception? With respect to Bollard and Elvig,
> they are not simply exceptions to the general rule, but are part of
> the evolving law being applied to religious entity's employment
> practices and point the way to the future.
>
> Marci
>
> In a message dated 3/14/2005 2:35:47 P.M. Eastern Standard Time,
> [EMAIL PROTECTED] writes:
> The ministerial exception cases have never involved the Catholic
> priesthood or any denomination which claims a sincere religious
> belief in favor of gender exclusion from the clergy.
>
>
>
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
___
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Re: ministerial exception
Chip-- I never said that the Catholic Church had experienced such litigation; we were talking about hypotheticals. Is the absence of Catholic Church gender litigation because these cases have never been brought, or because the claim is not cognizable under the ministerial exception? With respect to Bollard and Elvig, they are not simply exceptions to the general rule, but are part of the evolving law being applied to religious entity's employment practices and point the way to the future. Marci In a message dated 3/14/2005 2:35:47 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: The ministerial exception cases have never involved the Catholic priesthood or any denomination which claims a sincere religious belief in favor of gender exclusion from the clergy. ___ 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.
Re: ministerial exception
Marci is correct that " the ministerial
exception is not some blanket protection for anything that happens
between clergy and religious institution," because courts have
tended not to permit religious entities to rely on it to get rid of claims
of negligent supervision in cases of harm to third party victims of
clergy (e.g,. sexual abuse victims.)
But she is wrong when she asserts that, under the ministerial
exception, "if an abusive or discriminatory practice is not motivated
by a sincere religious belief, the claim can go forward in the courts."
The ministerial exception cases have never involved the Catholic
priesthood or any denomination which claims a sincere religious
belief in favor of gender exclusion from the clergy. All of the
ministerial exception cases (and there are many) involve
denominations that DO ordain female clergy, but assert that courts
cannot adjudicate claims of pretext when the dismissed
clergywoman asserts gender discrimination, and the religious
employer might be obliged to show that it had a non-gendered
reason for the dismissal. Such inquiries into the possibility of
pretext in the employment relation with clergy, the cases uniformly
hold, is constitutionally impermissible. The harassment cases like
Bollard and Elvig are thus exceptions to the ministerial exception
(justified, it is said, because they can be adjudicated without a court
second-guessing a religious entity's evaluation of a member of the
clergy), with the remedial limitiations that Mark and Doug have
noted.
Chip Lupu
On 14 Mar 2005 at 14:01, [EMAIL PROTECTED] wrote:
> Mark-- Elvig does not gainsay my point that . So >
> Marci
>
>
> In a message dated 3/14/2005 12:00:00 P.M. Eastern Standard Time,
> [EMAIL PROTECTED] writes:
> With regard to Marci's point on the ministerial exception having
> no bite in the Ninth Circuit where the claim is for sexual
> harassment, I think she overstates the case. The most recent Ninth
> Circuit case on the issue (Elvig) severely limits the remedies
> that an allegedly sexually harassed minister can seek
>
>
>
Ira C. ("Chip") Lupu
F. Elwood & Eleanor Davis Professor of Law
The George Washington University Law School
2000 H St., NW
Washington D.C 20052
(202) 994-7053
[EMAIL PROTECTED]
[EMAIL PROTECTED]
___
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Ministerial Exception
Very interesting set of concurrences and dissents in today's CTA9 denial of an en banc petition in a ministerial "exception" case: http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9C615790509C87F488256FA500055365/$file/0235805o.pdf?openelement ___ 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.
