Re: Judge Becker Posthumously Creates Circuit Split on MinisterialException
UPDATE: The Court of Appeals for the Third Circuit, sitting en banc, granted a petition for rehearing in this case today, and without opinion vacated the judgment and directed a panel rehearing before a newly constituted panel (comprising Judges Smith (who dissented from the Becker decision), Greenberg and Cowen). No indication whether the order was based, in whole or in part, on the fact that Judge Becker had died and that the other member of the majority, Judge Nygaard, is now recused for some reason. http://www.ca3.uscourts.gov/opinarch/051222ppan.pdf (Thanks to Howard Bashman for the link.) - Original Message - From: Marty Lederman To: Law & Religion issues for Law Academics ; CONLAWPROF@lists.ucla.edu Cc: [EMAIL PROTECTED] Sent: Wednesday, May 24, 2006 4:32 PM Subject: Judge Becker Posthumously Creates Circuit Split on MinisterialException 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
Re: Judge Becker Posthumously Creates Circuit Split on MinisterialException
See Mayor and City Council of Baltimore v. Mathews, 571 F.2d 1273 (4th Cir. 1978): "Upon consideration of the appellees' petitions for rehearing and the response filed by the appellants, we conclude that Judge Craven's vote cannot be counted in the disposition of these appeals. Judge Craven died after approving Parts I and II of the opinion that Judge Winter wrote expressing the views of a majority of the court. His death occurred, however, before the dissenting and concurring opinions were written and before the court's decision was announced. Therefore, Judge Craven's approval of Judge Winter's draft cannot be tallied for the purpose of deciding the appeals. Cf. United States v. American-Foreign Steamship Corp., 363 U.S. 685, 80 S.Ct. 1336, 4 L.Ed.2d 1491 (1960). Accordingly, we withdraw the opinions that were previously filed, affirm by an equally divided court the district court's orders granting preliminary injunctions, and remand the case to the district court for trial. Regrettably, these cases have been delayed by our initial misapprehension of the effect of Judge Craven's death on their outcome. Consequently, we request the district court to try them and enter a final order as expeditiously as possible." >>> [EMAIL PROTECTED] 5/24/2006 1:32:48 PM >>> 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 c
RE: Judge Becker Posthumously Creates Circuit Split on MinisterialException
For a case reaching a similar conclusion, I think, see Bollard v. California Province, Society of Jesus.,196 F.3d 940 (1999) Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Wednesday, May 24, 2006 4:33 PM To: Law & Religion issues for Law Academics; CONLAWPROF@lists.ucla.edu Cc: [EMAIL PROTECTED] Subject: Judge Becker Posthumously Creates Circuit Split on MinisterialException 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 Petruska’s 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 Petruska’s claims. . . . Gannon might argue that Petruska was demoted for reasons independent of gender discrimination.
