RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
Friends -- with respect to Marci's suggestion that religious entities be required to inform people in ministerial positions about the fact that such entities have a constitutional right to hire-and-fire that is not subject to many employment-law constraints . . . it seems to me that people often suffer what I think Marci and I would agree are harms as a result of others' exercise of constitutional rights (in particular, the freedom of speech). That is, the Constitution does have the effect (and, it seems to me, *was* intended to have the effect) of insulating *some* harms (e.g., the pain caused by offensive speech) caused from correction or prevention by the government. Do we think, though, that, as a general matter, rights holders should have to inform those with whom they are in relationships and who might be harmed by the exercise of the rights holders' rights that the rights might, in fact, be exercised? Should a reporter, for example, have to warn anyone whom she interviews about the harm-causing-potential of the rule in New York Times v. Sullivan? I agree, for what it's worth, that it makes good sense for attorneys representing churches and religious institutions to advise their clients to inform those in ministerial positions (that is, in any position that the church regards as ministerial) about their (the institutions') religious liberty. But I'm wondering if Marci's proposed warning requirement applies only to religious employers (and if so, why? Because they are employers? Because they are religious?) or to all whose rights-exercise might cause harm? 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 pagehttp://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235 Blogs: Prawfsblawghttp://prawfsblawg.blogs.com/ Mirror of Justicehttp://www.mirrorofjustice.blogs.com/ Law, Religion, and Ethicshttp://lawreligionethics.net/ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Friday, July 16, 2010 3:44 PM To: religionlaw@lists.ucla.edu Subject: Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Bob makes very good points but I'm not persuaded. Religious employers can be required to report child abuse by their employees, so why can't they be required to provide legal boilerplate to incoming employees? If Bob is right, we have serious problems in my view. The public policy problem is that no religious organization is going to make such a warning without being prodded by the law (or insurance cos., but they do not prod without legal --aka financial -- consequences). So we are stuck with obvious harm to employees of religious organizations but no solution. I am a firm believer that the Constitution was not intended and should not make it impossible for government to prevent or remedy substantial harm. So that leaves the government -- charged with protecting citizens from harm -- on Bob's theory hamstrung from requiring religious employers to issue a warning regarding the state of the law. So how does the government protect its citizens? I guess there are several public education options: (1) public service announcement: if you are considering or are working for a religious institution in a religious capacity, you need to understand that it is immune under judicial doctrine from anti-discrimination laws, including sexual harassment and gender discrimination (2) on every W-2, which the religious employer must provide to every full-time employee, right?, there is boilerplate saying the same as above. Here is another option-- how about no religious organization can be eligible for faith-based funding unless it provides to its employees a statement that it is immune from the anti-discrimination laws? Marci In a message dated 7/16/2010 3:13:44 P.M. Eastern Daylight Time, rtut...@law.gwu.edu writes: Marci's idea of a warning for ministerial employees would certainly be a prudent step for religious employers to take on their own initiative, but I don't think the state could impose such a requirement as a condition of the religious employer invoking the exception in litigation -- the exception seems to me jurisdictional, not something derived from a religious organization's claim of autonomy (about which there is good reason to be dubious) but rather from courts' constitutional inability to determine what is adequate qualification for or performance of the ministerial role. Bob Tuttle ___ 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
Re: 10th Circuit Finds Church Immune From Workplace DiscriminationSuit
Employees whose employers employ less than 15 people also have no protection under federal law Marc - Original Message - From: religionlaw-boun...@lists.ucla.edu religionlaw-boun...@lists.ucla.edu To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Sent: Mon Jul 19 10:45:09 2010 Subject: Re: 10th Circuit Finds Church Immune From Workplace DiscriminationSuit Rick is casting a larger net than my post suggested. The relevant universe here is the universe of employees. As in the speech cases (and in particular the defamation cases since we're dealing with employment), there should be some weighing of interests here. Right now, in my view, the balance is out of whack in this universe. (If there are other harms arising from other First Amendment rights that require redressing, I'm all in favor of exploring those as well.) Employees assume that they cannot be discriminated against on the basis of gender (including a right not to be a victim of sexual harassment). It turns out in most states that they are UNLESS the employer is religious. (Don't forget the Supreme Court has not yet ruled on the ministerial exception so whether it is a robust or less robust or not a constitutional right still remains in limbo.) So a bishop who creates a hostile working environment or who persistently engages in sexual innuendo typically is immune or who arbitrarily decides a man is a better choice than a better qualified woman is immune. Employees are doubly disabled in these scenarios. First, as Americans the culture encourages them to trust religious leaders (though surely that is declining in light of the steady investigative reporting suggesting folks do that at their peril). More importantly, because of the ministerial exception, few cases are ever filed, let alone litigated, and, therefore, the incidence of gender discrimination is not publicized. So women are going into these jobs with expectations of fairness that are not borne out, because of a First Amendment doctrine. One option is to carve back on the right so that no employer who fails to advise an employee of this issue can claim it. Bob objected to that, because the ministerial exception is jurisdictional. But if this is the result, why should it be? Why isn't it a right, like the freedom of speech in defamation cases, which carries with it some obligations and weighing, depending on the scenario? One option is to have the government inform applicants through public education, as in add language to the tax forms. Another is to have anyone who is taking government funds for mission have to agree as a condition of receiving the funds to inform employees about the risks they are taking by taking the employment. Is Rick saying none of these options are constitutional and/or desirable? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 7/19/2010 9:50:33 A.M. Eastern Daylight Time, rgarn...@nd.edu writes: I agree, for what it’s worth, that it makes good sense for attorneys representing churches and religious institutions to advise their clients to inform those in ministerial positions (that is, in any position that the church regards as ministerial) about their (the institutions’) religious liberty. But I’m wondering if Marci’s proposed warning requirement applies only to religious employers (and if so, why? Because they are employers? Because they are religious?) or to all whose rights-exercise might cause “harm”? ___ To post, send message to Religionlaw@lists.ucla.edu 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: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
By way of reply to both Marci and Chris - I think (and Chip Lupu and I have written at some length) that the ministerial exception is jurisdictional because, at least at some level, it's not subject to waiver by the parties, any more than (post Blue Hull Memorial) a congregation/denomination could ask a court to decide which of the disputing factions was more faithful to the tradition. Most, not all but most, cases covered by the ministerial exception involve the possibility of dispute over the qualification for or performance of a ministerial role, and judgment about whether one is qualified to be a minister or has performed well in that role can't be decided by civil courts without adopting some normative -- i.e., religiously thick -- understanding of ministry. Bob On Mon, Jul 19, 2010 at 11:06 AM, Christopher Lund ed9...@wayne.edu wrote: One point of clarification, which goes to Bob Tuttle’s point more than Marci’s: Are we sure that the ministerial exception is jurisdictional? I would have thought it wasn’t. I agree it’s constitutional. So like Bob, I would think that Congress can’t diminish its scope—Congress can’t say to a religious organization, “You’ll lose this constitutional right [ministerial exception] unless you do this [inform an employee prospectively about the ministerial exception].” But why should we consider this constitutional limitation *jurisdictional*? Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (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 *hamilto...@aol.com *Sent:* Monday, July 19, 2010 10:45 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Rick is casting a larger net than my post suggested. The relevant universe here is the universe of employees. As in the speech cases (and in particular the defamation cases since we're dealing with employment), there should be some weighing of interests here. Right now, in my view, the balance is out of whack in this universe. (If there are other harms arising from other First Amendment rights that require redressing, I'm all in favor of exploring those as well.) Employees assume that they cannot be discriminated against on the basis of gender (including a right not to be a victim of sexual harassment). It turns out in most states that they are UNLESS the employer is religious. (Don't forget the Supreme Court has not yet ruled on the ministerial exception so whether it is a robust or less robust or not a constitutional right still remains in limbo.) So a bishop who creates a hostile working environment or who persistently engages in sexual innuendo typically is immune or who arbitrarily decides a man is a better choice than a better qualified woman is immune. Employees are doubly disabled in these scenarios. First, as Americans the culture encourages them to trust religious leaders (though surely that is declining in light of the steady investigative reporting suggesting folks do that at their peril). More importantly, because of the ministerial exception, few cases are ever filed, let alone litigated, and, therefore, the incidence of gender discrimination is not publicized. So women are going into these jobs with expectations of fairness that are not borne out, because of a First Amendment doctrine. One option is to carve back on the right so that no employer who fails to advise an employee of this issue can claim it. Bob objected to that, because the ministerial exception is jurisdictional. But if this is the result, why should it be? Why isn't it a right, like the freedom of speech in defamation cases, which carries with it some obligations and weighing, depending on the scenario? One option is to have the government inform applicants through public education, as in add language to the tax forms. Another is to have anyone who is taking government funds for mission have to agree as a condition of receiving the funds to inform employees about the risks they are taking by taking the employment. Is Rick saying none of these options are constitutional and/or desirable? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 7/19/2010 9:50:33 A.M. Eastern Daylight Time, rgarn...@nd.edu writes: I agree, for what it’s worth, that it makes good sense for attorneys representing churches and religious institutions to advise their clients to inform those in ministerial positions (that is, in any position that the church regards as ministerial) about their (the
Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
Professor Tuttle's explanation for why the ministerial exception is treated as jurisdictional also suggests why it should be limited to claims that implicate questions of qualifications to perform a ministerial job. Given that hostile work sexual harassment claims arise from the failure of an employer to remedy tortious sexual conduct by coworkers or supervisors directed at a particular employee, why isn't Elvig, permitting such claims to proceed, a better decision than Skrzypczak? Sexual harassment almost always takes one of two forms -- unwelcome physical conduct of a sexual nature or repeated targeted demands for sexual favors; the courts of appeals have largely eliminated sexual harassment claims based on crude language unaccompanied by unwelcome sexual touching. See, e.g., Mendoza v. Borden, Inc. 195 F.3d 1238 (11th Cir. 1999) (en banc); Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000). Recall that Meritor arose from a claim of sexual harassment that involved allegations of sexual battery. What about the ministerial exemption should insulate a ministerial employer from tort liability for sexual torts simply because the victim was an employee? The principal post 1991 Civil Rights Act remedies for hostile work sexual environment claims are compensatory damages and attorney's fees. Though injunctive relief may accompany successful claims, its scope is always discretionary, and could be adjusted or even eliminated to ensure the absence of disruption to the spiritual relationship between the church and the injured employee. But how does a claim for damages for what are in essence sexual torts implicate the rationale for the ministerial exemption? Courts do not lack subject matter jurisdiction to hear common law tort claims against religious institutions for sexual torts generally, so why isn't Elvig the proper rule? How will adjudicating the factual question of whether those torts took place within the workplace against an employee rather than within the church against a congregant enmesh the court in endless inquiries as to whether each discriminatory act was based in Church doctrine or simply secular animus as the Seventh Circuit held in Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 2003). Bluntly stated, what church makes submission to or tolerance of repeated unwelcome physical sexual advances part of church doctrine? 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 Robert Tuttle rtut...@law.gwu.edu: By way of reply to both Marci and Chris - I think (and Chip Lupu and I have written at some length) that the ministerial exception is jurisdictional because, at least at some level, it's not subject to waiver by the parties, any more than (post Blue Hull Memorial) a congregation/denomination could ask a court to decide which of the disputing factions was more faithful to the tradition. Most, not all but most, cases covered by the ministerial exception involve the possibility of dispute over the qualification for or performance of a ministerial role, and judgment about whether one is qualified to be a minister or has performed well in that role can't be decided by civil courts without adopting some normative -- i.e., religiously thick -- understanding of ministry. Bob On Mon, Jul 19, 2010 at 11:06 AM, Christopher Lund ed9...@wayne.edu wrote: One point of clarification, which goes to Bob Tuttle?s point more than Marci?s: Are we sure that the ministerial exception is jurisdictional? I would have thought it wasn?t. I agree it?s constitutional. So like Bob, I would think that Congress can?t diminish its scope?Congress can?t say to a religious organization, ?You?ll lose this constitutional right [ministerial exception] unless you do this [inform an employee prospectively about the ministerial exception].? But why should we consider this constitutional limitation *jurisdictional*? Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (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 *hamilto...@aol.com *Sent:* Monday, July 19, 2010 10:45 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Rick is casting a larger net than my post suggested. The relevant universe here is the universe of employees. As in the speech cases (and in particular the defamation cases since we're dealing with
RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
I'm not sure why, absent some judgment about the impropriety of the ministerial exemption, one would think that employees and potential employees are somehow entitled to disclosure about the way in which constitutional doctrine might frustrate what they (perhaps erroneously) to be their statutory rights. Why, indeed, not require reporters to tell persons who may qualify as public officials or figures about the way in which constitutional doctrine may impair what they might otherwise regard to be their legal protection from defamation? Even if we are especially concerned about employees, why not require that they be told, for example, that the presumed right of white employees to be free of race based decision-making could be compromised should circumstances justify race conscious remedies under current doctrine? One argument might be that, if we recognize a ministerial exception, religious organizations are being granted some unique exemption from generally applicable laws. Putting apart whether that could ever be an accurate description of the current constitutional landscape, it is not clearly so. Associational rights, such as those of the Boy Scouts, might also warrant an exemption from otherwise applicable discrimination laws. Going beyond that, why does the potential frustration of the expectations of employees stemming from a failure to appreciate the law of free exercise or of legislative solicitude for religious organizations deserve special attention? Most of us who don't hail from social circles riddled with lawyers know, for example, that the concept of at-will employment comes as a shock to the average man or woman on the street. Most have no idea that the right of free speech that they understand to exist does not protect them from private employers. In fact, it is not at all clear that persons who accept positions that might qualify as ministerial are likely to be ignorant of the ways in which free exercise might be thought to justify exemption from certain legal requirements in some unique way that justifies qualifying statutory or constitutional rights on disclosure. They may very well be more, rather than less, likely to know the legal landscape. To place a unique burden on religious organizations raises questions of government neutrality as a matter of policy, free exercise and establishment in the sense of avoiding both endorsement and disapproval of religion. Rick Esenberg Marquette University Law School Eckstein Hall 253B 1215 W. Michigan Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905userID=3715 Blogs: www.sharkandshepherd.blogspot.com http://law.marquette.edu/facultyblog/ You can access my papers at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Monday, July 19, 2010 8:49 AM To: Law Religion issues for Law Academics Subject: RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Friends -- with respect to Marci's suggestion that religious entities be required to inform people in ministerial positions about the fact that such entities have a constitutional right to hire-and-fire that is not subject to many employment-law constraints . . . it seems to me that people often suffer what I think Marci and I would agree are harms as a result of others' exercise of constitutional rights (in particular, the freedom of speech). That is, the Constitution does have the effect (and, it seems to me, *was* intended to have the effect) of insulating *some* harms (e.g., the pain caused by offensive speech) caused from correction or prevention by the government. Do we think, though, that, as a general matter, rights holders should have to inform those with whom they are in relationships and who might be harmed by the exercise of the rights holders' rights that the rights might, in fact, be exercised? Should a reporter, for example, have to warn anyone whom she interviews about the harm-causing-potential of the rule in New York Times v. Sullivan? I agree, for what it's worth, that it makes good sense for attorneys representing churches and religious institutions to advise their clients to inform those in ministerial positions (that is, in any position that the church regards as ministerial) about their (the institutions') religious liberty. But I'm wondering if Marci's proposed warning requirement applies only to religious employers (and if so, why? Because they are employers? Because they are religious?) or to all whose rights-exercise might cause harm? 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
Re: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit
Actually the Children of God did but that does not make Elvig wrongly decided. Serious enough social harms can and should limit protection under the First Amendment. Licentiousness was never intended to be protected under the First Amendment. Why craft a doctrine to do so today? Women are no longer property... Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: masin...@nova.edu masin...@nova.edu Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 19 Jul 2010 13:41:55 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu; Robert Tuttlertut...@law.gwu.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Professor Tuttle's explanation for why the ministerial exception is treated as jurisdictional also suggests why it should be limited to claims that implicate questions of qualifications to perform a ministerial job. Given that hostile work sexual harassment claims arise from the failure of an employer to remedy tortious sexual conduct by coworkers or supervisors directed at a particular employee, why isn't Elvig, permitting such claims to proceed, a better decision than Skrzypczak? Sexual harassment almost always takes one of two forms -- unwelcome physical conduct of a sexual nature or repeated targeted demands for sexual favors; the courts of appeals have largely eliminated sexual harassment claims based on crude language unaccompanied by unwelcome sexual touching. See, e.g., Mendoza v. Borden, Inc. 195 F.3d 1238 (11th Cir. 1999) (en banc); Gupta v. Florida Board of Regents, 212 F.3d 571 (11th Cir. 2000). Recall that Meritor arose from a claim of sexual harassment that involved allegations of sexual battery. What about the ministerial exemption should insulate a ministerial employer from tort liability for sexual torts simply because the victim was an employee? The principal post 1991 Civil Rights Act remedies for hostile work sexual environment claims are compensatory damages and attorney's fees. Though injunctive relief may accompany successful claims, its scope is always discretionary, and could be adjusted or even eliminated to ensure the absence of disruption to the spiritual relationship between the church and the injured employee. But how does a claim for damages for what are in essence sexual torts implicate the rationale for the ministerial exemption? Courts do not lack subject matter jurisdiction to hear common law tort claims against religious institutions for sexual torts generally, so why isn't Elvig the proper rule? How will adjudicating the factual question of whether those torts took place within the workplace against an employee rather than within the church against a congregant enmesh the court in endless inquiries as to whether each discriminatory act was based in Church doctrine or simply secular animus as the Seventh Circuit held in Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 2003). Bluntly stated, what church makes submission to or tolerance of repeated unwelcome physical sexual advances part of church doctrine? 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 Robert Tuttle rtut...@law.gwu.edu: By way of reply to both Marci and Chris - I think (and Chip Lupu and I have written at some length) that the ministerial exception is jurisdictional because, at least at some level, it's not subject to waiver by the parties, any more than (post Blue Hull Memorial) a congregation/denomination could ask a court to decide which of the disputing factions was more faithful to the tradition. Most, not all but most, cases covered by the ministerial exception involve the possibility of dispute over the qualification for or performance of a ministerial role, and judgment about whether one is qualified to be a minister or has performed well in that role can't be decided by civil courts without adopting some normative -- i.e., religiously thick -- understanding of ministry. Bob On Mon, Jul 19, 2010 at 11:06 AM, Christopher Lund ed9...@wayne.edu wrote: One point of clarification, which goes to Bob Tuttle?s point more than Marci?s: Are we sure that the ministerial exception is jurisdictional? I would have thought it wasn?t. I agree it?s constitutional. So like Bob, I would think that Congress can?t diminish its scope?Congress can?t say to a religious organization, ?You?ll lose this constitutional right [ministerial exception] unless you do this [inform an employee prospectively about the ministerial exception].? But why should we consider this constitutional limitation
RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit
The jurisdictional point has always puzzled me as well. A large number of the court decisions, roughly half I would say, call the ministerial exception jurisdictional. But can that be right? It is jurisdictional in a conceptual sense-there are things that properly belong to the authority of the state and things that belong to religious bodies. But the same could be said of any entanglement under the Establishment Clause. When we say that a court does not have the competency to decide matters of religious doctrine in property disputes, we aren't saying that it isn't a court of competent jurisdiction, are we? Has anyone ever seen this jurisdictional argument applied to entanglement notions outside of the ministerial exception? It would seem that to say that there is no jurisdiction in a legal sense is to say that the court does not have subject matter jurisdiction to hear the cause of action. But a federal court, for example, has jurisdiction to hear federal causes of action, and would have subject matter jurisdiction over an ADA claim or a Title VII claim. There may be a constitutional, or statutory interpretation, defense based on entanglement principles, but there is still a federal cause of action stated on the face of a well-pleaded complaint, right? Eric Treene _ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Monday, July 19, 2010 11:06 AM To: 'Law Religion issues for Law Academics' Subject: RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit One point of clarification, which goes to Bob Tuttle's point more than Marci's: Are we sure that the ministerial exception is jurisdictional? I would have thought it wasn't. I agree it's constitutional. So like Bob, I would think that Congress can't diminish its scope-Congress can't say to a religious organization, You'll lose this constitutional right [ministerial exception] unless you do this [inform an employee prospectively about the ministerial exception]. But why should we consider this constitutional limitation jurisdictional? Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (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 hamilto...@aol.com Sent: Monday, July 19, 2010 10:45 AM To: religionlaw@lists.ucla.edu Subject: Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Rick is casting a larger net than my post suggested. The relevant universe here is the universe of employees. As in the speech cases (and in particular the defamation cases since we're dealing with employment), there should be some weighing of interests here. Right now, in my view, the balance is out of whack in this universe. (If there are other harms arising from other First Amendment rights that require redressing, I'm all in favor of exploring those as well.) Employees assume that they cannot be discriminated against on the basis of gender (including a right not to be a victim of sexual harassment). It turns out in most states that they are UNLESS the employer is religious. (Don't forget the Supreme Court has not yet ruled on the ministerial exception so whether it is a robust or less robust or not a constitutional right still remains in limbo.) So a bishop who creates a hostile working environment or who persistently engages in sexual innuendo typically is immune or who arbitrarily decides a man is a better choice than a better qualified woman is immune. Employees are doubly disabled in these scenarios. First, as Americans the culture encourages them to trust religious leaders (though surely that is declining in light of the steady investigative reporting suggesting folks do that at their peril). More importantly, because of the ministerial exception, few cases are ever filed, let alone litigated, and, therefore, the incidence of gender discrimination is not publicized. So women are going into these jobs with expectations of fairness that are not borne out, because of a First Amendment doctrine. One option is to carve back on the right so that no employer who fails to advise an employee of this issue can claim it. Bob objected to that, because the ministerial exception is jurisdictional. But if this is the result, why should it be? Why isn't it a right, like the freedom of speech in defamation cases, which carries with it some obligations and weighing, depending on the scenario? One option is to have the government inform applicants through public education, as in add language to the tax forms. Another is to have anyone who is taking government funds for mission have to agree as a condition
Re: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit
In reply to Eric, I don't mean jurisdictional in the sense of subject matter jurisdiction - and I think courts are usually wrong to dispose of ministerial employment cases on a motion to dismiss -- facts are always needed, if nothing other than to determine whether the position is ministerial. By jurisdictional, I mean only that the exception isn't subject to waiver or interest balancing, but that only suggests that its source is in the Establishment Clause rather than Free Exercise/RFRA, etc. Michael Masinter's point about the sexual harassment cases is well-taken, and as you all know the courts have not applied the ministerial exception in that context, because the claims do look more like assault than disputes over qualifications/performance. But I don't think it matters whether or not the congregation claims that race/gender/age discrimination are matters of doctrine - the point is that the state can't set qualifications for ministry, or step into determine whether the minister has performed acceptably (as in a claim of pretext). Bob On Mon, Jul 19, 2010 at 8:33 PM, eric treene etre...@comcast.net wrote: The jurisdictional point has always puzzled me as well. A large number of the court decisions, roughly half I would say, call the ministerial exception jurisdictional. But can that be right? It is “jurisdictional” in a conceptual sense—there are things that properly belong to the authority of the state and things that belong to religious bodies. But the same could be said of any entanglement under the Establishment Clause. When we say that a court does not have the competency to decide matters of religious doctrine in property disputes, we aren’t saying that it isn’t a court of competent jurisdiction, are we? Has anyone ever seen this jurisdictional argument applied to entanglement notions outside of the ministerial exception? It would seem that to say that there is no jurisdiction in a legal sense is to say that the court does not have subject matter jurisdiction to hear the cause of action. But a federal court, for example, has jurisdiction to hear federal causes of action, and would have subject matter jurisdiction over an ADA claim or a Title VII claim. There may be a constitutional, or statutory interpretation, defense based on entanglement principles, but there is still a federal cause of action stated on the face of a well-pleaded complaint, right? Eric Treene -- *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Christopher Lund *Sent:* Monday, July 19, 2010 11:06 AM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit One point of clarification, which goes to Bob Tuttle’s point more than Marci’s: Are we sure that the ministerial exception is jurisdictional? I would have thought it wasn’t. I agree it’s constitutional. So like Bob, I would think that Congress can’t diminish its scope—Congress can’t say to a religious organization, “You’ll lose this constitutional right [ministerial exception] unless you do this [inform an employee prospectively about the ministerial exception].” But why should we consider this constitutional limitation *jurisdictional*? Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (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 *hamilto...@aol.com *Sent:* Monday, July 19, 2010 10:45 AM *To:* religionlaw@lists.ucla.edu *Subject:* Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Rick is casting a larger net than my post suggested. The relevant universe here is the universe of employees. As in the speech cases (and in particular the defamation cases since we're dealing with employment), there should be some weighing of interests here. Right now, in my view, the balance is out of whack in this universe. (If there are other harms arising from other First Amendment rights that require redressing, I'm all in favor of exploring those as well.) Employees assume that they cannot be discriminated against on the basis of gender (including a right not to be a victim of sexual harassment). It turns out in most states that they are UNLESS the employer is religious. (Don't forget the Supreme Court has not yet ruled on the ministerial exception so whether it is a robust or less robust or not a constitutional right still remains in limbo.) So a bishop who creates a hostile working environment or who persistently engages in sexual innuendo typically is immune or who arbitrarily decides a man is a
RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
I admit that I don't see why the desire to reduce, mitigate, or spread the costs of religious accommodation must be grounded on some judgment about the impropriety of the accommodation. If the justification and scope of the ministerial exemption (as mandated by the constitution) is determined in part by the burdens imposed by the exemption on third parties as well as the religious liberty interests at stake for the religious institution, mechanisms that reduce the burden on third parties might be considered part of the constitutional analysis. That kind of interest balancing approach doesn't seem to me to be to be one that is intrinsically inappropriate for religious liberty cases. If we are talking about discretionary accommodations for religious institutions, there is even more of a justification for mitigating the costs of the accommodation to third parties. Why shouldn't the legislature care about reducing or spreading the costs of the decisions that it makes to protect religious liberty? If we created a constitutional or legislative exemption that permitted newspaper editors to sexually harass their staff (although I can't imagine why we would want to do so), I think it would be desirable to require some notice to individuals accepting such employment of this reality. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Esenberg, Richard Sent: Monday, July 19, 2010 4:44 PM To: Law Religion issues for Law Academics Subject: RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit I'm not sure why, absent some judgment about the impropriety of the ministerial exemption, one would think that employees and potential employees are somehow entitled to disclosure about the way in which constitutional doctrine might frustrate what they (perhaps erroneously) to be their statutory rights. Why, indeed, not require reporters to tell persons who may qualify as public officials or figures about the way in which constitutional doctrine may impair what they might otherwise regard to be their legal protection from defamation? Even if we are especially concerned about employees, why not require that they be told, for example, that the presumed right of white employees to be free of race based decision-making could be compromised should circumstances justify race conscious remedies under current doctrine? One argument might be that, if we recognize a ministerial exception, religious organizations are being granted some unique exemption from generally applicable laws. Putting apart whether that could ever be an accurate description of the current constitutional landscape, it is not clearly so. Associational rights, such as those of the Boy Scouts, might also warrant an exemption from otherwise applicable discrimination laws. Going beyond that, why does the potential frustration of the expectations of employees stemming from a failure to appreciate the law of free exercise or of legislative solicitude for religious organizations deserve special attention? Most of us who don't hail from social circles riddled with lawyers know, for example, that the concept of at-will employment comes as a shock to the average man or woman on the street. Most have no idea that the right of free speech that they understand to exist does not protect them from private employers. In fact, it is not at all clear that persons who accept positions that might qualify as ministerial are likely to be ignorant of the ways in which free exercise might be thought to justify exemption from certain legal requirements in some unique way that justifies qualifying statutory or constitutional rights on disclosure. They may very well be more, rather than less, likely to know the legal landscape. To place a unique burden on religious organizations raises questions of government neutrality as a matter of policy, free exercise and establishment in the sense of avoiding both endorsement and disapproval of religion. Rick Esenberg Marquette University Law School Eckstein Hall 253B 1215 W. Michigan Avenue Milwaukee, WI 53201 (o) 414-288-6908 (m)414-213-3957 (f) 414-288-6975 Homepage: http://law.marquette.edu/cgi-bin/site.pl?10905userID=3715 Blogs: www.sharkandshepherd.blogspot.comhttp://www.sharkandshepherd.blogspot.com http://law.marquette.edu/facultyblog/ You can access my papers at: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1171612 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Monday, July 19, 2010 8:49 AM To: Law Religion issues for Law Academics Subject: RE: 10th Circuit Finds Church Immune From Workplace Discrimination Suit Friends -- with respect to Marci's suggestion that religious entities be required to inform people in ministerial positions about the fact that such entities have a constitutional right to
