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 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 Marty Lederman Sent: Wednesday, August 17, 2011 8:54 AM To: Law Religion issues for Law Academics Subject: The Two Forms of Ministerial Exception Cases -- a Query Hosanna-Tabor is not a run-of-the-mill ministerial exception case; and because of that, it raises a question that I was hoping others on the list could address. The much more common type of ME case, with which we're all familiar, involves a dispute about whether the church or organization in question violated a statutory antidiscrimination norm. For example, (i) the church purports to comply with the prohibition against discrimination on the basis of sex or disability; (ii) the church claims that its employment decision was not based on the proscribed consideration but was instead based on permissible, often religiously-evaluated, considerations; and (iii) the plaintiff asserts that no, in fact the asserted neutral reasons are pretextual, and that the church actually acted on the basis of the prohibited consideration, such as sex or disability. In such cases, the court's basic function is to determine whether the prohibited consideration motivated the action -- a question that might (or might not) entangle the court in evaluations of religious doctrine or assessment of religious cosniderations. Such cases can raise difficult questions: Perhaps they call for some form of ministerial exception; perhaps not. At the very least, some
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 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) 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:*
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 scope is uncertain. And so is RFRA's. (Not to mention that whether RFRA even applies to suits between private parties is not fully resolved.) Best, Chris ___ Christopher C.
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 to enact the ministerial exception. Others may feel only that it is not constitutionally
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 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) 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
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 rgarn...@nd.edumailto: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) conservative Protestant congregation that refuses to hire a woman,
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 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 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 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
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 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 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
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 aebrownst...@ucdavis.edumailto: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.
