Re: Judge Becker Posthumously Creates Circuit Split on MinisterialException

[Marty Lederman]

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 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. For example, Gannon might assert that Petruska was demoted for failing to attend mass, in contravention of Catholic doctrine.  In th[at] case, the task of the District Court or the jury would be to determine whether the challenged employment action was motivated by the proffered religious doctrine or by sex discrimination. As in Geary, the employee could not “challenge the validity, existence or ‘plausibility’” of the religious doctrine itself. See Geary, 7 F.3d at 330.  However, the employee could contend that the asserted religious rationale “did not in fact motivate” the adverse employment action. Id.  For example, if Gannon contended that Petruska did not attend mass, she would be precluded from asserting that Catholic doctrine did not require her to do so. She could, however, argue that she was not actually demoted for failing to attend mass. By way of illustration, she could substantiate her allegations that Ostrowski told her that she was being demoted solely on the basis of her gender and that Trautman sought to “clean house” by removing women from leadership positions.  Petruska might also cite evidence that in the past male chaplains who refused to attend mass did not suffer adverse employment action. To determine whether this evidence demonstrated gender discrimination, a factfinder would not have to delve into religious questions. As we stated in Geary, “[a] conclusion that the religious reason did not in fact motivate dismissal would not implicate entanglement since that conclusion implies nothing about the validity of the religious doctrine or practice.” Id. I think this analysis is correct as far as it goes -- but I also think that despite the comprehensiveness of the opinion, and Becker's care to deal with the opposing arguments, he fails to address a much more likely scenario as the case goes forward.   To be sure, if the case turns on an assertion that Petruska did not abide by a religious tenet (e.g., did not attend mass), the court could probably adjudicate it, because the primary questions would be whether she did, in fact, attend mass, and, if not, whether there is evidence that such a reason for her discharge is pretextual (e.g., because the college did not penalize men who did not attend mass).    But a much more likely scenario is that the college will defend the suit simply by argung that Petruska's performance of her duties -- e.g., her prayer services and liturgies -- left a lot to be desired, or that the school concluded that her replacement would be better at performing such duties.  Obviously, it would be exceedingly difficult for a trier of fact to adjudicate whether such subjective, discretionary judgments about the quality of her work were a "but for" cause of the school's decisionmaking without inquiring into matters that are invariably religious in nature and thus beyond the ken of civil authorities to evaluate.   My sense is that it is the prospect of these latter sorts of factual disputes -- E.g., Was she a good chaplain? -- that have led most courts to dismiss such claims at the outset.  The principal failing of the Becker opinion, I think, is that it does not address this problem.   4.  Judge Smith, in dissent, argues that a choice of who will perform a religious organization's spiritual functions is an "inherently" religious decision.  This is wrong, I think.  Such a decision will invariably have an impact on the organization's spiritual functions.  And (as discussed above) such decisions might often be based, at least in part, on the manner in which the individual performs those spiritual functions.  But not invariably.  The decision could instead be simply a matter of (non-religiously-motivated) sex discrimination.  This doesn't mean that Judge Smith's conclusion was wrong; but his rationale also leaves something to be desired.    5.  As you all know, Judge's Becker's death is the loss of a great jurist and, by all accounts, an extraordinary and wonderful man.  Not surprisingly, he had a reputation as a great judge for whom to clerk.  In footnote 28 of the opinion, Judge Becker graciously nods to one of those former clerks, our ReligionLaw colleague Marci Hamilton: According to a leading scholar of the religion clauses, “[t]o grant First Amendment immunity to . . . religious organizations in circumstances where its actions were not dictated by religious belief . . . is to invite misbehavior. Moreover, it seems unfair to deprive the poorly treated and now-estranged employee of any opportunity to bring the religious entity to account. . . .”  Marci A. Hamilton, God vs. the Gavel: Religion and the Rule of Law 196 (2005). Congrats to Marci, even though this tribute, coming as it does two days after Judge Becker's funeral, must surely be bittersweet. 6.  If the court of appeals does not reverse the decision en banc, would the college be advised to petition for cert.?  A very interesting question.  There's a clear circuit-split, acknowledged by the court of appeals.  And the votes might be there -- surely Roberts, Thomas and Alito (a friend and former colleague of Judge Becker) will be inclined to reverse.  But it is something of a risk on the merits.  And the Supreme Court may well be inclined to wait until the case is resolved rather than to accept an interlocutory appeal -- after all, the defendants might still prevail on "religious question" grounds as the case proceeds. _______________________________________________ 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.

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