RE: Hosanna-Tabor and the Ministerial Exception
Marty asked for opinions on the briefs. Here is what I've been thinking, for whatever it's worth (probably very little). At the outset, I should say that my own views may be atypical, so I'm particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope-does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don't believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable-so there's no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant constitutional concerns should instead be handled by a bunch of discrete, narrower rules: (1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and (3) a ban on cases where (a) the church claims it fired the plaintiff for failing to adequately perform his or her religious duties and (b) the plaintiff has no separate evidence that this is pretext. Maybe it's just me, but I thought this a surprising position for the SG. This is, to my knowledge, a narrower view of the ministerial exception than any federal court has adopted. Courts have divided on what jobs and persons fall within the ministerial exception. But they have agreed that, for those jobs and persons, the ministerial exception is a categorical bar. The SG doesn't believe in a categorical bar. If I understand the SG's position right, a dismissed Catholic bishop could bring suit against the church under any of the discrimination laws, provided he only seeks damages and has evidence of pretext. In particular, there's a huge fight about the scope of the church autonomy precedents. Hosanna-Tabor relies heavily on them to establish a broad principle. The Solicitor General treats them just as older cases concerning church-property disputes (p. 11). All that dicta in Kedroff and other cases about church autonomy is now overruled by Smith; neutral and generally applicable laws control. Of course, the NLRA in Catholic Bishop was neutral and generally applicable. The principles of property, trust, and agency in Milivojevich were neutral and generally applicable (as then-Justice Rehnquist made clear in his dissent). But the SG's brief deals with these cases quickly, as if they were self-evidently irrelevant. Milivojevich gets just a few lines in the middle of p. 25. The SG quotes an in-chambers solo opinion by Justice Rehnquist, adopting his view of Milivojevich's holding-which, I note parenthetically, is weird because (1) it's just Justice Rehnquist speaking, (2) he wrote the dissent in Milivojevich, and (3) he was the one in Milivojevich who clearly said that the law was neutral and generally applicable. Catholic Bishop is dismissed in a footnote on p. 40. The whole tone of the SG's brief is that these cases are just relics, holdover cases from a bygone era, to be dealt with like mosquitoes that are annoying but pose no real threat. Anyway, there seems to be a big gap between the parties here, both in terms of precedents and in terms of theory. There's this tension as to whether religion really is special that runs through the briefs on the plaintiffs' side. On one hand, it's not. The ADA is neutral and generally applicable; it therefore should apply fully to religious groups. But on the other hand, it still is, kind of. To give one example, the law on reinstatement-plaintiffs should usually be reinstated except when it would be impractical-is neutral and generally applicable too. So where does the constitutional concern with reinstatement come from? Just some thoughts. Hope all is well as the school year begins.. Best, Chris ___ Christopher C. Lund Assistant Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, August 15, 2011 9:53 AM To: Law Religion issues for Law Academics Subject: Hosanna-Tabor and the Ministerial Exception Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
Re: Hosanna-Tabor and the Ministerial Exception
Nelson-- Just a historical note-- there really is no church autonomy doctrine at the Supreme Court. It's not a phrase or doctrine the Court has adopted, particularly after the long line of free exercise cases that culminate in Smith, and Jones v. Wolf. From my research, the phrase was coined during litigation primarily by the bishops of the Roman Catholic and LDS Churches, perhaps drawing on an article using the term by Doug. Of course, there are other theorists who have argued for autonomy under free speech, but the Religion Clause issues here extend beyond speech. In contrast, the Court has repeatedly followed the principle of ordered liberty as opposed to autonomy. The SG is actually arguing out of the ordered liberty tradition, while the Petr and some of the amici in support are taking the more extreme position. To see an excellent point-counterpoint of the 2 approaches, see the 2 decisions in Petruska in the 3d Cir. Marci FWIW--I wrote a brief in HT for a number of child protection groups, because church autonomy has been invoked in this case and is routinely invoked in the clergy sex abuse cases to avoid discovery and liability for culpability for child sex abuse. A holding in HT could affect positively or negatively the child sex abuse cases. In a message dated 8/16/2011 10:10:20 A.M. Eastern Daylight Time, l...@wayne.edu writes: Marty asked for opinions on the briefs. Here is what I’ve been thinking, for whatever it’s worth (probably very little). At the outset, I should say that my own views may be atypical, so I’m particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope—does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don’t believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable—so there’s no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant constitutional concerns should instead be handled by a bunch of discrete, narrower rules: (1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and (3) a ban on cases where (a) the church claims it fired the plaintiff for failing to adequately perform his or her religious duties and (b) the plaintiff has no separate evidence that this is pretext. Maybe it’s just me, but I thought this a surprising position for the SG. This is, to my knowledge, a narrower view of the ministerial exception than any federal court has adopted. Courts have divided on what jobs and persons fall within the ministerial exception. But they have agreed that, for those jobs and persons, the ministerial exception is a categorical bar. The SG doesn’t believe in a categorical bar. If I understand the SG’s position right, a dismissed Catholic bishop could bring suit against the church under any of the discrimination laws, provided he only seeks damages and has evidence of pretext. In particular, there’s a huge fight about the scope of the church autonomy precedents. Hosanna-Tabor relies heavily on them to establish a broad principle. The Solicitor General treats them just as “older cases concerning church-property disputes” (p. 11). All that dicta in Kedroff and other cases about church autonomy is now overruled by Smith; neutral and generally applicable laws control. Of course, the NLRA in Catholic Bishop was neutral and generally applicable. The principles of property, trust, and agency in Milivojevich were neutral and generally applicable (as then-Justice Rehnquist made clear in his dissent). But the SG’s brief deals with these cases quickly, as if they were self-evidently irrelevant. Milivojevich gets just a few lines in the middle of p. 25. The SG quotes an in-chambers solo opinion by Justice Rehnquist, adopting his view of Milivojevich’s holding— which, I note parenthetically, is weird because (1) it’s just Justice Rehnquist speaking, (2) he wrote the dissent in Milivojevich, and (3) he was the one in Milivojevich who clearly said that the law was neutral and generally applicable. Catholic Bishop is dismissed in a footnote on p. 40. The whole tone of the SG’s brief is that these cases are just relics, holdover cases from a bygone era, to be dealt with like mosquitoes that are annoying but pose no real threat. Anyway, there seems to be a big gap between the parties here, both in terms of precedents and in terms of theory. There’s this tension as to whether religion really is special that runs through the briefs on the plaintiffs’ side. On
RE: Hosanna-Tabor and the Ministerial Exception
I think Marci has raised many valuable practical and theoretical questions about church autonomy, both at the level of doctrine and at the level of theory. I'm not trying to address all that here. Nonetheless, I think the argument that the Court has repeatedly followed the principle of 'ordered liberty' as opposed to 'autonomy' tends to state the question more than to answer it. To analogize roughly to the abortion cases (and it's just an analogy, nothing more), the courts have said that women have a right to obtain abortions, and one somewhat undertheorized piece of that conclusion is that women are entitled to some autonomy in making important decisions. But it has also said that this right must necessarily be subject to limits. One could argue on this basis that because women's right to an abortion can be limited by the state, a limit that is subject to weighing by the courts, any talk of women's autonomy must be illusory -- doesn't autonomy mean we don't get to ask any such questions at all? -- and these cases must be all about ordered liberty. But that would seem to me to be the wrong way of thinking about it. It would be better to say that the argument then concerns the degree to which women are entitled to decision-making autonomy within a system of law that imposes some outside limits. Really, this is the question we ask every time we balance individual rights against state needs -- and, either at a categorical level or on a case-by-case basis, we *always* do just that. Claims of individual or institutional autonomy are always balanced against other claims -- including, to give one relevant example here, claims that the state has a legitimate interest in addressing child sexual abuse and other serious wrongs. That doesn't mean there's no such thing as autonomy; it just means that autonomy is not an unlimited concept. To say some claim is subject to the principle of ordered liberty doesn't end the conversation, because what constitutes ordered liberty is the very point in contention. Similarly, in the ministerial exception cases, unless one is arguing either that the ministerial exception can't exist at all or that it is absolute, the question is the extent to which some degree of autonomy for religious institutions is consistent with some degree of acceptable state regulation for permissible ends. It is consistent with this view to believe that churches must be allowed some degree of control over employment decisions in core cases but that Perich's case falls within the scope of state regulation; it's also consistent with this view to believe that churches may be subject to some degree of regulation of their employment decisions but that Hosanna-Tabor's decision to dismiss Perich falls within the scope of religious freedom. We may certainly invoke concepts like autonomy and ordered liberty in trying to resolve these issues, but virtually everyone is already going to be engaged in balancing the two, however clumsily, and the invocation of these concepts certainly won't answer any difficult questions. From: hamilto...@aol.com Date: Tue, 16 Aug 2011 10:22:42 -0400 Subject: Re: Hosanna-Tabor and the Ministerial Exception To: religionlaw@lists.ucla.edu Nelson-- Just a historical note-- there really is no church autonomy doctrine at the Supreme Court. It's not a phrase or doctrine the Court has adopted, particularly after the long line of free exercise cases that culminate in Smith, and Jones v. Wolf. From my research, the phrase was coined during litigation primarily by the bishops of the Roman Catholic and LDS Churches, perhaps drawing on an article using the term by Doug. Of course, there are other theorists who have argued for autonomy under free speech, but the Religion Clause issues here extend beyond speech. In contrast, the Court has repeatedly followed the principle of ordered liberty as opposed to autonomy. The SG is actually arguing out of the ordered liberty tradition, while the Petr and some of the amici in support are taking the more extreme position. To see an excellent point-counterpoint of the 2 approaches, see the 2 decisions in Petruska in the 3d Cir. Marci FWIW--I wrote a brief in HT for a number of child protection groups, because church autonomy has been invoked in this case and is routinely invoked in the clergy sex abuse cases to avoid discovery and liability for culpability for child sex abuse. A holding in HT could affect positively or negatively the child sex abuse cases. In a message dated 8/16/2011 10:10:20 A.M. Eastern Daylight Time, l...@wayne.edu writes: Marty asked for opinions on the briefs. Here is what I’ve been thinking, for whatever it’s worth (probably very little). At the outset, I should say that my own views may be atypical, so I’m particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The
Re: Hosanna-Tabor and the Ministerial Exception
Paul-- I don't disagree with the substance of what you say. Absolute liberty, or autonomy, is not the US Constitution's role (except when we are talking about the right to believe). There is always the possibility that the government can justify burdens on liberty. What church autonomy means for those who advocate for it, as indicated in the LDS/RCC bishops's HT brief, is immunity from the law, because they are religious. Their interpretation is much closer to the licentiousness interpretation of liberty firmly rejected by the framing and founding generations. The fact they are using it in sexual misconduct cases itself should be revealing. (Look at the amicus brief filed by the LDS in a footnote in my amicus brief (there is a web address). That case involved a woman alleging she was sexually assaulted by a cantor. She went to her rabbi, who she says then sexually propositioned her. The LDS filed an amicus brief, joined by RCC Bishops, arguing for autonomy from the law in that case.) If they were arguing for a measure of autonomy in the courts, I would not feel so compelled to focus a light on its usage. Ordered liberty captures the notion of measured liberty or freedom far better than autonomy. Just a footnote on abortion. Women have not had autonomy from the medical establishment in the abortion context -- the right has always been mediated somewhat and never involved solely the question of a woman's power over her body. But that is for a different thread. Marci In a message dated 8/16/2011 10:58:45 A.M. Eastern Daylight Time, phorw...@hotmail.com writes: To analogize roughly to the abortion cases (and it's just an analogy, nothing more), the courts have said that women have a right to obtain abortions, and one somewhat undertheorized piece of that conclusion is that women are entitled to some autonomy in making important decisions. But it has also said that this right must necessarily be subject to limits. One could argue on this basis that because women's right to an abortion can be limited by the state, a limit that is subject to weighing by the courts, any talk of women's autonomy must be illusory -- doesn't autonomy mean we don't get to ask any such questions at all? -- and these cases must be all about ordered liberty. But that would seem to me to be the wrong way of thinking about it. It would be better to say that the argument then concerns the degree to which women are entitled to decision-making autonomy within a system of law that imposes some outside limits. Really, this is the question we ask every time we balance individual rights against state needs -- and, either at a categorical level or on a case-by-case basis, we *always* do just that. Claims of individual or institutional autonomy are always balanced against other claims -- including, to give one relevant example here, claims that the state has a legitimate interest in addressing child sexual abuse and other serious wrongs. That doesn't mean there's no such thing as autonomy; it just means that autonomy is not an unlimited concept. To say some claim is subject to the principle of ordered liberty doesn't end the conversation, because what constitutes ordered liberty is the very point in contention. Similarly, in the ministerial exception cases, unless one is arguing either that the ministerial exception can't exist at all or that it is absolute, the question is the extent to which some degree of autonomy for religious institutions is consistent with some degree of acceptable state regulation for permissible ends. It is consistent with this view to believe that churches must be allowed some degree of control over employment decisions in core cases but that Perich's case falls within the scope of state regulation; it's also consistent with this view to believe that churches may be subject to some degree of regulation of their employment decisions but that Hosanna-Tabor's decision to dismiss Perich falls within the scope of religious freedom. We may certainly invoke concepts like autonomy and ordered liberty in trying to resolve these issues, but virtually everyone is already going to be engaged in balancing the two, however clumsily, and the invocation of these concepts certainly won't answer any difficult questions. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Hosanna-Tabor and the Ministerial Exception
It seems to me the SG is arguing that there is no ministerial exception from the anti-retaliation provisions of the ADA, but is not necessarily arguing the same as to the anti-discrimination provisions. This makes some sense, since-- to the extent that the ministerial exception doctrine is broader than the related ecclesiastical abstention doctrine-- it is designed to protect against imposing a burden on a religious organization to prove the reason for its employment action. I.e. we should not require a church to show that it dismissed an employee, who had a disability, for doctrinal reasons rather than because of the disability. There is likely less risk of erroneous determination of motive in retaliation cases. Beyond this, it seems to me that a missing piece in all of this is the employee's perspective. The cases and briefs posit the church's interest vs. the state's interest. However, from the perspective of the employee, the issue is protection against arbitrary employment action based on factors such as race, national origin or disability, where admittedly those have no relation to doctrinal concerns of the religious organization. Employees of religious organizations often tend to be underpaid as it is. Anyone who has worked with boards of non-profits knows that the possibility of petty motivations for employment actions are not eliminated just because of the religious overlay. Do we really want to make it riskier for individuals to pursue challenging positions with non-profits because they lack protection that every other employee in our society has? Is the risk or erroneous determination of motive strong enough to justify this? Particularly if we add the rule, as the SG's brief suggests, that reinstatement would not be a remedy? Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Tue 8/16/2011 10:08 AM To: 'Law Religion issues for Law Academics' Subject: RE: Hosanna-Tabor and the Ministerial Exception Marty asked for opinions on the briefs. Here is what I've been thinking, for whatever it's worth (probably very little). At the outset, I should say that my own views may be atypical, so I'm particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope-does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don't believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable-so there's no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant constitutional concerns should instead be handled by a bunch of discrete, narrower rules: (1) Dale, (2) a ban on forced reinstatement to ecclesiastical office, and (3) a ban on cases where (a) the church claims it fired the plaintiff for failing to adequately perform his or her religious duties and (b) the plaintiff has no separate evidence that this is pretext. Maybe it's just me, but I thought this a surprising position for the SG. This is, to my knowledge, a narrower view of the ministerial exception than any federal court has adopted. Courts have divided on what jobs and persons fall within the ministerial exception. But they have agreed that, for those jobs and persons, the ministerial exception is a categorical bar. The SG doesn't believe in a categorical bar. If I understand the SG's position right, a dismissed Catholic bishop could bring suit against the church under any of the discrimination laws, provided he only seeks damages and has evidence of pretext. In particular, there's a huge fight about the scope of the church autonomy precedents. Hosanna-Tabor relies heavily on them to establish a broad principle. The Solicitor General treats them just as older cases concerning church-property disputes (p. 11). All that dicta in Kedroff and other cases about church autonomy is now overruled by Smith; neutral and generally applicable laws control. Of course, the NLRA in Catholic Bishop was neutral and generally applicable. The principles of property, trust, and agency in Milivojevich were neutral and generally applicable (as then-Justice Rehnquist made clear in his dissent). But the SG's brief deals with these cases quickly, as if they were self-evidently irrelevant. Milivojevich gets just a few lines in the middle of p. 25. The SG quotes an in-chambers solo opinion by Justice Rehnquist, adopting his view of Milivojevich's holding-which, I note parenthetically, is weird because (1) it's just Justice Rehnquist speaking, (2) he wrote the dissent in Milivojevich, and (3) he was the one in Milivojevich who
RE: Hosanna-Tabor and the Ministerial Exception
Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that church autonomy is a crucial dimension of religious freedom through law are claiming immunity from the law [for religious communities] because they are religious. As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I hear the debate, it seems to me that those of us who think church autonomy is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between ministers and religious communities (acting as employers). Who counts as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the good reasons mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about immunity, or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow outweigh the interests of the person demanding the sacrament and / or the interests of the state in vindicating either that person's interests or its own (whatever they might be), thereby warranting, all things considered, an exemption. It is, instead, that a government constitutionally committed to religious freedom is / should be one that lacks, and does not claim, the authority to supervise the Bishop's decision in this matter. Again, I am inclined to think that most of the time, when we talk about religious freedom, we are talking about, and it makes sense to talk about, the costs and benefits of exemptions from otherwise justifiable police-power regulations. But I also think it makes sense - even if we rarely want or need to invoke - the limits-of-secular-power dimension of the religious-freedom conversation. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN 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: Tuesday, August 16, 2011 11:47 AM To: religionlaw@lists.ucla.edu Subject: Re: Hosanna-Tabor and the Ministerial Exception Paul-- I don't disagree with the substance of what you say. Absolute liberty, or autonomy, is not the US Constitution's role (except when we are talking about the right to believe). There is always the possibility that the government can justify burdens on liberty. What church autonomy means for those who advocate for it, as indicated in the LDS/RCC bishops's HT brief, is immunity from the law, because they are religious. Their interpretation is much closer to the licentiousness interpretation of liberty firmly rejected by the framing and founding generations. The fact they are using it in sexual misconduct cases itself should be revealing. (Look at the amicus brief filed by the LDS in a footnote in my amicus brief (there is a web address). That case involved a woman alleging she was sexually assaulted by a cantor. She went to her rabbi, who she says then sexually propositioned her. The LDS filed an amicus brief, joined by RCC Bishops, arguing for autonomy from the law in that case.) If they were arguing for a measure of autonomy in the courts, I would not feel so compelled to focus a light on its usage. Ordered liberty captures the notion of measured liberty or freedom far better than autonomy. Just a footnote on abortion.
RE: Hosanna-Tabor and the Ministerial Exception
Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding church autonomy. One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the autonomy of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the Ministerial Exception Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that church autonomy is a crucial dimension of religious freedom through law are claiming immunity from the law [for religious communities] because they are religious. As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I hear the debate, it seems to me that those of us who think church autonomy is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between ministers and religious communities (acting as employers). Who counts as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the good reasons mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about immunity, or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow outweigh the interests of the person demanding the sacrament and / or the interests of the state in vindicating either that person's interests or its own (whatever they might be), thereby warranting, all things considered, an exemption. It is, instead, that a government constitutionally committed to religious freedom is / should be one that lacks, and does not claim, the authority to supervise the Bishop's decision in this matter. Again, I am inclined to think that most of the time, when we talk about religious freedom, we are talking about, and it makes sense to talk about, the costs and benefits of exemptions from otherwise justifiable police-power regulations. But I also think it makes sense - even if we rarely want or need to invoke - the limits-of-secular-power dimension of the religious-freedom conversation. Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN 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/ ___ 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
RE: Hosanna-Tabor and the Ministerial Exception
Thanks, Howard. Is there something in the SG's brief that suggests that it thinks there would be a ministerial exception to the anti-discrimination provisions, but not the anti-retaliation provisions? I may have missed it. The idea is interesting, but I have trouble seeing why the ministerial exception would apply to one but not the other. You say that there may be less risk of erroneous determination of motive in retaliation cases. Maybe you could explain further, I'm not sure I know what you mean. In both discrimination and retaliation cases, courts use the McDonnell Douglas burden-shifting scheme, where juries pass on the church's alleged nondiscriminatory reasons in deciding the existence of discrimination or retaliation. Won't the problematic considerations of job performance (i.e., did the plaintiff-who, by hypothesis, had significant religious duties-do those religious duties well or not?) enter equally into both sets of cases? As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a big part of why the ministerial exception has persisted all these years. Best, Chris From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Friedman, Howard M. Sent: Tuesday, August 16, 2011 11:55 AM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the Ministerial Exception It seems to me the SG is arguing that there is no ministerial exception from the anti-retaliation provisions of the ADA, but is not necessarily arguing the same as to the anti-discrimination provisions. This makes some sense, since-- to the extent that the ministerial exception doctrine is broader than the related ecclesiastical abstention doctrine-- it is designed to protect against imposing a burden on a religious organization to prove the reason for its employment action. I.e. we should not require a church to show that it dismissed an employee, who had a disability, for doctrinal reasons rather than because of the disability. There is likely less risk of erroneous determination of motive in retaliation cases. Beyond this, it seems to me that a missing piece in all of this is the employee's perspective. The cases and briefs posit the church's interest vs. the state's interest. However, from the perspective of the employee, the issue is protection against arbitrary employment action based on factors such as race, national origin or disability, where admittedly those have no relation to doctrinal concerns of the religious organization. Employees of religious organizations often tend to be underpaid as it is. Anyone who has worked with boards of non-profits knows that the possibility of petty motivations for employment actions are not eliminated just because of the religious overlay. Do we really want to make it riskier for individuals to pursue challenging positions with non-profits because they lack protection that every other employee in our society has? Is the risk or erroneous determination of motive strong enough to justify this? Particularly if we add the rule, as the SG's brief suggests, that reinstatement would not be a remedy? Howard Friedman -Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Tue 8/16/2011 10:08 AM To: 'Law Religion issues for Law Academics' Subject: RE: Hosanna-Tabor and the Ministerial Exception Marty asked for opinions on the briefs. Here is what I've been thinking, for whatever it's worth (probably very little). At the outset, I should say that my own views may be atypical, so I'm particularly interested in what others think. Anyway, I was a bit surprised by the briefs. The lower courts have uniformly recognized the ministerial exception. So I assumed that this would be a fight mostly over its scope-does Cheryl Perich, because of her job duties and ecclesiastical office, fall within the ministerial exception or not? But the plaintiffs (the SG and Perich) do not go that way. They don't believe in any ministerial exception, at least as such. Relying on Smith and Jones v. Wolf, they say the ADA is neutral and generally applicable-so there's no general constitutional problem with applying it to religious groups. The Solicitor General says that the relevant
RE: Hosanna-Tabor and the Ministerial Exception
Dear Alan, I don't think I was getting to the level of distinct rules; I was just trying to separate out (or, at least distinguish) two ways of thinking about the problem. My gut-level sense is that, in practice, the institutional-competence / no-entanglement / interest-balancing / is an exemption warranted, all things considered? approach will usually yield (what I would regard as) the right answer in those (rare) circumstances when we are dealing with the limits (not the advisability of exercising) the state's police powers. What do you think? Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN 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 Brownstein, Alan Sent: Tuesday, August 16, 2011 1:39 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the Ministerial Exception Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding church autonomy. One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the autonomy of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the Ministerial Exception Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that church autonomy is a crucial dimension of religious freedom through law are claiming immunity from the law [for religious communities] because they are religious. As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I hear the debate, it seems to me that those of us who think church autonomy is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons - having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between ministers and religious communities (acting as employers). Who counts as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the good reasons mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. But, at least for me, there is another thing that is being said, and should be said: It's not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state's interests, and its power, should run out. This is not a claim about immunity, or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable is not because the Church's religious-freedom interests somehow outweigh the interests of the person demanding the sacrament and / or the interests of the state in vindicating either that person's interests or its own (whatever they might be), thereby warranting, all things considered, an exemption. It is, instead, that a
RE: Hosanna-Tabor and the Ministerial Exception
I haven't given the question a lot of thought, but it would seem to me that that the limits of the state police powers argument would probably be grounded on a secular purpose requirement. Government cannot interfere with the decision to hire or fire someone as clergy for exclusively and intrinsically religious reasons (e.g. G-d would prefer the church to appoint candidate A rather than candidate B; Candidate A is a better spiritual leader for the congregation) Beyond that, when the state asserts a rational health, safety, general welfare or moral justification for its actions, it is hard for me to see how the limits of the state powers arguments comes into play. Then, I think, we are in the world of institutional-competence / no-entanglement / interest-balancing / arguments for shielding the church against state power. Whether a lack of secular purpose analysis would give you a different answer than the institutional-competence / no-entanglement / interest-balancing / analysis in some real world circumstances would probably depend on how the secular purpose requirement is interpreted and enforced. Were you thinking that there are situations where the state lacks regulatory power to intrude into church decisions even though the state has a rational health, safety, general welfare or moral purpose for its actions. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 10:49 AM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the Ministerial Exception Dear Alan, I don't think I was getting to the level of distinct rules; I was just trying to separate out (or, at least distinguish) two ways of thinking about the problem. My gut-level sense is that, in practice, the institutional-competence / no-entanglement / interest-balancing / is an exemption warranted, all things considered? approach will usually yield (what I would regard as) the right answer in those (rare) circumstances when we are dealing with the limits (not the advisability of exercising) the state's police powers. What do you think? Best, Rick Richard W. Garnett Professor of Law and Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, Indiana 46556-0780 574-631-6981 (w) 574-276-2252 (cell) SSRN 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 Brownstein, Alan Sent: Tuesday, August 16, 2011 1:39 PM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the Ministerial Exception Just to make sure that I am understanding Rick's argument correctly. Rick, are you suggesting that there are two constitutional rules regarding church autonomy. One rule calls for the evaluation of institutional competence, no-entanglement, and general interest balancing issues as to which some form of balancing is necessary and appropriate. A second rule involves a limited class of circumstances as to which the state simply lacks power to regulate the decision at issue. And at least part of what distinguishes rule 1 from rule 2 is that the line drawn for rule 2 is not determined by evaluating the institutional competence, no-entanglement and general interest balancing issues that determine the content of rule 1. (Actually, I suppose there would be three rules. Rule 3 would apply the holding of Employment Division v. Smith to religious institutions in those circumstances in which the autonomy of religious institutions receives no protection against neutral laws of general applicability.) Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Garnett Sent: Tuesday, August 16, 2011 9:57 AM To: Law Religion issues for Law Academics Subject: RE: Hosanna-Tabor and the Ministerial Exception Dear colleagues, For what it's worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci's statement that those of us who contend that church autonomy is a crucial dimension of religious freedom through law are claiming immunity from the law [for religious communities] because they are religious. As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I hear the debate, it seems to me that those of us who think church autonomy is part of religious freedom are saying two complementary but distinct things (I'm putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there
RE: Hosanna-Tabor and the Ministerial Exception
Chris-- There are a number of statements in the SG's brief that suggest the government is limiting its argument to the anti-retaliation provisions, without taking a position beyond that. E.g. the policy arguments in part III of the brief all focus on policies relating to retaliation claims. The headings on parts I. and II. of the brief refer only to the anti-retaliation provisions. And at pp. 19- 20, the brief argues: **In particular, petitioner urges the Court to adopt a categorical rule that would bar adjudication of any suit including the ADA retaliation suit at issue in this case concerning a religious employers termination of an employee who performs important religious functions This Court, however, has repeatedly made clear that it will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. ... Although significant constitutional questions may arise in other cases concerning the application of the civil rights laws to religious entities, neither the Free Exercise Clause, nor the right to freedom of association, nor the Establishment Clause, stands as an impediment to adjudication of Perichs claim that she was unlawfully terminated from her teaching position for exercising her rights under the ADA.** As for your issue of religion as voluntary, that is certainly so for adherents of a faith. But for employees who rely on religious institutions for their livelihood-- often under contracts with them-- it is more than just a voluntary relationship. The civil rights laws are exceptions to the common law employment-at-will doctrine. A broad ministerial exception is a rule that religious institutions (and only such institutions) are constitutionally entitled to rely on the employment at will doctrine without legislative modification. There is good reason for that kind of rule when the issue is whether a teacher's views conform to beliefs of the church, or when the issue is whether congregants like the minister's sermon or the cantors voice. There is reason for it when the denomination only recognizes male clergy and refuses to hire a woman pastor (or priest or rabbi or imam). It may even be that an exception is arguably justified for the church that espouses white supremacist racial doctrines when it refuses to hire clergy that are not Caucasian. But it seems to me there is less reason to give a pass to the church board that is bigoted and refuses to hire-- or fires-- an employee on racial grounds in the face of formal church doctrine that calls for racial equality. There the only justification is that usually there is a dispute about whether the firing was racially motivated, and subjecting the church to a remedy (particularly of reinstatement) when the court's determination on motive could have been erroneous is a risk we are unwilling to impose. Howard Original Message- From: religionlaw-boun...@lists.ucla.edu on behalf of Christopher Lund Sent: Tue 8/16/2011 1:49 PM To: 'Law Religion issues for Law Academics' Subject: RE: Hosanna-Tabor and the Ministerial Exception Thanks, Howard. Is there something in the SG's brief that suggests that it thinks there would be a ministerial exception to the anti-discrimination provisions, but not the anti-retaliation provisions? I may have missed it. The idea is interesting, but I have trouble seeing why the ministerial exception would apply to one but not the other. You say that there may be less risk of erroneous determination of motive in retaliation cases. Maybe you could explain further, I'm not sure I know what you mean. In both discrimination and retaliation cases, courts use the McDonnell Douglas burden-shifting scheme, where juries pass on the church's alleged nondiscriminatory reasons in deciding the existence of discrimination or retaliation. Won't the problematic considerations of job performance (i.e., did the plaintiff-who, by hypothesis, had significant religious duties-do those religious duties well or not?) enter equally into both sets of cases? As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a big part of why the ministerial exception has persisted all these years. Best, Chris
Re: Hosanna-Tabor and the Ministerial Exception
If the Court upholds a ministerial exception, it is only fair for the federal government and the states to amend their anti-discrimination laws to require employers otherwise covered to disclose to their religious employees that they will not have the protection of the anti-discrimination laws if they accept the employment of this religious organization. We live in a culture where there is a basic assumption that it is wrong to discriminate. Employees in these cases are typically in shock that the religious organization could have a First Amendment or any other defense to otherwise illegal discrimination. I have never spoken to Ms. Perich, but I can imagine that it came as a surprise to her that her employer (1) would engage in disability discrimination against her, and (2) then raise the First Amendment to permit such discrimination. The same is true in the cases involving gender and race discrimination (especially where the original appointment had no gender/race requirement). (If anyone thinks that religious organizations do not engage in invidious gender or race discrimination not motivated by their religious beliefs, I would be happy to put you in touch with various victims who would say otherwise.) A disclosure requirement would be the least that would need to be done to level the playing field between religious organizations and their employees. Marci In a message dated 8/16/2011 4:28:59 P.M. Eastern Daylight Time, howard.fried...@utoledo.edu writes: As for the reasons for the ministerial exception, part of it is surely about erroneous determination of motive. And part is about reinstatement. But I think there's something else too. Religion is supposed to be this voluntary thing. We can all think of how this is true for religious beliefs and practices-we see it everywhere from Torcaso v. Watkins to Santa Fe v. Doe. But it's true too for religious associations, which should be chosen by people and not imposed by the state. The ministerial exception is part of that voluntary principle. By creating a kind of constitutionalized at-will employment, it guarantees that when congregations and clergy stay together, it's because they choose to do so. Now I don't know if it will survive, but I think that's a big part of why the ministerial exception has persisted all these years. Best, ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Hosanna-Tabor and the Ministerial Exception
Rick: I'm not exactly sure whether you mean to suggest that Hosanna-Tabor itself is an example of your second sort of case, i.e., as involving something the state lacks the power to regulate. I think we would all agree with you that, at least without more, the state lacks the power to tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable -- not only because that decision would almost certainly involve a question of religious doctrine or suitability about which the state has no competence to opine, but also, and perhaps more fundamentally, because the state simply has no real interest in regulating such decisions. And, as it turns out, we really don't have to worry about such cases: Because states have no interest in such internal religious matters as conferral of sacraments, states in practice have not even attempted (so far as I know) to regulate such conferrals. (I would note, however, for what it's worth, that Part I of the Employment Lawyers amicus brief -- http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_respondentamcunela.authcheckdam.pdf -- appears to provide a pretty compelling account of how U.S. courts regularly adjudicated actual ministers' suits against churches quite regularly throughout most of our early history -- in contract claims and the like -- and sometimes ordered reinstatement without any suggestion of constitutional barriers.) But that's a far cry from this case, right? Here, Perich threathened to file an ADA suit when she suspected that the school would not allow her to teach because of her disability. The school thereafter concededly fired her from her teaching job because she threatened to file such an ADA claim -- what would be a clear violation of the ADA anti-retailiation provision if there were no constitutional barrier. Whatever else may be true about the case and the propriety of applying the ministerial exception, surely the state does not lack an interest, or lack the power, to prohibit firing from a teaching position on the basis of disability, or on the basis of retaliation for threathening to enforce that antidiscrimination norm -- at the very least (as here) where the teacher's duties included the teaching of secular subjects in a school offering services for a fee to the public as a whole. That is to say, this is a far cry (isn't it?) from the case you posit, in which the state would (as no state does) try to regulate the question of who is worthy to conferral of sacrements. The state's legitimate interest in that case would be very difficult to identify and defend. But here there is no such problem. On Tue, Aug 16, 2011 at 12:57 PM, Rick Garnett rgarn...@nd.edu wrote: Dear colleagues, ** ** For what it’s worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci’s statement that those of us who contend that “church autonomy” is a crucial dimension of religious freedom through law are claiming “immunity from the law [for religious communities] because they are religious.” As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. ** ** As I “hear” the debate, it seems to me that those of us who think “church autonomy” is part of religious freedom are saying two complementary but distinct things (I’m putting aside questions regarding what we say about lines of cases, particular Clauses, etc.): First, in some cases, there are good reasons – having to do with institutional competence, the no-entanglement rule, interest-balancing, etc. -- to limit the role of the secular political authority in resolving and regulating disputes between “ministers” and religious communities (acting as employers). Who “counts” as a minister? Which religious communities are covered? What are the best procedures to employ in order to operationalize the “good reasons” mentioned above? These and others are questions that, as I think Paul and Marci have both said, involve balancing, trade-offs, predictions, etc. ** ** But, at least for me, there is another thing that is being said, and should be said: It’s not all or only about balancing. In my view, the ministerial-exception debate is a reminder that, at some point, the state’s interests, and its power, should run out. This is not a claim about “immunity”, or special-purpose carve-outs from the application of otherwise applicable public authority; it is a claim that there are some things (not that many, I am inclined to think, but some) the state lacks the power to regulate. So, the reason why a court could not tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did
RE: Hosanna-Tabor and the Ministerial Exception
Dear Marty, My aim was a pretty modest one: Just to flag the possibility that the ministerial-exception debate involves, at some ponit, thinking about the limits on government power, and not just the costs and benefits of government action. As for the question, where does the H-T case itself fit . . . I don't agree with you that this case is a far cry from what I take to be the case-at-the-core, but I suspect that is because you and I disagree about the extent to which Ms. Perich's position is a ministerial one. (And, I suspect we won't resolve that disagreement here!) I wonder, is it so clear that the state lacks any interest in internal religious matters? I'm not sure. I guess -- sorry for being a broken record -- I'd rather say that it lacks power over such matters. Hope you are well -- R Richard W. Garnett Professor of Law Associate Dean Notre Dame Law School P.O. Box 780 Notre Dame, IN 46556-0780 574-631-6981 (office) 574-631-4197 (fax) From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman [lederman.ma...@gmail.com] Sent: Tuesday, August 16, 2011 5:28 PM To: Law Religion issues for Law Academics Subject: Re: Hosanna-Tabor and the Ministerial Exception Rick: I'm not exactly sure whether you mean to suggest that Hosanna-Tabor itself is an example of your second sort of case, i.e., as involving something the state lacks the power to regulate. I think we would all agree with you that, at least without more, the state lacks the power to tell a Roman Catholic bishop that he had to confer the sacrament of Holy Orders on a person whom that Bishop did not think was suitable -- not only because that decision would almost certainly involve a question of religious doctrine or suitability about which the state has no competence to opine, but also, and perhaps more fundamentally, because the state simply has no real interest in regulating such decisions. And, as it turns out, we really don't have to worry about such cases: Because states have no interest in such internal religious matters as conferral of sacraments, states in practice have not even attempted (so far as I know) to regulate such conferrals. (I would note, however, for what it's worth, that Part I of the Employment Lawyers amicus brief -- http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-553_respondentamcunela.authcheckdam.pdf -- appears to provide a pretty compelling account of how U.S. courts regularly adjudicated actual ministers' suits against churches quite regularly throughout most of our early history -- in contract claims and the like -- and sometimes ordered reinstatement without any suggestion of constitutional barriers.) But that's a far cry from this case, right? Here, Perich threathened to file an ADA suit when she suspected that the school would not allow her to teach because of her disability. The school thereafter concededly fired her from her teaching job because she threatened to file such an ADA claim -- what would be a clear violation of the ADA anti-retailiation provision if there were no constitutional barrier. Whatever else may be true about the case and the propriety of applying the ministerial exception, surely the state does not lack an interest, or lack the power, to prohibit firing from a teaching position on the basis of disability, or on the basis of retaliation for threathening to enforce that antidiscrimination norm -- at the very least (as here) where the teacher's duties included the teaching of secular subjects in a school offering services for a fee to the public as a whole. That is to say, this is a far cry (isn't it?) from the case you posit, in which the state would (as no state does) try to regulate the question of who is worthy to conferral of sacrements. The state's legitimate interest in that case would be very difficult to identify and defend. But here there is no such problem. On Tue, Aug 16, 2011 at 12:57 PM, Rick Garnett rgarn...@nd.edumailto:rgarn...@nd.edu wrote: Dear colleagues, For what it’s worth (disclosure: I helped on an amicus brief, for the church-school, in the H-T case), and with respect to Marci’s statement that those of us who contend that “church autonomy” is a crucial dimension of religious freedom through law are claiming “immunity from the law [for religious communities] because they are religious.” As I see it, the claim is one about the limits of secular, political authority, and not only about carve-outs (the shapes and existence of which are determined by interest-balancing) from otherwise applicable police powers. As I “hear” the debate, it seems to me that those of us who think “church autonomy” is part of religious freedom are saying two complementary but distinct things (I’m putting aside questions regarding what we say about lines of cases, particular Clauses, etc.):
