Re: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit
Thanks to Alan for the clarification - I'm not particularly attached to the term jurisdictional, and the analogy to other structural concerns is useful. The main point, which Chip and I tried to make in a Georgetown symposium piece a couple of years ago (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1270706) is that civil courts should be disabled from resolving certain kinds of issues, notwithstanding the perceived public interest in having courts intervene. I'm not sure I understand Alan's question about where the categorical ban on interest balancing arises - but I do think it relates to a fundamental aspect of non-establishment (the limit on government's power to deploy religion for civil ends). Bob On Tue, Jul 20, 2010 at 11:41 AM, Brownstein, Alan aebrownst...@ucdavis.edu wrote: I have always assumed – and Bob can clearly tell me if I am way off base – that when Bob uses the term “jurisdictional” in discussing Establishment Clause issues, he is referring to what others might call “structural” constitutional constraints, such as the separation of power rules, which are considered to be nonwaivable and not subject to interest balancing in their application. I am not sure whether Bob believes that categorical or definitional interest balancing has a role to play in determining what these Establishment Clause rules should be and only rejects interest balancing in the application of the rules in specific cases or whether he believes that structural/jurisdictional Establishment Clause doctrine is derived exclusively from more abstract principles. Alan Brownsteijn *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Christopher Lund *Sent:* Tuesday, July 20, 2010 7:01 AM *To:* 'Law Religion issues for Law Academics' *Subject:* RE: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit Bob, this may be a dumb question and you may have an easy answer for me. But if you’re not referring to subject-matter jurisdiction, I’m having trouble understanding what you mean when you call this “jurisdictional” in a more general sense. I understand that jurisdictional defects can be nonwaivable—that parties don’t have to plead them, courts have an independent obligation to consider them, even final judgments are void if they were present when litigated. But my understanding is all of that only follows from problems with subject-matter jurisdiction. Even a lack of personal “jurisdiction” can be waived, for example. So I guess what I’m asking is this. Once you concede that we’re not talking about subject-matter jurisdiction, doesn’t the legal claim that this is nonwaivable become quite hard to argue? Is there precedent to say that problems other than subject-matter jurisdiction are nonwaivable? Regarding Eric’s point, a case that helped me was Arbaugh v. Y H Corp., 546 U.S. 500 (2006), where the Court held that the 15-employee requirement in Title VII did not go to subject-matter jurisdiction. The Court was unanimous, and Eric perfectly summarizes its logic: Title VII is a federal law; therefore there is presumptively subject-matter jurisdiction pursuant to 28 U.S.C. § 1331; and nothing in Title VII explicitly says that the 15-employee requirement was meant to be a jurisdictional limitation on that. *Arbaugh* also talks for a bit about the problem of “drive-by jurisdictional rulings”—the bad habit of courts saying that something is barred for lack of jurisdiction when they really just mean that there’s no valid claim on the merits—which may be exactly the sort of thing to which Eric was referring. Best, Chris *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Robert Tuttle *Sent:* Monday, July 19, 2010 9:07 PM *To:* Law Religion issues for Law Academics *Subject:* Re: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit In reply to Eric, I don't mean jurisdictional in the sense of subject matter jurisdiction - and I think courts are usually wrong to dispose of ministerial employment cases on a motion to dismiss -- facts are always needed, if nothing other than to determine whether the position is ministerial. By jurisdictional, I mean only that the exception isn't subject to waiver or interest balancing, but that only suggests that its source is in the Establishment Clause rather than Free Exercise/RFRA, etc. Michael Masinter's point about the sexual harassment cases is well-taken, and as you all know the courts have not applied the ministerial exception in that context, because the claims do look more like assault than disputes over qualifications/performance. But I don't think it matters whether or not the congregation claims that race/gender/age discrimination are matters of doctrine - the point is that the state can't set qualifications for ministry, or step into determine
Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
their (the institutions’) religious liberty. But I’m wondering if Marci’s proposed warning requirement applies only to religious employers (and if so, why? Because they are employers? Because they are religious?) or to all whose rights-exercise might cause “harm”? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Robert Tuttle Professor of Law David R. and Sherry Kirschner Berz Research Professor of Law Religion GWU Law School SSRN download page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=271025 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 10th Circuit Finds Church Immune From WorkplaceDiscrimination Suit
is a better choice than a better qualified woman is immune. Employees are doubly disabled in these scenarios. First, as Americans the culture encourages them to trust religious leaders (though surely that is declining in light of the steady investigative reporting suggesting folks do that at their peril). More importantly, because of the ministerial exception, few cases are ever filed, let alone litigated, and, therefore, the incidence of gender discrimination is not publicized. So women are going into these jobs with expectations of fairness that are not borne out, because of a First Amendment doctrine. One option is to carve back on the right so that no employer who fails to advise an employee of this issue can claim it. Bob objected to that, because the ministerial exception is jurisdictional. But if this is the result, why should it be? Why isn't it a right, like the freedom of speech in defamation cases, which carries with it some obligations and weighing, depending on the scenario? One option is to have the government inform applicants through public education, as in add language to the tax forms. Another is to have anyone who is taking government funds for mission have to agree as a condition of receiving the funds to inform employees about the risks they are taking by taking the employment. Is Rick saying none of these options are constitutional and/or desirable? Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University In a message dated 7/19/2010 9:50:33 A.M. Eastern Daylight Time, rgarn...@nd.edu writes: I agree, for what it’s worth, that it makes good sense for attorneys representing churches and religious institutions to advise their clients to inform those in ministerial positions (that is, in any position that the church regards as ministerial) about their (the institutions’) religious liberty. But I’m wondering if Marci’s proposed warning requirement applies only to religious employers (and if so, why? Because they are employers? Because they are religious?) or to all whose rights-exercise might cause “harm”? ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Robert Tuttle Professor of Law David R. and Sherry Kirschner Berz Research Professor of Law Religion GWU Law School SSRN download page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=271025 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: 10th Circuit Finds Church Immune From Workplace Discrimination Suit
I don't object to the duty Marci seeks to impose - notice to ministerial employees of their limited right to bring certain kinds of actions against their religious employer. The remedy is the problem - I assumed from Marci's original post that failure to give notice would result in waiver of the ministerial exception, and I don't think it is (or should be) subject to waiver. That's why the required duty to report child abuse is distinguishable - the duty's not the problem. (Interesting hypo at the intersection of the two -- a pastor reports a fellow pastor's sexual abuse of a child, and the reporting pastor is fired by the religious employer. The discharged pastor brings a wrongful discharge action - result? The ministerial exception should apply, barring the suit, even though the reporting pastor (and the employing organization) had a legal duty to report.) The options you provide - apart from the last one - are all by way of notice, and while others might weigh in with concerns, I think it would be perfectly fine to impose the requirements. In general, I think the same with the condition on eligibility for benefits - if all that's required is notice as the price of entry (rather than waiver as the condition), it's hard to see the objection. So what remedy, apart from waiver of the exception, would you propose? Bob -On Fri, Jul 16, 2010 at 3:44 PM, hamilto...@aol.com wrote: Bob makes very good points but I'm not persuaded. Religious employers can be required to report child abuse by their employees, so why can't they be required to provide legal boilerplate to incoming employees? If Bob is right, we have serious problems in my view. The public policy problem is that no religious organization is going to make such a warning without being prodded by the law (or insurance cos., but they do not prod without legal --aka financial -- consequences). So we are stuck with obvious harm to employees of religious organizations but no solution. I am a firm believer that the Constitution was not intended and should not make it impossible for government to prevent or remedy substantial harm. So that leaves the government -- charged with protecting citizens from harm -- on Bob's theory hamstrung from requiring religious employers to issue a warning regarding the state of the law. So how does the government protect its citizens? I guess there are several public education options: (1) public service announcement: if you are considering or are working for a religious institution in a religious capacity, you need to understand that it is immune under judicial doctrine from anti-discrimination laws, including sexual harassment and gender discrimination (2) on every W-2, which the religious employer must provide to every full-time employee, right?, there is boilerplate saying the same as above. Here is another option-- how about no religious organization can be eligible for faith-based funding unless it provides to its employees a statement that it is immune from the anti-discrimination laws? Marci In a message dated 7/16/2010 3:13:44 P.M. Eastern Daylight Time, rtut...@law.gwu.edu writes: Marci's idea of a warning for ministerial employees would certainly be a prudent step for religious employers to take on their own initiative, but I don't think the state could impose such a requirement as a condition of the religious employer invoking the exception in litigation -- the exception seems to me jurisdictional, not something derived from a religious organization's claim of autonomy (about which there is good reason to be dubious) but rather from courts' constitutional inability to determine what is adequate qualification for or performance of the ministerial role. Bob Tuttle ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Robert Tuttle Professor of Law David R. and Sherry Kirschner Berz Research Professor of Law Religion GWU Law School SSRN download page: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=271025 ___ 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: Ave Maria Law School invokes ministerial exception in wrongful termination suit
I agree with Doug - there are a number of cases involving religious high schools that have made similar claims about teachers of generally secular subjects -- arguing that all teachers in the school are expected to infuse religious values into all subjects -- but as far as I know those schools have uniformly lost. Bob Tuttle On Tue, Jun 30, 2009 at 3:39 PM, Douglas Laycocklayco...@umich.edu wrote: Similar arguments were made early on in EEOC v. Mississippi College, 626 F.2d 477, 484-85 (5th Cir. 1980). No ministerial exception because the College is not a church and its faculty members are not ministers. Professors of theology and seminary faculty are within the ministerial exception. EEOC v. Catholic University (D.C. Cir 1996) and EEOC v. Southwestern Baptist Theological Seminary (5th Cir. 1981 or so). Faculty in secular subjects have been held outside it, and it is hard to see how law professors would be any different. Quoting Ed Brayton stcy...@gmail.com: http://avewatch.com/?p=136 This strikes me as highly unlikely to succeed, especially since the law school had to have represented to the ABA many things that would undermine their claim to the exception. Thoughts from the scholars on the list? Ed Brayton Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 ___ 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. -- Robert Tuttle Professor of Law David R. and Sherry Kirschner Berz Research Professor of Law Religion GWU Law School ___ 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.
