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Monday, March 09, 2009

Jurisdiction, Connecticut, and Freedom of the Church

Rich and Rick commented on the proposed Connecticut bill regulating the structure of religious entities, in pretty clear violation of the Catholic Church's First Amendment liberty to organize itself. I find the story of this bill (which likely will not be enacted, so some of this is academic) interesting for what it indicates about the nature of the so-called "Freedom of the Church" Doctrine.

FOTC prohibits (or at least limits) secular law and/or secular courts from affecting or resolving questions of religious doctrine--such as who may serve as clergy and perform ministerial functions and who owns or controls church property. An ongoing debate is whether that doctrine reflects First Amendment limits on the adjudicative jurisdiction of the courts (as Greg Kalscheur argues) or the prescriptive jurisdiction of the legislative and/or judicial bodies that make substantive secular law (as I plan to argue in a paper, hopefully next year). In my view, the FOTC is an example of a constitutional limit on the power (i.e., the jurisdiction) of a substantive lawmaker (usually the legislature, although it could be common law courts) to create (i.e., prescribe) legal rules regulating certain conduct by certain actors. Which is the quintessential inquiry of substantive merits. For example, the "ministerial exemption" (a First-Amendment-inspired rule that interprets federal employment-discrimination laws such as Title VII not to apply to clergy, ministerial, and religious employment decisions) is best understood not as a limit on the jurisdiction of federal courts to hear and resolve cases, but as a limitation on the jurisdiction of Congress to enact substantive law that would regulate certain church conduct (hiring decisions).

The Connecticut bill is illuminating because it reflects a different application of FOTC.

In most cases, the source of the jurisdiction/merits confusion is how an otherwise neutral law of general applicability (such as Title VII or the rules of property ownership) applies to the affairs of religious organizations. Courts seem to find it too easy to say that, because the First Amendment prevents Title VII from reaching the Church's choice of Priests and from imposing liability on the Church for them, that must deprive the court of jurisdiction. That analysis is wrong, but I see how courts might get there. And courts are correct that there is a jurisdictional limitation at issue--but it is a First Amendment limit on legislative jurisdiction to make substantive law, not on adjudicative jurisdiction to hear cases arising under that substantive law. That confusion is very common.

But the Connecticut legislation is not a law of general applicability; it is a direct and explicit regulation on how churches structure and govern themselves. And if we imagine how a constitutional challenge might play out, it becomes clear that the First Amendment and FOTC are about substantive and legislative/prescriptive jurisdiction.

Assume the bill passes and Connecticut brings an enforcement action against the Catholic Church for failing to organize as required by state law; the Church defends by arguing that the law violates the First Amendment under FOTC. A court agreeing with that defense would hold that the law is unconstitutional and Connecticut cannot enforce it; it cannot lawfully regulate the Church in this way. The court would dismiss the claim not for lack of subject matter jurisdiction (the case probably was brought in Connecticut state court, which is a court of general jurisdiction, and SCOTUS would review it as a final judgment of the highest court of a state). Rather, it was dismissed because the state's claim against the Church fails on its merits because the legal rule sought to be enforced is invalid (or as I put it earlier in this series of articles, the legal rule to be enforced does not exist as law because it constitutionally cannot exist as law).

Alternatively, the Catholic Church might bring a pre-enforcement challenge to the law (probably in federal court) and the federal court will hold (presumably) that the law violates the First Amendment (under FOTC) and is not enforceable. But that clearly is a decision about substantive federal law and the constitutional limits of congressional power to enact substantive law.

If FOTC is about substantive merits in the context of such a pre-enforcement challenge, it also must be about substantive merits when the First Amendment is raised as a defense to an enforcement action. And the analysis for an enforcement action is (or should be) no different with a law of general applicability, such as Title VII.

Posted by Howard Wasserman on March 9, 2009 at 07:22 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink


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Howard -- great post. I'm looking forward to your paper!

Posted by: Rick Garnett | Mar 9, 2009 2:26:49 PM

Very interesting post, but are the jurisdiction and merits views really mutually exclusive? Put differently, doesn't (or couldn't) the "First Amendment limit [BOTH] legislative jurisdiction to make substantive law [AND] adjudicative jurisdiction to hear cases arising under that substantive law?" All the cases say that the doctrine serves two purposes: (1) to prevent coercion of religious organizations and (2) to prevent entanglement of secular authorities in religious disputes. The former obviously applies mostly to legislative jurisdiction, but the latter seems to apply with special force to the jurisdiction of courts. The jurisdictional view also seems necessary to explain why the FOTC/internal affairs doctrine is not subject to waiver or estoppel. See Minker v. Baltimore Annual Conference of United Methodist Church, supra, 894 F.2d at 1354, 1356-57 (1990).

Posted by: AC | Mar 9, 2009 6:47:59 PM

Not as I argue (although no one seems to listen) jurisdiction should be understood. "Preventing entanglement of secular authorities in religious disputes" easily goes to legislative jurisdiction--keeping secular law (the legal rules enacted by secular authorities) from being used to affect or resolve religious disputes. To the extent it affects courts, it arguably is on the courts' *prescriptive* authority to create common law rules, distinct from the authority to adjudicate. The upshot of these cases is that there is no claim under the secular law (Title VII, property, whatever) governing this dispute because secular law cannot reach such a dispute.

As for waiver/estoppel: Those are incidents of jurisdiction, but they can be incidents of non-jurisdictional rules.

Posted by: Howard Wasserman | Mar 9, 2009 8:34:16 PM

But *the reason* FOTC is not subject to waiver or estoppel is that deciding these cases--with or without consent of the parties--would entangle *the court* in the internal affairs of religious organizations. This problem arises not only when courts create common law rules but also when they evaluate the strengths and weaknesses of religious justifications for particular actions--say firing an employee. I am not familiar with your writings on jurisdiction but this strikes me as a classically jurisdictional argument. The problem is inherent in the exercise of judicial authority over religious subject matter, quite apart from the substantive standards applied or the results reached (though obviously these could be independently problematic). If you haven't seen it, you might be interested in Judge Posner's extended defense of the jurisdictional view, offered in Tomic v. Catholic Diocese of Peria, 442 F.3d 1036 (7th Cir. 2006).

Posted by: AC | Mar 9, 2009 9:27:56 PM

I have read Tomic; Posner was wrong (there, I said it). It *is* a jurisdictional argument, as I said in the original post, but it is *presciprtive* jurisdiction. The real concern is not just the courts evaluating the strengths and weaknesses of those justification for firing the employee, but having secular law (such as Title VII) used to second-guess those justifications. The problem is the exercise of *secular* legal authority over religious subject matter, regardless of the body exercising that authority. It is only about the judiciary because that is the ordinary means of enforcement of the substantive law. But compare a case like *Catholic Bishop*, where the issue was the jurisdiction of an administrative agency (the NLRB) over issues touching on the governance of a Catholic institution--the problem was the substantive scope of the NLRA and whether it could reach conduct of religious entities.

Posted by: Howard Wasserman | Mar 9, 2009 10:21:08 PM

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