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Monday, April 04, 2011

Some Thoughts in Defense of the Ministerial Exception

So Rick has gotten us started on the ministerial exception.  Caroline Corbin offered some opening thoughts here, and Marci Hamilton has a nice column here.

The short of it is that the federal courts of appeals have all recognized a “ministerial exception,” which exempts religious organizations from the anti-discrimination laws when it comes to their “ministers” (however defined).  The Supreme Court has never had a ministerial exception case.  Until last week that is, when it granted certiorari in EEOC v. Hosanna-Tabor.  The case involves the question of whether the ministerial exception really exists and, if so, what it covers.

People understand the ministerial exception pretty well when it’s about following religious doctrine.  Even if they disagree, people get the reasons why we would want to exempt the Catholic Church’s priesthood from the sex-discrimination laws.  But people have a harder time understanding why we would have a ministerial exception going beyond religious doctrine—they don’t see, for example, why we would ever exempt the United Methodist Church (which officially ordains women) from sex discrimination claims by their ministers.

It’s a good question. 

I’ve been working recently on a paper about the ministerial exception.  And I’ve been trying to explain this particular point recently in conversation both to some friends and my parents (who have mostly rejected what I’m about to say).  So it might be garbage.  I’ll leave that to you.  But below are three reasons why courts might want to adopt this sort of broad ministerial exception.  So if the Supreme Court ends up going this way, here are three reasons not to freak out.

1.  The Remedial Problem.  Reinstatement is the preferred remedy under our anti-discrimination laws.  In the context of ministers, this means forcing a minister on a church, against its will and over its objections.  Choosing a leader is obviously an essential component of religious life:  We call them “Christians” because they follow Christ; we call them “Buddhists” because they follow Buddha.  Forcing religious leaders on people is thus a classic free exercise problem.  But it’s also a classic establishment problem; one key part of the established church was that the state chose the ministers (consider, for example, why Henry VIII came to create the Anglican Church).  Some have suggested just giving damages rather than reinstatement.  But this still functions as government control over the church’s clergy, just in a different way: Appoint this minister or pay a fine.  (And surely a tax on religious exercise should be treated like an outright prohibition.)  The essence of the Establishment Clause was that people should not have to pay for a minister that is not their minister.  But that is what the damage remedy here essentially does.

There’s also a macroscopic remedial problem here.  The Protestant and Jewish denominations who officially ordain women have massive gender imbalances.  There’s real potential here for large-scale, industrial-strength class actions.  Eliminate the ministerial exception (or reduce it to being about religious doctrine), and we’ll have federal courts restructuring the core of many religious denominations: changing seminary and rabbinical school admission, the ordination process, and the call procedure (i.e., the way congregations select individual ministers).  There’s also a delicate point here about affirmative action.  Some churches have affirmative action programs for women.  I have no idea if they comply with the United Steelworkers v. Weber framework; some at least don’t seem to do so.

2.  The Inquiry Problem.  When a minister claims to have been fired because of some illicit reason, a church will usually respond by saying what defendants typically say in employment cases—there was something wrong with the minister’s job performance.  In the context of religious employment, though, that translates into the church saying she was a bad minister—maybe she was bad in the pulpit, maybe people did not like her bible studies, maybe she was not good at counseling parishioners, whatever.  McDonnell Douglas works by having the jury scrutinize the validity of those claims.  The jury essentially asks itself—well, was she a bad minister or not?  But that can be a difficult question for juries to answer; it requires the jury to pass on quintessentially religious questions.

3.  The Control Problem.  Part of the ministerial exception is simply the idea that churches should have some sort of basic right to run their own affairs.  Many free exercise cases have been cases of conscience objection.  The government demands you do one thing; your religion demands that you do another.  But religion isn’t just about the ability to obey commands.  Probably no one thinks that God requires them to sing in the church choir or attend church on Sunday rather than Wednesday.  But surely it would burden religious exercise if the government started forbidding church choirs or Sunday worship.  Free exercise isn’t just a right of conscientious objection; it’s a right to practice one’s religion free of intrusive governmental regulation.

If you start from this perspective, you will see a lot of reasons why churches might legitimately object to employment discrimination laws, even when they agree with the principles standing behind those laws.  Churches might want to avoid government regulation on principle; they might fear that some regulation now will mean more regulation later.  They might agree with the law but fear the enforcement apparatus (depositions, civil trials, etc.) or fear that secular bodies will not enforce the laws fairly—an important Ninth Circuit case involved a female minister suing in federal court for sexual harassment after a church court consisting of 3 women and 2 men dismissed her claims as unsubstantiated. 

So these are some basic reasons underlying a strong sort of ministerial exception.  Frankly, I’m still figuring out what I think, but those are some arguments I would make in support of it.  There’s a wide gap out there between the two sides; I’m hoping to lessen some of that with this post.

Posted by Chris Lund on April 4, 2011 at 09:01 AM in Religion | Permalink

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A "strong sort of ministerial exception" might be an absolute one. Perhaps, it's useful to define the contours and point to some exceptions. For instance, "ministerial" doesn't only apply to priests or at least in some cases it applies to a broad range of activities and persons beyond what many see as "ministers." There might be some overlap there with finding the limits of a "press privilege" when some blogger is covered. Also, I can see how some exception is needed to avoid intrusiveness, but that sort of thing also led to a total marital privilege ban and barriers to marital rape laws. Prof. Hamilton raises similar concerns, citing child abuse litigation and such. So, again, complicated.

Posted by: Joe | Apr 4, 2011 9:57:35 AM

"a total marital privilege ban" ... "ban" should either be struck out or amended to note that the privilege banned even voluntary testimony in abuse cases and so forth.

Posted by: Joe | Apr 4, 2011 10:00:11 AM

It seems to me that the most important question in this area, albeit not one the Supreme Court might get at in this case, is what is a "minister"? Suppose a church has a doctrine/dogma/belief that women should not work outside of the home. May the church discriminate on the basis of gender in hiring sunday school teachers? Facilities managers? Janitors?

Posted by: Hillel Y. Levin | Apr 4, 2011 11:04:39 AM

I think you're completely right, Hillel. After the primary questions (does it exist? is it limited to conscience?) comes the big secondary question (who is a minister?). Surely clergypeople, surely not janitors, but where's the line? The big issue has been parochial school teachers who teach religion but have other duties--in part, I think, simply because there are so many of them! It's not an easy question--there are no clear points of differentiation in the spectrum between minister and janitor, so drawing a line will be an ugly sort of task.

Posted by: Chris Lund | Apr 5, 2011 10:04:19 AM

It might be interesting if we considered politics rather than religion. Should the Democratic Party be allowed to insist that its staff vote Democrat - or at least avoid groups and activities which are contrary to party policy? Should the Republicans have the same control over its staff? If not, at what point do you draw the line?
Surely it is just plain common sense that the government should be get involved in telling opinion campaigners how to run their business.

Posted by: Malcolm | Apr 6, 2011 2:38:44 AM

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