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Wednesday, January 11, 2012

Court unanimously embraces the ministerial exception in Hosanna-Tabor

I confess, I expected the usual "decision in late June," but I'll certainly take this:  In an opinion for a unanimous Court, Chief Justice Roberts ruled in Hosanna-Tabor that the Constitution requires a ministerial exception, and that the exception applied in that case.  Importantly, the Chief Justice rejected the idea -- it "misses the point," he said -- that a religious institution must assert a "religious reason" for an employment decision in order to trigger the Constitution's limits on government involvement in the selection of ministers.  Also very important, I think, was the Court's clear rejection both of the Sixth Circuit's "count up the hours" approach to identifying "ministers" and its emphasis on the fact that the teacher in this case had "job duties" that "reflected a role in conveying the Church's message and carrying out its mission."  In other words, the exception is clearly not limited to ordained clergy.

Many of us have blogged often about the case and the questions it raises.  I'm sure the conversation will continue.  Suffice it to say (for now) that, in my view, this decision is important, correct, and welcome.

UPDATE:  Here's my insta-punditry, at USA Today, about the case:

At a time when the elected branches of government seem divided and dysfunctional, and when candidates in primary elections struggle to magnify every disagreement, it was nice of the Supreme Court, led by Chief Justice John Roberts, to remind us today that clear, efficient, consensus, and correct decisions about things that really matter are still possible . . .

Posted by Rick Garnett on January 11, 2012 at 10:48 AM in Rick Garnett | Permalink


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I can't see how it is correct. The decision is essentially limited to the facts, and leaves the important questions unsettled. Justice Thomas provides the only comprehensive theory for understanding the ministerial exception, and Alito and Kagan at least try harder.

I mean, how does the majority address this point of Thomas's? "The question whether an employee is a minister is itself religious in nature, and the answer will vary widely."

Many commentators that I have read, from every side of the political spectrum, have contended that WHETHER or not Perich was a minister was something courts shouldn't try to answer...

Posted by: AndyK | Jan 11, 2012 1:39:38 PM

So this means (and someone please correct me if I am wrong, and I hope I am wrong), that if a teacher who primarily teaches secular subjects but is considered a "minister" is being sexually harassed, complains about the harassment,and then is fired in retaliation for complaining about the harassment, the Church wins. No questions asked. The church could even say that she is being fired for complaining about sexual harassment, or that she should just put up with sexual harassment, there is no remedy. As the Chief Justice said, the Church's reason does not even have to be religious -- it can be completely discriminatory and there is no remedy. Right?

Posted by: adjunct law prof | Jan 11, 2012 2:54:49 PM

The majority is so "clear" by avoiding various hard questions raised by the litigants. Roberts minimalism strikes again!

Posted by: Joe | Jan 11, 2012 5:14:17 PM

Rick, I was pleased to see that CJ Roberts incorporated a good deal of your (et. al) historical analysis into the opinion. I think those are excellent points, and you all are to be congratulated...

I still think racism in the name of religion--to the extent it exists--may present special problems for the doctrine...

Posted by: Ian Bartrum | Jan 11, 2012 8:33:27 PM

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