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Friday, February 25, 2011

Church Autonomy on Tap?

John Elwood at Volokh discusses two law and religion cases that are scheduled at the Supreme Court's case conference today.  It's interesting to me that both involve church autonomy questions -- whether and when the state ought to interfere with matters of church governance and management.  The second case, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, would involve the Court in a ministerial exemption issue.  The terminated employee, through the EEOC, brought a claim under the Americans With Disabilities Act (according to the petition for cert. filed by Doug Laycock, she claimed in part that she was fired because of her diagnosed narcolepsy -- interesting).

I hope the Court takes Hosanna-Tabor, if only to declare itself on the ministerial exemption.  The federal circuits have uniformly accepted the ME, though there is a difference of opinion about its scope.  But the Supreme Court hasn't even officially ever recognized the doctrine at all.  Arguably, it obliquely acknowedged the ME in NLRB v. Catholic Bishop of Chicago, where it said that "excessive entanglement" concerns necessitated that teachers in parochial schools be exempted from collective bargaining requirements.  But it would be good to get a clear statement from the Court on the viability, let alone the reach, of the ME. 

Posted by Marc DeGirolami on February 25, 2011 at 10:38 AM | Permalink


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First, not all the merits circuits call it an affirmative defense; others call it a limitation on the scope of Title VII and on the plaintiff's claim--the plaintiff must prove that the ME does not apply (e.g., because he is not a ministerial employee) and that he is entitled to recovery under Title VII/ADA/whatever. This makes it akin to what a plaintiff has to do to show that the defendant is a statutory employer or that she is an employee protected by the statute (as opposed to an unprotected independent contractor).

But how we label it (affirmative defense or otherwise) does not matter. What matters is the effect of the ME, which is to limit the scope of substantive rights and duties in the real world. The ME means that a ministerial employee has no right not to be discriminated against by a Church; it means a Church has no duty not to discriminate against ministers (however defined). Put it differently: The ME means that Title VII does not "reach" (or regulate the conduct of) churches with respect to employment decisions as to ministerial employees (however defined). No matter how framed, this is a merits issue--the scope of substantive law and who/what is regulated by that substantive law and who/what can be subject to liability. It has nothing to do with subject matter jurisdiction, which attaches because the claim seeks recovery under a provision of federal law.

Posted by: Howard Wasserman | Mar 3, 2011 6:19:26 PM

Yes, absolutely, we agree on that last point. Prof. Laycock is clear that that internal Title VII provision is not the ground for Hosanna-Tabor's defense.
And I think Arbaugh is clearly merits for the same reason: the bar is built explicitly into the statute.

I didn't mean to imply that all merits claims were affirmative defenses, but the converse: (maybe) all affirmative defenses are merits-based.

Posted by: Jim von der Heydt | Feb 28, 2011 10:38:07 PM

All very interesting points, Jim. (And yes, I did mean "defendants" when I wrote "plaintiffs" above--oops!)

If I'm getting your first point, you're suggesting that the ministerial exception might be jurisdictional, because it's not an affirmative defense (which sounds merits-based) but something that a plaintiff has the burden of overcoming. But if I'm remembering Arbaugh right, the 15-employee requirement was part of the plaintiff's claim for relief (not an affirmative defense). But the Court still said it was merits, not jurisdictional.

You know, it's funny, I had this same conversation recently with someone else--I couldn't convince them either! Maybe the law is too thin and complicated to really settle these debates!

As for Gonzalez, it's certainly an old case and who knows if it still means much. Yes, Gonzalez is fundamentally about money and property. But I'm not sure that matters. Yes, the State has more of an interest in ensuring clean property rights (and less of an interest in choosing ministers). But why would that differing state interest go to jurisdiction?

Btw, Title VII has a specific statutory provision exempting religious organizations from claims of religious discrimination. Can we agree that this is merits-based, not jurisdictional?

Posted by: Chris Lund | Feb 28, 2011 10:19:23 PM

The Gonzalez case seems a little more complicated than you say, Chris: here are some of the court's headnotes:

"2. The Roman Catholic Archbishop of Manila is a juristic person amenable to the jurisdiction of the Philippine courts for the enforcement of any legal right; and a right claimed under a will to be appointed to, and receive the income from, a chaplaincy founded by the will is a subject-matter within the jurisdiction of those courts. P. 15.

"3. The facts that the chaplaincy is a collative one and that its property was transferred to the spiritual properties of the Archbishopric, subject to ecclesiastical jurisdiction and control, affect the terms of the trust but do not deprive civil courts of jurisdiction to adjudicate legal rights arising therefrom. P. 16.

"4. In the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise. P. 16."

It looks to me from the rather narrow holding of heading 2, and from the body of the opinion (see additional quotation below) as if the court is asserting the right to enforce matters arising in property or contract. And the mysterious "otherwise" in heading 4 seems to suggest that the court will not penetrate into certain internal matters. (Admittedly, later in the opinion the court is at pains to point out that it sometimes shows the same deference to the internal decisions of civic associations that are not religions.)

Here is the short paragraph you mentioned: and you're right: but I wonder, isn't the court saying that it has jurisdiction because the case is at bottom about MONEY and CONTRACT?
"The Archbishop is a juristic person amenable to the Philippine courts for the enforcement of any legal right; and the petitioner asserts such a right. There is jurisdiction of the subject matter. For the petitioner's claim is, in substance, that he is entitled to the relief sought as the beneficiary of a trust. "

If that last sentence is doing any work at all, it's to say that jurisdiction comes from the contractual nature of the document creating the endowment of the chaplaincy. But maybe it's doing no work.

Thanks for any thoughts.

Jim vdH

Posted by: Jim von der Heydt | Feb 28, 2011 9:02:01 PM

My ignorance is showing, of course, in a big way. But it does seem to me that Howard's description of 12(b)(6) is slightly different from what the ministerial exemption is generally (though again, I haven't studied every Circuit) thought to do. Howard says a 12(b)(6) motion (and, therefore, his favored version of the ministerial exception) is an affirmative defense claiming a certain kind of constitutional immunity -- and I imagine this is true also for some of the defenses Chris mentions (Chris, did you mean 'plaintiffs' or 'defendants'? I don't see why a plaintiff would try to claim there was no jurisdiction for his own case).

But motions to dismiss under the ministerial exemption aren't, in most places, affirmative defenses: if they come under 12(b)(1), they put the burden of proof on the plaintiff, not the defendant, to prove jurisdiction against a presumption that the court should not tread into (in these cases) the church-minister relationship. So that would be yet another difference between the merits approach and the jurisdictional approach. The argument for the latter, again (and I'm not sure I agree with it), would be that the defendant religious institution should have the presumption of immunity, because it's so hard to tell when an employment dispute will cause entanglement with doctrinal issues, and, unless the plaintiff only wants damages, it's all too likely that the court will drift into choosing a church's ministers.

Chris, to your claim that my description sweeps too broadly, and applies to any constitutional defense, I think I would try to argue that your other examples involve statutes that clearly address the conduct being challenged. So dismissing the claim requires a narrowing construal of the statute itself, a process that has to be undertaken specially for every statute that arises. The ministerial exception, it is claimed, creates a doctrine that applies to ANY employment statute being applied to a church. It doesn't have to be re-created as a question of first impression in every circuit every time an employment law is passed. So it is not a narrowing of *any* particular statute, but a rule that limits the court's ability to apply *all* statutes relating to the church-minister relationship.

I'm not particularly arguing for this normatively, just describing how I read the doctrine as most of the Circuits seem to use it.

Are there constitutional defenses that match this description: they place the burden of proof on the plaintiff, and they apply ex ante, without rejiggering, to any statute of a certain type no matter how recently passed? If so, perhaps I would try to argue (without caring whether I win) that those doctrines too are subject-matter jurisdiction exemptions.

Just spitballing here. But I appreciate Howard's clarity on the fact that he sees no use for rule 12(b)(1) as long as some statute is cited, and hope Chris will renew his challenge by showing that I'm still proving too much and including some other doctrine accidentally.


So here's the big question: what does it mean that SCOTUS neither granted nor denied cert in Hosanna-Tabor today? Will it be announced next week? Does the delay imply that it's a close question?

Posted by: Jim von der Heydt | Feb 28, 2011 8:46:04 PM

What you say makes a lot of sense, Jim. But under your view, don't all constitutional defenses become subject-matter jurisdiction problems? Plaintiffs often say things like -- law X is fine, but can't apply to my speech, my religious views, my right to an abortion. But those aren't usually thought of claims disputing subject-matter jurisdiction. If constitutional defenses always go to subject-matter jurisdiction, that seems to change a lot.

By the way, the Supreme Court addressed whether church autonomy is jurisdictional or not in an old case, Gonzalez v. Roman Catholic Archbishop, 280 U.S. 1 (1929). The Court dismisses the Archbishop's subject-matter and personal jurisdiction claims in a short paragraph, but ultimately agrees with the Archbishop on the merits of the case.

Posted by: Chris Lund | Feb 28, 2011 6:29:43 PM

Normatively, that is my theory because I think the "non-frivolous" requirement for jurisdiction is a terrible part of jurisdictional doctrine. In my view, if the claim seeks relief under a provision of federal law, there is jurisdiction; everything else is merits.

Anyway, a claim can fail under 12(b)(6) for a host of reasons. One, as in Arbaugh, is where the statute by its terms does not reach some conduct. A second is where an affirmative defense protects the defendant despite what the claim-creating rule ordinarily would require. A third is where the court interprets the terms of a statute not to reach some conduct (which functionally puts us in situation #1). In all three situations, what is happening is that the claim-creating legal rule does not reach the defendant or the defendant's conduct towards the plaintiff. Stated differently, the legal right/duty sought to be enforced does not exist as law and cannot be enforced. Stated still differently, at the end of the day, this plaintiff loses because he cannot sue this defendant over this conduct.

Courts taking the merits approach to the ME usually fall into one of two camps. Some treat the First Amendment as an affirmative defense to the ADA/Title VII claim--while the church ordinarily might be liable by plain operation of the ADA, it is not here because the rights provided by the First Amendment protect it from liability. Others construe the ADA not to reach ministerial employees as against religious bodies, narrowing the statute in light of First Amendment concerns; this really is what SCOTUS did to the NLRA in Catholic Bishop, which somewhat provides the groundwork for the ME. Either way, the claims are failing on their merits, as defined above.

Posted by: Howard Wasserman | Feb 27, 2011 6:10:25 PM

Judge Posner is clearer than I expected, but I'm not sure he's right. He seems to be basing his view of the exception primarily on the no-entanglement rule, rather than the more purely hands-off view that churches should get to choose their own ministers. So that's one reason his version of the ME is less "robust" than Kalscheur's.

"The district judge made one mistake, though a harmless one. That was to dismiss the suit under Rule 12(b)(1) of the civil rules. Petruska v. Gannon University, supra, 462 F.3d at 302-03. That rule is intended for cases that are not within the jurisdiction of the district court. Now it is true and important that federal courts, as we noted in the Tomic case, do not have jurisdiction to decide ecclesiastical controversies. 442 F.3d at 1037-38. A federal court could not entertain a suit to restore the Latin mass or to declare Christian Science a heresy. But it does have jurisdiction to decide cases brought to enforce the Fair Labor Standards Act. The fact that enforcement of the Act in a particular case would entangle the court in an ecclesiastical controversy would be a compelling reason to dismiss that case, but not a reason founded on a lack of jurisdiction over a plaintiff's claim that, as in this case, is based on the Fair Labor Standards Act rather than on anything to do with religion. Jurisdiction is determined by what the plaintiff claims rather than by what may come into the litigation by way of defense. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. 1, 16, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983); Primax Recoveries, Inc. v. Sevilla, 324 F.3d 544, 549 (7th Cir.2003)." (Schleicher v. Salvation Army)

I would note that that last sentence assumes what it is trying to argue, since under a 12(b)(1) motion the defendant can indeed bring facts into consideration, since (unlike in a 12(b)(6) motion) the court is neither limited to the pleadings nor required to construe facts in favor of the plaintiff. That's a second reason that the jurisdictional version of the bar is, as was said above, "more robust" than the merits-based approach.

I notice that here Judge Posner suggests subject-matter jurisdiction could be a bar to a case about an ecclesiastical controversy, but I assume he is referring there to a hypothetical case without a statutory basis. Is the theory, then, that no non-frivolous claim brought with some statutory basis can be dismissed for lack of subject-matter jurisdiction?

The Petruska court was more conclusory than this, but I do find Judge Posner's explanation helpful. I think the technical answer to it would be to say that a case brought by a minister against a church doesn't, properly speaking, "arise" at all under the statute, since the Constitution forbids it even though the statute would seem to allow it. I still think that view is a better fit with what most Circuits are doing; but I suppose mostly I think it would be good if cert were granted.

Jim vdH

Posted by: Jim von der Heydt | Feb 27, 2011 4:51:52 PM

Not having read your arguments, or even studied civil procedure yet, I'm hesitant to say this, but I think the subject-matter jurisdiction approach makes an awful lot of sense.

My sense was that 12(b)(6) motions for dismissal -- failure to state a claim on the merits -- arose when there was an argument that the statute, on its own terms, did not apply to the facts. So the Arbaugh example is perfect for that: the statute requires 15 employees, defendant doesn't have 15 employees, case dismissed. It's just a matter of applying the statute. As Kalscheur puts it, "A court has the power to hear such a case, but it lacks power under the statute to provide the plaintiff with any relief."

But the ministerial exception is different, because nowhere within the four corners of the statute or its black-letter context will you find a reason that it shouldn't apply to the facts at hand. This is true whether it's Title VII, the ADEA, the ADA, or what have you. You can bring a PERFECTLY well-formed claim of discrimination against a minister to federal court, and the court will say, You've read the statute perfectly and understood what it provides. The problem isn't your claim; it's that we can't hear your case at all. It's nothing about this statute in particular; and it's not you; it's us. The subject matter here -- the relation between a church and its ministerial employee -- is off limits for us. It would be unconstitutional for us to enforce this law as written with regard to this subject matter.

I imagine the answer to this question might be confusing; but I'm not content with the gesture toward sec. 1331. What does 'subject matter' mean, if it doesn't describe a bar just such as this: one that isn't visible from the statute, from its place in the Code generally, or from its application to the facts about the alleged wrongdoing? Can you give me an example of a 12(b)(1) subject-matter jurisdiction problem that might illustrate what one looks like, if this isn't it?

To put it another way: it seems to me as if 12(b)(6) should apply when a statute is self-limiting, such as in the case when a church discriminates on the basis of religion. Title VII says explicitly that this is allowed, so the statute bars the claim: no relief can be granted. It's not a jurisdictional issue. But 12(b)(1) seems necessary when there is no failure to fit into the statutory scheme, but rather a bar to judicial action arising Constitutionally from the nature of the parties -- in other words, from the subject matter, not the legal dispute proper.

Can you two set me straight, so I can see what these three Circuits that consider the question as a merits one are thinking? I'll go read Schleicher to see if I can see the rationale there, but I don't recall that it's clear.

Jim vdH

Posted by: Jim von der Heydt | Feb 27, 2011 4:25:24 PM

P.S. Marc DeGirolami cross-posted this initially on Mirror of Justice. You may interested in the comments there--some of which, yes, are mine... =)

Here's the link: http://mirrorofjustice.blogs.com/mirrorofjustice/2011/02/church-autonomy-on-tap.html#comments

Posted by: Chris Lund | Feb 27, 2011 11:27:03 AM

Hate to be joining the party late, but I'm very interested in all this. Howard, I'd love to see an updated version of your piece. I too am working on an article about the ministerial exception, which also may be soon preempted.

Jim, on the merits/jurisdictional nature of the ME, the Supreme Court's decided cases really helped convince me that the ME is merits-based, like Howard thinks. Consider the decision in Arbaugh v. Y & H Corp., 546 U.S. 500 (2006). Title VII, by its own terms, only applies to employers with 15 or more employees. In Arbaugh, the Court held that this 15-employee requirement did not go to subject-matter jurisdiction. The Court was unanimous. After reading it, I came away strongly believing Howard's view.

Posted by: Chris Lund | Feb 27, 2011 11:24:31 AM


There is subject matter jurisdiction under § 1331--the claims all arise under federal law (Title VII, the ADA, whatever), in the sense of being "made possible by" or brought under those provisions of federal law. The claims all fail because the First Amendment (or First Amendment values) limits the reach of federal law. It limits what persons and conduct are regulated by or protected by those statutes--on "who can sue whom for what conduct and what remedy." As I have been saying for several years(and the Court seemed to agree last term), this is always a purely merits question.

I started writing a Response to Greg's article in which he reached the opposite conclusion. But the piece quickly became bigger than an essay, so I have been working on it off and on for about two years now. Depending on what SCOTUS does, I either am going to be preempted or I am going to have a big target to write about next year.

Posted by: Howard Wasserman | Feb 26, 2011 4:15:24 PM

Wow, my reading of the cases suggested the numbers broke the other way; but then I'm just learning Westlaw.

I'll revisit the Kalscheur; but to me it makes much more sense to call the disposition a dismissal for lack of subject-matter jurisdiction, since the outcome of the ministerial exception is the same no matter how egregious the discrimination is. Also, it's the same no matter what statute is involved, end even if the dispute isn't over hiring and firing but something else. So it's the same regardless of the merits and regardless of the statute. I'm not sure what would count better as 'subject matter' in the relevant sense, if not an allegation of employer misconduct that can't be litigated because it implicates church-state relations... What's a better example of subject-matter jurisdiction under 12b1? (sorry to be ignorant).


Posted by: Jim von der Heydt | Feb 26, 2011 9:46:39 AM

Nope--it's entirely a limitation on the merits; the Sixth Circuit has been on (what I consider) the wrong side of that circuit split. The exemption involves a limitation on the scope/reach of substantive law (the ADA) and the persons and conduct regulated by that law. That is (or should be) an issue of the merits of the claim.

Posted by: Howard Wasserman | Feb 26, 2011 8:49:47 AM

The view that the exception limits subject-matter jurisdiction (and therefore calls for a 12b1 rather than 12b6 motion to dismiss) is predominant, and appeals courts usually gently correct trial courts that have treated it as failure to state a claim.
And yes, it makes the exception much more robust. For a very good theoretical discussion, see Kalscheur, Civil Procedure and the Establishment Clause, 17 Wm. & Mary Bill Rts. J. 43 (2008). I don't have the subtitle to hand, but the whole thing is about the ministerial exception.


Posted by: Jim von der Heydt | Feb 26, 2011 7:54:41 AM

Thanks, Howard. On that specific issue, what is your sense of the best way to characterize the exemption? I would guess that interpreting it as a jurisdictional limitation makes it more powerful and absolute. Does that seem right to you?

Posted by: Marc DeGirolami | Feb 26, 2011 6:53:09 AM

Although the question does not appear to be presented in either case,both courts (particularly the Sixth Circuit) appear to have treated the ministerial exemption (however broad) as a limitation on the court's adjudicative jurisdiction, rather than a limits on the merits of the claim. This is the subject of its own circuit split (as the Sixth Circuit noted in Hosanna-Tabor). And the Court arguably will have to clarify this as part of any decision on the scope of the exemption.

Posted by: Howard Wasserman | Feb 26, 2011 6:43:47 AM

I wrote a long reply to this, with many thoughts about the issue, but had a connection problem at the confirmation screen and a clipboard problem and now it's gone.

So I'll just answer that I don't know whether they preserved the issue. The 'primary duties' test is so vague that I don't think they saw any need to argue for a different test: easier just to define 'primary' or 'duty' your own way. The circuits that have focused on the ROLE, or its symbolism, rather than the DUTIES, have generally been coy about the fact that they were doing so. So there's no alternative test to argue for, and on the district level the church school seems to have won easily. Nonetheless the circuit court said that the district court's application of law to facts was clearly erroneous.

I will retype the fact that a classmate of mine made a great point. A missionary overseas might spend 98% of his time digging wells and latrines, and only 2% preaching the faith. Does that make her a non-ministerial employee? Clearly not. But how to bring evidence of a spiritual tenor for the whole workday, especially when the person who was in a position to supply it -- the plaintiff -- has every incentive to clam up?

The Sixth Circuit suggests that a good proxy, for schoolteachers, might be to look for evidence of a consistent pattern of religious themes incorporated into secular subjects. But by that standard I'm a ministerial employee in a Jewish school, despite being a pretty good Episcopalian most of the time: we talk about halacha and Zionism in our analyses of literature, and I enforce the wearing of kippot and tzitzit. I might be more ministerial than an associate rector downtown, in charge of fundraising, soup kitchen, and physical plant....

I find the whole issue particularly poignant in the Roman Catholic context, where women cannot be ordained and might go into sectarian-school teaching precisely BECAUSE it's ministerial. Then they're discriminated against and, in order to get a day in court, have to argue that it wasn't ministerial at all. I don't see any way the court can fix this, though; it's the whole point of the exception. Call it a First Amendment spandrel, I guess.

Jim vdH

Posted by: Jim von der Heydt | Feb 25, 2011 2:21:57 PM

Jim, I agree (though we'll see what the Court decides if it takes the case), but I'm not sure if you are responding to my question or not. By "preservation of the issue," I meant that there's an argument that the church didn't preserve its challenge to the primary duties interpretation of the ME.

Posted by: Marc DeGirolami | Feb 25, 2011 1:37:20 PM

I don't see anyone arguing that ministers shouldn't be excepted from antidiscrimination laws; the issue is just how broadly should 'minister' be defined. Can you defrock a bishop because she's too old, or too female? Yes. A janitor? No. It's in between where the action is.

But maybe I'm missing an angle.

Posted by: Jim von der Heydt | Feb 25, 2011 1:02:43 PM

Jim, thanks for the terrific analysis. I hope you're right (that the Court takes it). Any thoughts on the question of preservation of the issue?

Posted by: Marc DeGirolami | Feb 25, 2011 12:40:12 PM

My Legal Writing class turned in a working draft of a Sixth Circuit district-court motion for a case almost on all fours with Hosanna-Tabor last night. My first dose of trying to make an argument in a turbulent area. I think Prof. Laycock's Petition is very persuasive and that the Court needs to step in. There's a very recent Fourth Circuit case called Clapper that the Sixth Circuit strives mightily to distinguish, and it's unclear how much of the rule of that case it is actually using.

The substantive question seems to be, is an employee (in these cases, grade-school teachers in parochial schools) ministerial when she spends some large fraction of her time doing religious things? Or, when the institution is relying on her to spread or inculcate its faith? The first is easily dealt with, factually (religion class only 40 minutes a day? Not enough, says the court); the second not so much. Worse, the facts informing the second question come almost entirely from the defendant institution (and may take the form of rhetoric); the facts informing the first question come from the plaintiff (and may be tilted: the Hosanna-Tabor plaintiff "could only recall two occasions" in ten years of teaching in which she had incorporated religion into the secular curriculum of her fourth-grade class. Does perhaps THIS figurine of a shepherd from your math shelf perhaps refresh your memory?).

In the end the Sixth Circuit, in reversing the trial court, implied that the analysis of the workday was the decisive test, but then it added that the employee was non-ministerial "not only because she taught secular material with secular textbooks, but also" because the school was not relying on her to make good Lutherans. A concurrence adds that this latter factor was what actually "tipped the scale." So what is the rule? Danged if my classmates and I could figure it out.

The extra twist, from a bird's-eye view,, in this case, was that the plaintiff was held out as a commissioned "called" minister in her teaching job. Since in other circuits a press secretary has been found ministerial, the outcome in Hosanna-Tabor is particularly confusing on a superficial reading.

I think the ruling may have been right but I think the Circuit should not have denied an en banc rehearing. The opinion is difficult to reconcile internally, and at one point also silently omits the word "teaching" from a widely used definition of "ministerial employee," even though it quoted it accurately two pages before.

Heady stuff for a class of 1L's!

I'm giving 3 to 2 that cert is granted, although I should add that the plaintiff's pleading is also outstanding.

Jim von der Heydt

Posted by: Jim von der Heydt | Feb 25, 2011 11:42:47 AM

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