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Monday, April 04, 2011

Characterizing the ministerial exemption, again

I know I keep talking about the jurisdiction/merits question surrounding the minnisterial exemption. But there has been so much discussion of it, here and elsewhere, that I wanted to weigh in further. I am particularly struck by the points that Chris made earlier in defense (however tentative) of the exemption, because they capture why there is merits/jurisdiction confusion and why I am convinced that, assuming the exemption should exist and whatever its scope (about which no one seems to be sure), it is unquestionably a matter of substantive federal law and not adjudicative jurisdiction.

At bottom, the exemption comes down to not wanting judicial inquiry into, or control over, church doctrine and how churches function in the creation and transmission of that doctrine. The instinct to call this jurisdictional (in the sense of judicial subject-matter jurisdiction) comes from our discussion of all of this as discomfort with judicial inquiries/remedies, etc. But that is the rhetorical error. In fact, it really is a discomfort with secular law inquiring into matters of church doctrine, teaching, etc. We think in judicial terms only because that is where application of secular legal rules occurs. But, taken seriously, we are just as uncomfortable with a body other than a court (say, an executive agency or a legislative committee) making the same inquiries. The point is that we (at least those who support the exemption) do not want the legal inquiry into church practices.

The issue as to the ministerial exemption, I would argue, is one of legislative or prescriptive jurisdiction--the authority of secular legal rulemakers (in this case Congress) to enact rules that reach and regulate churches and doctrinal matters such as ministerial hiring. The exemption represents a First Amendment limitation on the authority of Congress to enact employment-discrimination laws (Title VII, ADA, etc.), where those laws regulate certain church practices. It is a limit, in other words, on the scope of the substantive law that Congress has enacted or can enact. The debate  over the scope of the exemption is a debate over what conduct federal employment discrimination law reaches. That, the Court insisted just last term, is the same as asking what conduct some law prohibits, which is a merits question.

To determine the scope of the exemption (the debate which Rick, Chris, Marci Hamliton, Caroline Mala Corbin, et al., are engaged) is to determine the scope of Title VII, the ADA, ADEA, etc; the broader the First Amendment-imposed exemption, the narrower the protection of employment-discrimination law, and vice versa. If the exemption is absolute, then federal law provides no protection; if the exemption is narrowedm federal law provides some protection. But the question is always about the scope and reach of existing federal law. The effect on the judiciary that Chris describes is incidental to the limit on the scope of substantive law. Courts cannot make the inquiry because there is no exisinting secular law on which to make the inquiry or against which to measure the conduct of the churches.

Posted by Howard Wasserman on April 4, 2011 at 02:47 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


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