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Sunday, April 03, 2011

Marci Hamilton on the "ministerial exception"

Readers familiar with Prof. Hamilton's work and commentary will not be surprised by this piece, at Patheos, in which she takes a dim and disapproving view of the "ministerial exception."  I suggested in an earlier post (and also at Mirror of Justice)  this "exception" is, in my view, a crucial -- and, indeed, perhaps the most obvious -- implication of our commitment to religious-freedom-under-law-and-through-church-state-separation-correctly-understood.  So, Marci and I disagree.

A few quick thoughts:  First, Prof. Hamilton allows that "[r]eligious organizations obviously should have a right to choose their clergy according to their own lights" but then goes on to indicate disagreement with the result in a relatively recent Third Circuit decision called Petruska, in which the plaintiff was a "chaplain" at a religious university.  The "right" she concedes, then, appears to be a very narrow one.  Obviously, there will be difficult lines to draw -- and I would draw them, it appears, in different places than Marci would -- but it is not clear to me what would justify drawing it so as to protect "clergy"-hiring, but not the hiring of a chaplain at a Catholic university.

Second, with respect to her statement, near the end of the piece, that "[i]f the church school wins this case . . . I think that Congress and the state legislatures owe it to potential employees of religious institutions to warn them of their lack of protection from invidious discrimination."  Now, as it happens, it strikes me as a good idea for religious institutions to incorporate into their employment contracts and related materials, to the extent possible, clear indications regarding the religious nature (if any) of their employees' duties and positions.  Prof. Hamilton's suggestion, though, that they should be required to "warn" employees is curious, to me.  We don't usually require people, as a condition of enjoying and exercising constitutional rights, to "warn" others that they have constitutional rights which they plan to exercise; the "ministerial exception" reflects the First Amendment right of religious communities to be religious communities, and to not have secular courts interfere in religious decisions and relationships.

Finally, while it is certainly true that religious institutions (like all others) can and do behave badly (who would deny it?), it is not the case that there is necessarily anything "insidious" about a religious institution making decisions about religious doctrine and positions using criteria that we do not think governments and non-religious employers should not use.  That said, even if a religious institution acts badly in selecting or terminating a ministerial employee -- say, by doing so for reasons that actually have nothing to do with religion and reflect simply petty spite, or worse -- it is still the case, in my view, that a secular government committed to church-state separation will recognize that it cannot tell a religious community -- even a bad-acting one -- who will be its clergy, ministers, or teachers.

Posted by Rick Garnett on April 3, 2011 at 02:42 PM in Rick Garnett | Permalink


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How can anything a religious organization does in furtherance of its religious mission be non-religious? When deciding whether to fire someone or not, the question they were asking was -- "Can we best accomplish our religious goals and reflect our religious values through action by firing this person or by not firing them?" Religious organizations, when they act as an organization, are saying that those actions that they do are the ones that their religious values lead them to.

The ADA is a statute. The right to free exercise of religion is Constitutional. It's very clear who wins.

Posted by: David Schwartz | Apr 7, 2011 8:22:14 AM

So a damages remedy without an obligation to reinstate would be OK with you, generally speaking, where the motivation for the employment decision was not religious?

It would seem to be a pretty hollow protection that allowed disgruntled employees to take a church to the bank but not get their jobs back. Prof. Garnett can correct or clarify if I'm off base, but my impression has been that courts don't really look much at remedies: if the church makes a colorable claim that the job is ministerial, a court lacks jurisdiction to continue adjudicating the dispute. So on Prof. McKenna's contract question, a court would not be in a position to interpret the contract to determine the presence or absence of a breach (and thus the propriety of any remedy) unless it first determined that the position was non-ministerial and the contract could be interpreted without any recourse to religious principles. Courts have made such findings, but they tend to be rare.

Posted by: Titus | Apr 5, 2011 7:50:36 PM

Concurring Opinions Blog is blogging on the topic as well. The first part of the discussion can be found here:


As to the "warn" part, if we are going to have a major exception to civil rights laws, I think it not just your average case where the negative effects of liberty (such as, if you marry, you are forewarned that it might not go well) come with the package. In many cases, including perhaps the case in this very lawsuit, the average person might not realize what they are agreeing too.

I think there can be much debate over the proper line in this area, especially along the margins. If sexual harassment law violates a church's faith (they think disputes should only go through church channels, no involvement with a state body, including court appeals) or whatever, the proper rule for "teachers" etc. are not totally clear.

Anyway, I look forward to the second part of the CO blogging and this sounds like a good change of pace 1A case. One where the usual suspects might find themselves somewhat unsure about. Hamilton aside, perhaps!

Posted by: Joe | Apr 4, 2011 9:06:18 AM

So a damages remedy without an obligation to reinstate would be OK with you, generally speaking, where the motivation for the employment decision was not religious? (Obviously, that last issue - whether the motivation was religious, won't always be straightforward).

Posted by: Mark McKenna | Apr 3, 2011 3:19:05 PM

Mark, there is, actually, reason to think that the decision to terminate the teacher's "call" was, from the church's perspective, connected with some religious teachings but, for my (our) purposes, we can put this matter aside. I don't think it matters; the ministerial-exception is (in my view) not about the motives or reasons for an employment decision, it is about the nature of the position, and of the relationship between the employer and the employee. I don't think we need to say, for purposes of this case, that all teachers at all religious schools are covered by the exception. Here, though, the nature of the school, and of the teacher's position, bring it within any appropriate definition of the exception's scope. You are right to focus on the "remedy" side of the problem, as well as the "what's the wrong?" side. The former focuses attention on the problems that, it seems to me, would arise if the secular authorities required a religious institution to hire, or re-hire, a ministerial employee that the institution (for whatever reason) did not think was appropriate for the ministerial role.

Posted by: Rick Garnett | Apr 3, 2011 3:16:03 PM

Rick -

If I understand the facts of the case correctly, the decision to refuse to allow the teacher back to work seems not have have been at all about religious doctrine. It's not, for example, as if she was removed because the school disapproved of something she said in class, or because of a position she took on some issue. So it seems to me that this is just a claim that, as an absolute matter, religious institutions are not subject to the ADA insofar as teachers are concerned. If that's a correct statement of your view, I wonder whether you think the teacher should be able to assert a contract claim against a religious school if (s)he is fired in violation of the contract. If so, is it just the fact that the nature of the remedy the teacher is seeking under the ADA (reinstatement) that troubles you?

Posted by: Mark McKenna | Apr 3, 2011 3:04:52 PM

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