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Thursday, April 07, 2011

The Ministerial Exception, Doctrinally Speaking

Caroline Corbin over at CoOp has another post on the ministerial exception, where she suggests that it is incompatible with existing Religion Clause doctrine.  I earlier tried to offer a bit about the policy reasons potentially supporting a ministerial exception, but I realize I should add a word about precedent in response to Caroline’s post.  Again, I admire Caroline a lot, but I see things differently than she does.  I tend to see the ministerial exception as easily compatible with the Court’s precedents.  More below for the daring.

Although the lower federal courts have said it exists, the Supreme Court has never had a ministerial exception case.  If you wanted, you could read Employment Division v. Smith as destroying the ministerial exception.  (As Caroline does.)  But there are reasons to not take that approach.

First off, Smith itself explicitly distinguishes the line of church autonomy cases from which the ministerial exception comes—that’s the language in Smith about how the government still cannot “lend its power to one or the other side in controversies over religious authority or dogma.”  (Lawsuits about who gets to run the church are surely controversies over religious authority—there are two cases, Gonzalez and Milivojevich, actually about this point.)

But even if this passage wasn’t there, I’d think that Smith’s natural scope might not include the church autonomy claims anyway.  Smith overruled Sherbert and Yoder and overruled the compelling-interest test.  But none of the church autonomy cases during this period—Jones v. Wolf, Catholic Bishop, Milivojevich, Maryland and Virginia Eldership, and Mary Elizabeth Blue Hull—none of them refer at all to the compelling interest test or even cite Sherbert or Yoder.  (There’s one exception—an offhand citation to Yoder in Catholic Bishop—but it’s trifling.)  The church autonomy cases are simply just different than the conscientious objection cases.  There are also Establishment Clause rationales for church autonomy, but I don’t want to bore you.

I’m not saying I win this debate with Caroline.  I don’t think I do.  I’d be content with a draw here; I think that there’s room for the Court to go in either direction.  And so whatever direction the Court ultimately goes, it won’t be because of precedent.  At the bottom of it, I think Hosanna-Tabor will win if it can convince the court that there is a real religious liberty problem here and it will lose if it can’t.

P.S.  Please forgive us (or me) for all these posts on the ministerial exception.  It’s an exciting time for us church and state people.  We’ve had some real duds in the religious liberty world recently—a case on standing, a case on sovereign immunity and RLUIPA, boring stuff.  They don’t let us out to play very often—so when they finally do, we get really excited.

Posted by Chris Lund on April 7, 2011 at 04:12 PM | Permalink


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Thanks, Caroline, for the response. I appreciate the engagement, and also the good challenges your readings and interpretations pose.

As to the last point, I still don't think I see it. The language you quote relates to a state's decision not to adopt the Milivojevich approach. The Court held that it was constitutionally permissible for a state to go with neutral principles. JJ. Rehnquist and Stevens would have adopted an even more stringent approach (which is perhaps your approach?), as reflected in the dissent in Milivojevich that there's absolutely no difference between a religious institution and any other private voluntary association.

But under neutral principles, once a state has made that decision, it still falls to the religious entity to decide how to structure its governance issues. Courts don't have to defer to higher authorities provided that they can rely on institutional documents without delving into religious understandings. Knowing that a state has adopted that sort of approach will influence how the religious organization manages its affairs -- the language it uses in its papers, the clauses, and so on, reflecting the intent of its members. The ball is still well in the court of the religious institutions to retain or cede its autonomy on these matters, no? Here's the portion of the case I was thinking about:

"[T]he neutral-principles analysis shares the peculiar genius of private-law systems in general-flexibility in ordering private rights and obligations to reflect the intentions of the parties. Through appropriate reversionary clauses and trust provisions, religious societies can specify what is to happen to church property in the event of a particular contingency, or what religious body will determine the ownership in the event of a schism or doctrinal controversy. In this manner, a religious organization can ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members."

Thanks again for shooting this around.

Posted by: Marc DeGirolami | Apr 13, 2011 2:54:46 PM

Hi there!

What a great discussion! I wish I had more time to comment on all the interesting points.

The fact that a ministerial exemption grounded in expressive association would be more narrow is a benefit, as far as I am concerned. It is much too absolute now. I do not think churches, schools, hospitals, etc., should be able to discriminate based on race, sex, age, disability, among other things, without at least justifying that discrimination. After all, it is not just religious entities whose interests are at stake, but religious people’s calling and livelihood. In other words, the govt does have a compelling state interest – protecting it citizens from discrimination.

Marc – I think that is a fair description of my take on Jones v. Wolf. I do read it that way, and I think Employment Division v. Smith, and the switch to greater neutrality that it embodies, should influence our reading of it. Also, Jones v. Wolf itself contemplates that secular courts would examine religious instruments, although always with the caveat that they could not interpret religious doctrine. I don’t see anything in the opinion that indicates that it is up to the religious entities whether the courts apply a neutral principles of law approach. On the contrary, the decision is left to the courts. “We therefore hold that a State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.”

Establishment guy – hi! I have posted my third installment on Concurring Opinions. It doesn’t answer your question entirely. For that you’d need to read my article, which explains in detail why a court’s finding of pretext will never turn on its own personal assessment of a minister’s spirituality but instead on the type of circumstantial evidence it deals with all the time. Also, it is worth knowing that even with secular employers the courts are highly deferential when it comes to subjective qualifications.

Posted by: Caroline Mala Corbin | Apr 13, 2011 1:45:12 PM

Wasn't sure whether to comment on Prof. Corbin's post, here, or over at Mirror of Justice, or wherever else. I'm tentatively persuaded by Thomas Berg's MOJ post today. He says that Establishment is key, and that it looms larger in "pretext" analysis than Prof. Corbin allows. I think he's right.

Prof. Corbin agrees that Establishment concerns are triggered if/when the court would need to resolve religious disputes, such as when the choir director fired for choices in religious music. But, she says, most cases won't involve such disputes, so they can be resolved on neutral principles.

Prof. Corbin, if you are reading, could you perhaps address, here or in your next posts, the pretext issue that Berg raises? That is, how does a secular court address whether a religiously-ground excuse is a pretxt for the discrimination?

I agree that neutral rules can apply, and the church-property cases are a good example. If the dispute can be resolved by examining title chains and documents, it's fair game for resolution. But if the grant (by will, trust, contract, whatever) said "as long as the church remains devoted to true Lutheran doctrine and does not employ dissenters as ministers," the Establishment bar arises.

With employment law, the problem is that the pretext analysis causes problems in perhaps 90% of cases, not 5%. I just can't see how pretext analysis is not entangling, unless there's a smoking gun document admitting that the religious reason is not sincerely held.

Posted by: Establishment guy | Apr 12, 2011 11:22:29 AM

Hey, Caroline! It's been great to exchange posts with you. I might do another one; it will probably depend mostly on time. And I just looked at your recent Iowa piece on nonbelievers now up on SSRN--super congrats on that!

As for Jones v. Wolf, I think Marc has it right. (Although he put it clearer and more precisely than I will, that won't stop me from going on further.) I too think the parallels between Jones v. Wolf and Employment Division v. Smith are only skin deep. "Neutral principles of law" is not against church autonomy; it is a way of facilitating church autonomy in property disputes by empowering churches and congregations to plan using the ordinary means of contract and property law. I'm not thrilled with how it has worked in practice--I think "neutral principles" have been applied with a heavy congregational finger on the scale. But that's neither here nor there.

Conceptually speaking, I think there's an important difference between property disputes and clergy disputes. The "hands-off" principle can only make limited sense in the context of property disputes--at the end of the day, the state has to resolve property disputes or else we'll end up in a Hobbesian-like state of nature where who owns a church depends on who can lock everyone else out first. The state has to intervene in property disputes. The question is how to do it most fairly.

But it's different with clergy disputes. The government's interest in intervening in internal disputes between churches and their ministers seems more attenuated to me. The courts in Gonzalez and Milivojevich only thought about getting involved because property was on the line. When church property is not involved, I think the church's right over their clergy should be absolute.

Posted by: Chris Lund | Apr 8, 2011 4:45:18 PM

Hi, Caroline -- hope you are well.

Are you saying that the "neutral principles" approach of Jones v. Wolf ought to be read as a kind of implicit endorsement, before the fact, of Emp. v. Smith's formal equality for purposes of deciding all issues which “involve[] no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith"?

If so, I don't think I agree. I guess I wonder how you respond to the claims of Perry Dane (the "omalous" piece) and Paul Horwitz (the first amendment institutions piece) that the idea of neutral principles in Wolf relates to the Court's willingness to permit religious institutions, should they wish it, to use secular language to organize their institutional documents as they see fit. Should they use such language, manifesting an intent to be bound by "secular" judicial review, then they are permitted to be so bound. The neutral principles approach was a standard derived from a tool that the Court gave to religious institutions to retain their autonomy. It was not an approach designed to wipe away church autonomy.

Posted by: Marc DeGirolami | Apr 8, 2011 2:43:45 PM

Hi Chris!

So I am trying to finish up my third ministerial exception post, but I thought I’d chime in with a couple of points.

First, the most recent of the church property cases –Jones v. Wolf – does not really support the church autonomy doctrine. Instead of requiring the courts to defer to the church hierarchy, the Supreme Court held that courts may apply “neutral principles of law” to the church’s property dispute in the same way it would apply them to any other organization’s property dispute. In other words, it can apply normal property and trust law such as looking at deeds and corporate charters in resolving disputes, as long as it “involves no consideration of doctrinal matters, whether the ritual and liturgy of worship or the tenets of faith.” Given this, there is no reason why a court should not be able to apply normal discrimination law to discrimination claims, as long as it did not delve into “the ritual and liturgy of worship or the tenets of faith.”

Second, you assume that adjudicating a discrimination case would require the courts to become unconstitutionally engaged with religious doctrine. Here we disagree, because I think that they can be resolved without any of the entanglement with religious doctrine that worried the Jones v. Wolf Court.

Thanks for reading my post! Are you doing another?


Posted by: Caroline Mala Corbin | Apr 8, 2011 2:02:00 PM

On the issue of movement to associational rights, for a very good statement of dissatisfaction with current association doctrine, and especially the issue of "expressive associations," this piece by John Inazu is really good: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589045


Posted by: Marc DeGirolami | Apr 8, 2011 9:24:18 AM

I think it matters, Hillel. Moving to expressive association seems to lead to a narrow kind of ministerial exception--one tied to conscience. Dale might give the Catholic Church protection from ministers bringing claims of sex discrimination, but (as you note) it seems unlikely to protect them from any other types of claims. (I present some reasons to fear such a narrow ministerial exception in an earlier post.)

But if we do end up linking the ministerial exception to free association, I think that may be okay. But we might need to go outside the Dale box. Instead of Dale, maybe we should begin thinking about the political association/voting cases, like Democratic Party of United States v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981) and California Democratic Party v. Jones, 530 U.S. 567 (2000), which I know almost nothing about. It's hard to imagine that a court would issue an injunction requiring a particular political party to run and support a particular candidate. Maybe that's analogy worth pursuing.

Posted by: Chris Lund | Apr 8, 2011 9:16:14 AM


Does it matter?

Posted by: Hillel Levin | Apr 8, 2011 8:40:10 AM

Tom Berg also has a response to Caroline's post up at "Mirror of Justice":


With respect to the expressive-association point, Hillel, you are right, I think, that there are resources in the Dale, etc., precedents for arguing that the relationship between a religious association and its ministers should not be too closely structured by anti-discrimination law. And yet, as Tom writes, it *does* seem like, given that we have two "religion clauses" in the First Amendment, they are a more natural source of the right of a religious community to select its own religious teachers, leaders, and ministers.

Posted by: Rick Garnett | Apr 8, 2011 8:10:05 AM


As you know, I'm not really a religion clause person, so I could be WAY off here in my dabbling. Please correct me if I'm wrong.

I wonder whether the ministerial exception, today, wouldn't be more at home in the associational rights box. If the boy scouts get to exclude gay assistant scoutmasters because the scouts are an expressive association, then shouldn't churches be able to choose their ministers as they see fit?

This approach could at once broaden and narrow the ministerial exception. On the one hand, going back to our back-and-forth comments to your last post, the associational-rights-based ministerial exception perhaps SHOULD in some cases apply to janitors, and thus broaden it. That is, if a church believes that women should not have jobs outside of the home, then wouldn't having a female janitor interfere with that message?

On the other hand, focusing on associational rights might narrow the ministerial exception. Dale did not stand for the proposition that an expressive organization always gets to interpret its own message and discriminate accordingly. So courts would have to inquire into the church's dogma, as the court in Dale did to a degree, for indicia that the message is a bona fide element of the institution's message. This might really raise some establishment clause/free exercise problems, as you have noted.

Finally, even if one were to reject the ministerial exception as a pure associational rights case, at the very least this could make for a hybrid-type case of the sort identified by the majority in Smith that could trigger strict scrutiny (like Yoder). I wonder what the implications of that would be.

Posted by: Hillel Y. Levin | Apr 7, 2011 9:05:23 PM

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