Hosanna-Tabor and "Act III of the Ministerial Exception"

Next week, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the first case in the High Court to directly raise the issue of the "ministerial exception."  Most law and religion scholars agree that this promises to be one of the most important church-state cases in recent years.  I am a strong supporter of the ministerial exception, because I believe it raises, in a fairly direct way, fundamental questions about the independence of churches that lie at the heart of what we might call the Western church-state settlement.  At its core, I believe this ought to be an easy case.  But beyond the big picture, a victory for the church raises many difficult questions about the limits of the civil rights laws, and I think some critics of the ministerial exception, whether in general or as applied to this and other cases, have raised superb questions: I would include Caroline Mala Corbin and Marty Lederman among those critics.  In a sense, the deep question that Hosanna-Tabor raises is just how imperial the reach of the state is, and whether we should think of law as something with an absolute default reach--or whether, as Rick and I have each argued in our different ways, there are limits to the jurisdiction of the state where "the church" is concerned, limits that form a deep part of the structure of Western constitutionalism.

I'm happy to say that as part of the second Annual Law and Religion Roundtable, which was held at Northwestern Law School this summer, several people presented short pieces on Hosanna-Tabor, and these pieces will be published shortly in the Northwestern University Law Review Colloquy.  I wrote one of those pieces, Act III of the Ministerial Exception, and I've posted a distinctly rough (typos and all) draft on SSRN; you can find it here.  Quite coincidentally, what I write in this piece has something to do with an important observation made by Marci Hamilton at the conference: that in discussing church-state issues, and particularly issues of church autonomy, it is not enough to focus on the "law"; one must also give thought to the moral obligations of churches.  I agree wholeheartedly with her, although Hamilton and I differ on church autonomy itself.  This piece is an effort to do just that.  I argue in favor of the ministerial exception, but I also argue that allocating authority to regulate or not regulate employment relationships with ministerial employees is only the beginning of the conversation, not the end: even if the ministerial exception is reaffirmed, it is important for those of us who believe in the sovereignty of the church to think seriously about the role of both internal debate and external criticism in encouraging churches to use their autonomy in a way that is sound, responsible, and consistent with both religious and public values.  (Although, and unlike Hamilton, I would stress "religious values" more than "public values," or at least argue that our "public values" must include respect for religious values.)  Hence the title.  Chekhov argued that a gun that appears in a play in Act I will surely go off in Act III; I argue in the piece that too much legal thinking ends with Act II--the point at which a court decides where authority to act lies--and fails to consider what happens in Act III.  

Enjoy.  The abstract follows.

 On October 5, 2011, the Supreme Court will hear oral arguments in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a case in which the Court will consider the existence and nature of the so-called "ministerial exception": the judicial doctrine that gives churches legal immunity in employment discrimination cases brought by "ministerial" employees. The case promises to be one of the more important church-state decisions in recent years. In conjunction with the second Annual Law and Religion Roundtable, the Northwestern University Law Review Colloquy will be publishing several pieces on the case. 

In this contribution to the Colloquy, I argue strongly in favor of the ministerial exception, concluding that it is a necessary part of a principle fundamental not only to the Religion Clauses, but to the Western church-state settlement more broadly: that, in an important sense, church and state each represent separate distinct sovereigns or jurisdictions. Whatever else that settlement means, it requires at a minimum that the state cannot involve itself in questions related to the selection and status of church leaders or members. 

I argue, however, that our focus on the question of power is inadequate. More important, perhaps, than the question whether the ministerial exception ought to exist is how we ought to behave if it does. Supporters of the ministerial exception--and I count myself among them--are morally obliged to give thought to how churches ought to behave toward their employees in cases in which those employees may be entitled to no legal remedy. I argue that the ministerial exception should be thought of as a responsibility or burden for churches, not just a license to act without legal consequence. Furthermore, where the law treats churches and other "First Amendment institutions" as entitled to a substantial degree of legal autonomy, we ought to think carefully about the role of both debate within the institution and public criticism of that institution in encouraging sound and responsible conduct by those actors. There are good reasons to champion the kind of institutional autonomy and pluralism represented by the ministerial exception, and to avoid thinking of the state as the font of all power and the solution to all problems; but taking that step requires us to think much more carefully about institutional responsibility, and about the civic duty of citizens to monitor and critique our key non-state institutions. Hosanna-Tabor should mark the beginning of an important conversation, not the end.