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Tuesday, October 04, 2011

Berg et al. on "Religious Freedom, Church-State Separation, and the Ministerial Exception"

Tom Berg, Carl Esbeck, Kim Colby, and I co-authored an amicus brief , on behalf of Prof. Eugene Volokh and a diverse range of religious groups, in support of the Hosanna-Tabor school, whose case is being argued in the Supreme Court tomorrow.  We also contributed a streamlined version of the brief to the Northwestern University Law Review Colloquy; the paper is not available yet at Colloquy, but it is available here, on SSRN.  Here's the abstract:

The Hosanna-Tabor case concerns the separation of church and state, an arrangement that is often misunderstood but is nevertheless a critical dimension of the freedom of religion protected by the First Amendment to our Constitution. For nearly a thousand years, the tradition of Western constitutionalism – the project of protecting political freedom by marking boundaries to the power of government – has been assisted by the principled commitment to religious liberty and to church-state separation, correctly understood. A community that respects – as ours does – both the importance of, and the distinction between, the spheres of political and religious authority is one in which the fundamental rights of all are more secure. A government that acknowledges this distinction, and the limits to its own reach, is one that will more consistently protect and vindicate the liberties of both individuals and institutions.

The “ministerial exception,” at issue in Hosanna-Tabor, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule. Reasonably constructed and applied, this rule helps civil decision-makers to avoid deciding essentially religious questions. In addition, and more importantly, it protects the fundamental freedom of religious communities to educate and form their members. Although the exception may, in some cases, block lawsuits against religious institutions and communities for discrimination, it rests on the overriding and foundational premise that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law’s corrective reach. The civil authority – that is, the authority of a constitutional government – lacks “competence” to intervene in such questions, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdiction.

Posted by Rick Garnett on October 4, 2011 at 03:59 PM in Rick Garnett | Permalink


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That is really helpful and I too am still working through my views and I plan to one day (hopefully soon) read all the articles that have been referenced in these blawgs. But can you provide me some examples of disadvantages not applicable to non-religious groups? I am not sure I understand that point and examples may be helpful. Thanks.

Posted by: confused | Oct 5, 2011 10:33:58 AM

Confused, I am definitely not presuming to answer for Rick; he and I may hold totally different views, and frankly I'm not sure I've worked through all my own views. But I would add a couple of things. First, to the extent that some of your examples are based on the specifically religious views of the church, it seems to me that they may well be allowed under current law. Moreover, to the extent that is so, I think the difference between these groups and non-religious groups will in a couple of cases (but not all of them!) be less dramatic, and thus harder to see as favoring religion over non-religion, as you suggest. The Klan might favor white people; the Radical Party might require its members to be committed to the forceful overthrow of the government; the Sierra Club might insist that its members and especially its officials or public representatives be environmentalists; and the Boy Scouts can insist on not having gay scoutmasters. Second, I think you are right to point to tough cases, but I would point out in fairness that any legal regime is going to have costs, either to society, to the institution itself, or both; our choice between regimes will always involve a comparison between non-ideal regimes. Third, and this is the point of my ministerial exception article, nothing under a ministerial exception regime prevents us from criticizing churches from so acting, both within and outside the organization, and I think it is often the case that we should. In some cases churches will listen to those criticisms and in others they will insist on acting in particular ways that some of us find distasteful; one of the dividing lines will be the intensity of their beliefs, so that in a sense the institutions most likely to insist on their "rights" will be the ones who have the most serious and legitimate reasons for doing so. Finally, and this is a point that's been made elsewhere by others, it's worth considering that 1) the Religion Clauses, at least as some understand them, DO single out religion; and 2) sometimes they single them out for disadvantages not applicable to non-religious groups. So in asking whether they are entitled to a favorable advantage here, we might remember that some of those who argue for such advantages also believe that the Establishment Clause may disadvantage churches in other areas, and see the advantages as part of the tradeoff or structure involved.

Posted by: Paul Horwitz | Oct 5, 2011 9:20:50 AM

And one last point: I think we can protect a religious entity's desire/need to only hire people who share a particular faith with another prong of the First Amendment that does not violate (in my mind) the Establishment clause and that is: associational rights. Just as the KKK should be able to limit membership to whites who believe in its message, religions should be able to limit membership and employees who share its messages. Associational rights do not favor religion over non-religion. What's wrong with using associational rights to protect the same interests?

Posted by: confused | Oct 5, 2011 9:14:36 AM

Thanks for responding. For me, the question is not so much how broad the ministerial exception should be (i.e. does it cover this employee who had both secular and religious duties) but rather when it applies, what does it mean. From your response, you are saying it means that, under the First Amendment, a religious employer can exclusively make employment decisions on any basis with no regulation from the govt. So I agree that murder and stealing are not on point (as they are not about the employment relationship). But I still think your argument proves too much. So if you would not mind, can you answer these questions?
When the ministerial exception applies (again not concerned right now with who it actually covers but what it means when it does apply),
(1) Can a religious employer only hire white people?

(2) Can a religious employer pay female employees less than men doing the same job for the stated and acknowledged reason that women have husbands who also work so don't need the money.

(3) Can a religious employer fire all women as soon as they become pregnant b/c it wants women at home and not working?

(4) Can a religious employer only hire people who have more than one wife (so spiritual wives). Can a religious employer fire employees who only have one spouse and plan to get no more spiritual wives?

(5) Can a religious employer only hire people who believe and advocate that parents should be able to force their young girls into marriage? Obviously doing this is against the law but people are allowed to believe anything. So can a religious employer only hire people who profess to have beliefs that if implemented would be unlawful?

It seems like you will answer yes (perhaps reluctantly) to all these questions b/c the gov't should not interfere with the hiring decisions of religiuos entities for any reason. To me (and I will admit that I am agnostic who acts like an athiest), the ministerial exception favors religious employers over non-religious employers in violation of the Establishment Clause. To be clear, I think a religious employer should be able to prefer someone who shares that faith (and the statutes provide an exemption for that reason) but I am uncomfortable with the existence of the judically-created ministerial exception if it means that religious employers can do whatever they want vis a vis employment with absolutely no regulation from the government. That is favoring religion over non-religion.

Posted by: confused | Oct 5, 2011 8:44:06 AM

Confused, as I see it, this case (and others like it) are very much about religion; they are about the decision that a religious institution makes about who will be its ministers and what will be its message. This is a decision that a church-state-separation-observing government will leave to religious decisionmakers. (Nothing about Hosanna-Tabor's position (or mine) implies that religious groups' members can "steal" or "murder.") Those decisionmakers, no doubt, will sometimes act badly; they will sometimes make decisions (just as we all sometimes make decisions) that do not reflect considered "religious" judgments but instead reflect pettiness, venality, stupidity, etc. But, a government like ours does not supervise essentially religious decisions and relationships. I agree with you that the government has a "compelling" interest in combatting workplace discrimination, but that interest is limited (in my view) by the fact that the government's regulatory power is limited. The claim is not "let us violate or ignore the antidiscrimination law"; it is, as I see it, "of course we have to follow the antidiscrimination laws in terms of our dealings with non-ministerial employees. However, the employment-discrimination laws do not, given the First Amendment, cover the essentially religious relationship between a church and its ministers."

Posted by: Rick Garnett | Oct 5, 2011 8:12:31 AM

I am really confused about this case. While I agree with this statement: "Because any worthwhile account of religious freedom would respect the authority of religious communities to select freely their own clergy, ministers, teachers, and doctrines, any such account must include something like the ministerial-exception rule," is that what this case is about? Title VI and the ADA specifically allow religious preferences, right? A religious group can legally preference someone who shares their religious philosphy. But this case is about retaliation under the ADA -- this has nothing to do with religion. Can religious groups break the law? Can their members steal, murder, etc? No! If the law is one of general applicability, not singling out religion (in fact, gives religions a statutory right to express a preference), then why should religions be able to disregard laws that have nothing to do with religion. I feel like I am missing something huge. Does any religion argue it can retaliate against people for exercising rights under an anti-discrimination statute? We don't allow pologamy, which clearly is a religious tenet for some, because of the compelling interest we have in monogamy. Isn't protecting the validity of anti-discrimination statutes by preventing retaliation just as compelling. Frankly it seems more compelling to me. And this church's handbook explicitly said that it would accomodate people under the ADA. So it concedes that the ADA applies to it but that it can retaliate when its members exercise rights under it?? What am I missing?

Posted by: confused | Oct 5, 2011 12:18:20 AM

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