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Tuesday, October 04, 2011

Garnett, Berg et al. on the Ministerial Exception

Not to steal his thunder, but Prawfs colleague and good friend Rick Garnett, along with Tom Berg, Carl Esbeck, and Kimberlee Colby, have posted their contribution to the Northwestern University Law Review Colloquy on the Hosanna-Tabor case (oral argument tomorrow!) on SSRN.  It's titled Religious Freedom, Church-State Separation, and the Ministerial Exception.  It joins Colloquy pieces by me and Caroline Mala Corbin, with others to come; and while at SSRN, check out Chris Lund's terrific general piece on the ministerial exception.  Chris, Rick et al., and I all write in support of the ministerial exception, and Caroline criticizes it; that said, I think Caroline's piece is great, and although Chris's piece is a defense, it's also a very able general discussion of ministerial exception doctrine and justifications that can profitably be read by both supporters and opponents of the doctrine.  I haven't read Rick et al.'s piece, but I read their brief and thought it was terrific.

UPDATE: As I was writing and posting this, Rick posted his blurb on Prawfs.  So no worries about stealing his thunder.  Still, I'll chime in to recommend that you read his piece, and to encourage those who are interested in the case to canvass all the pieces noted above.  (All media inquiries, of course, should come to me directly--or, even better, to Chris Lund, whose piece really is terrific.)  Those of us who are participating in the Colloquy (and, as I said, there are a couple of others to come, at least one of which, I believe, is critical) add our thanks to the editors there and our hope that the whole shebang will be up soon.  Doubtless many of us will be posting reactions to the oral argument in the next couple of days.  Enjoy!  And, if I may add a personal note, good luck to Doug Laycock, who will be arguing the case for the church tomorrow.  


Posted by Paul Horwitz on October 4, 2011 at 05:21 PM in Paul Horwitz | Permalink


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Two good questions. Humanist, I think the short answer is that this continues to be a matter of scholarly interest (see, for instance, recent papers by Nelson Tebbe and Caroline Mala Corbin, both of them excellent). My own, fairly tentative view is that I would be satisfied with a different outcome, on the basis that the church-state settlement offers a different and more limited scope of coverage for at least some internal affairs of churches than it does for non-religious institutions, keeping in mind the profound difficulty of defining "religious" vs. "non-religious" institutions. I would also be satisfied with a fairly supportive position with respect to the humanist association on freedom of association grounds. To the extent that I would be inclined to support extending the same Religion Clause-based protections to the humanist association as to the clearly religious church, it would be on the same grounds that many people support this position: that 1) both organizations take positions on "ultimate questions," and/or 2) that given the relatively limited institutional capacities of courts, we are better off including both than trying to draw this distinction. I appreciate that this is a tentative and incomplete response, but I think it's the best I can do, and as I say, I think there is genuine discussion and debate on these issues in the law-and-religion community.

Quick Question, you are right that some courts see the ministerial exception as jurisdictional, and I would say that my own position leans heavily in this direction. That said, not all professors at religiously-affiliated universities are going to be treated as ministers under the law, and not all religiously affiliated universities are going to assert that those employees are ministers. Certainly they do not do so now, and there are all kinds of reasons, involving both market incentives and intrinsic beliefs, why I think they would not do so even if it would mean a quick dismissal of all employment disputes with professors. I hate to let my response to you turn on a disagreement over facts and law, because I appreciate the broader question you are raising, but I think it is an accurate answer. I would also add this snippet from the reply brief in Hosanna-Tabor, suggesting that even strong champions of the ministerial exception do not think it would cover every conceivable situation, and that many legal actions would remain available:

"When a church signs a contract written in
secular language, the contract can be enforced unless
the basic dispute is entangled in religious questions.
So, for example, a contract claim challenging dis-
charge for cause generally cannot proceed, but a
contract claim for unpaid salary or benefits generally
can. Such secular contract claims have always co-
existed with the ministerial exception. See Petruska
v. Gannon University, 462 F.3d 294, 310 (3d Cir.
2006); Minker, 894 F.2d at 1358-61 (both distinguish-
ing secular contract claims from discrimination

That isn't to say that one can't raise questions about the scope of the law given the concept of the ministerial exception as jurisdictional. But, especially taken in combination with the fact that the exception still has to be a "ministerial" exception, it suggests ways in which the exception would not necessarily swallow every conceivable legal dispute with an employee, ministerial or otherwise.

Posted by: Paul Horwitz | Oct 9, 2011 9:43:17 PM

Oops, meant to say "where the court said the exception was non-waiveable."

Posted by: Quick Question | Oct 9, 2011 1:31:58 PM

I did a little research on the ministerial exception, and found a few cases where the court was said to be non-waiveable--that is, even if the leaders of the religious institution tell an employee that their role is non-ministerial, and that they don't have to worry about it, they could still block an ensuing contract law action after termination because they never had the right to waive the exception in the first place (and this issue is jurisdictional).

If that is true, it basically means that no one has tenure at religiously-affiliated universities, right? Any future administration could characterize past grants of tenure as an illicit waiver of the exception, and get rid of the tenured people without facing any consequences, right?

Posted by: Quick Question | Oct 9, 2011 1:30:57 PM

Note: I posted this on faculty lounge as well.

I am a humanist and belong to a secular jewish temple but it is called a temple. We do not, however, pray to any deity but look to human beings to solve the world's problems. Let's say the Exec Board decides to fire one of the Sunday school teachers because she threatened to sue under the ADA b/c the temple did not accommodate her disabilty. The Exec Board decides that it would prefer to resolve disputes internally not in federal court (frankly, what employer wouldn't?) In fact, as humanists it believes that this outcome is much more preferable than suing in court. Same outcome as in the Hosanna-Tabor case (whatever that will be), why or why not?

Posted by: humanist | Oct 6, 2011 10:01:41 AM

Purely (and shamelessly) in the interest of self-promotion--or prawfs pimping as I've seen it called--I note that my contribution to the Colloquy is also up at SSRN. I explore the exception's particular application in racial discrimination claims....


Posted by: Ian Bartrum | Oct 5, 2011 3:16:21 AM

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