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Sunday, October 09, 2011

Griffin on the Hosanna-Tabor Oral Argument

There have already been some fine commentaries on the oral argument in Hosanna-Tabor, mostly from a point of view sympathetic to the church and its legal arguments.  (You can find a couple of entries at National Review Online by our own Rick Garnett.)  I still hope to add my thoughts, although the press of events is such that I'm not sure I'll get around to it.  At Concurring Opinions, Leslie Griffin offers what she calls part one of her own thoughts on the oral argument.  I find this especially noteworthy and valuable both because she is an excellent law and religion scholar and because her views tend to be opposed to the church's position, and to the ministerial exception more generally.  (I'm leaving out some nuances; she's not, as I understand it, always opposed to it.)  It's a good thing to get both sides of the issue.  I encourage you to read her thoughtful post.  Not incidentally, Griffin is one of the co-writers of an important amicus brief against the ministerial exception and its application to this case, which I questioned in this post and criticize in my forthcoming Northwestern University Law Review Colloquy piece.  

Griffin's perspective is evident in the opening line of her post: "Lost in the muddled oral argument of Hosanna-Tabor Evangelical Lutheran Church and School v EEOC was the case’s central question: Are religious groups entitled to disobey the law?"  She adds: "Justice Sonia Sotomayor identified the important legal issue early in the oral argument when she asked the church’s lawyer, University of Virginia Professor Douglas Laycock, 'doesn’t society have a right at some point to say certain conduct is unacceptable, even if religious?' That is what the ministerial exception is all about: at what point do religious organizations have to obey the law?"  She notes that the government's position in the case appears to require the courts to balance the church's interests against the government's genuine interest in enforcing its antidiscrimination laws, and questions this approach:

That balancing is the whole problem with the ministerial exception. It leaves courts choosing which religions are acceptable and unacceptable based on vague balancing tests. . . . Petitioner Hosanna-Tabor would solve this problem by exempting religions from all the laws whenever religions assert ministerial performance is involved. Justice Scalia’s questions suggested the Establishment Clause requires that outcome. That solution is exactly backwards. The starting point should be a rule that requires religions to obey the law. The Establishment Clause should be violated by a rule that lets courts determine which theologies override government interests and which do not. The Court should be wary of issuing an opinion holding that religions are free to disobey the law.

It's a good post that raises good questions.  I hope she delivers on her promise and posts more.  I do, however, disagree substantially with her post, for reasons I elaborate on below the fold.

First, I do think Griffin's post raises some useful questions about the scope of the ministerial exception and whether there is a principled basis for some of the limits on church immunity or autonomy that the courts have accepted without much difficulty or discussion in previous cases.  She cites some excellent examples, which I have not excerpted here.  I am sure she would agree that the outcome of those cases leaves us with hard questions about fit and consistency, but does not tell us which way that should cut: in favor of a result here that is consistent with those cases, or in favor of revisiting the earlier decisions.  Similarly, I should think that supporters of the ministerial exception can agree with Griffin that it is difficult to answer the questions raised in a host of very different cases involving the conflict between churches and generally applicable laws through a general test or formula, at least without leaving one queasy about the results in certain cases.  I happen to think that this is true not only of the general formula "church autonomy," but also of the general formula "churches should obey the law," and that supporters of that approach should similarly either acknowledge that this formula doesn't help us much in particular cases, or that, to the extent it is rigidly administered, it should similarly leave us with queasy feelings about the outcome of particular cases.  But she is right to point to those complexities in any event.  One of the critical things I say about the pro-church-autonomy position in my Northwestern piece, notwithstanding the fact that that is my position, is that arguments of that sort often make too little of the difficulties of particular cases and questions.  

That said, I don't think the question "Are religious groups entitled to disobey the law?" is terribly useful, and for similar reasons.  It reminds me of Marci Hamilton's efforts to place "the rule of law" front and center in church autonomy debates, and it leaves me unsatisfied for similar reasons.  To say that churches should obey "the law" is to raise the very question what "the law" is and what it requires.  We can imagine more or less fancy versions of this question.  A basic version would have to argue about what "the law" is given the First Amendment.  A more elaborate version would ask about the scope and reach of "the law."  No one would think that because American law requires the enforcement of civil rights laws, the United States should seek to enforce Title VII in Saudi Arabia in a case involving Saudi employees of a Saudi company with no connections to the United States.  It would be understood to be absurd, even if the statutory text did not mention territoriality or citizenship, because no one understands American law to reach that far.  One of the broader arguments made by some champions of the ministerial exception--myself included--is that this case raises questions about the reach of American law, and whether the fundamental church-state settlement that is as much a part of "the law" as anything else really reaches into the internal employment relations of churches with their ministers.  We could reverse Griffin's question somewhat by asking: "Just how extensive is the imperial reach of the state?  How far does 'law's empire' go?"  I think there are good reasons to conclude that it doesn't reach as far as the church's relationship with Perich, and I think some of the questions in the oral argument (especially from, say, Justice Kennedy) are really about this deeper question of the law's jurisdiction in church-state matters.  I would quite understand why judges (and supporters of civil rights laws) would be uncomfortable with an answer that stresses the limitations on the state's jurisdiction, and I think it raises important and potentially troubling implications (although not as troubling as some opponents of the ministerial exception suggest; to say the law does not reach that far is not the same thing as saying that churches will necessarily act arbitrarily or wrongly, or that there would be no non-legal remedies if they did).  I can't deal with all those questions and concerns here.  I just don't think that the question Griffin asks is self-defining or self-answering.  

Even if we take a less exalted, big-picture view, the question is still incomplete.  Let's say we all agree that the rule of law is important and requires generality.  We can still argue about what that means and requires.  The point of generality is to treat like cases alike and different cases differently, in light of both the particular statute and background legal principles.  We would not say that a sign at a state-run fair that says "You must be this tall to board this ride" fails to respect generality and must either allow everyone or no one to board the ride, because we think height is a salient qualification for boarding the ride.  Even if it leads to over- or under-application, we would still accept the drawing of a line somewhere.  Similarly, in the ministerial exception cases, we can't answer the question whether generality as a rule-of-law principle has been violated without asking, and trying to answer, the question whether churches as employers of ministers are similarly situated to other employers, or whether there are salient reasons--including reasons of background legal principles, such as church-state separation--that demand "different" treatment for them in order to render their treatment "equal" in a relevant sense.  (To that we might add the point made by Abner Greene, Michael McConnell, and others: that the Religion Clauses disadvantage religion too, in some ways.  A believer in generality as the solution to church-state questions ought to be thinking carefully about the implications of this position for his or her views about a variety of Establishment Clause cases; or they ought to be thinking about whether the right way to achieve a certain kind of fidelity to the rule of law in church-state cases is to think about the ways in which churches are supposed to be both disadvantaged and advantaged in different circumstances.)  This is what I like about the debates between opposing sides in the ministerial exception cases: everyone agrees that the issue is simple; the two sides both disagree about why the issue is simple and which way it points; and both sides may be wrong, and the issue may actually be quite complex.                 

One last point: Griffin argues that the problem with balancing approaches is that they require courts to engage in an impossible or very difficult inquiry about church vs. state interests, and that they will lead to courts distinguishing between faiths on unsustainable or very difficult bases.  Hence the courts should avoid doing so, which for Griffin points to a rejection of the ministerial exception.  Thus, the quote above: "That balancing is the whole problem with the ministerial exception. It leaves courts choosing which religions are acceptable and unacceptable based on vague balancing tests. . . . The Establishment Clause should be violated by a rule that lets courts determine which theologies override government interests and which do not."  I discuss this argument a little in my Northwestern piece.  

There is a kind of inconsistency here (perhaps on both sides, but I am focusing on ME opponents for now).  To quote that article: "Critics of the ministerial exception insist that the best way to avoid entanglement in the retaliation area is to accept the court’s assertion of religious grounds on a blanket basis, but dismiss them as irrelevant under the rule in Smith.  Elsewhere, however, they argue that courts must not accept at face value a church’s assertion that a particular employee is a minister, but must instead engage in a careful consideration of the employee’s ministerial status; they then argue that this case-by-case approach would entangle the court in theological questions, and that the ministerial exception should therefore be abandoned.  See, e.g., Professors’ Brief, supra note 26, at *32-*35.  These critics, in short, argue for deference to the church’s determinations in some cases and against deference in others; in both instances, their arguments ultimately favor the employee."  Where balancing approaches are concerned, it seems that churches can't win for losing.  Of course, there is more than one way to resolve this conundrum.  We could get rid of balancing by getting rid of the ministerial exception; but we could also largely get rid of it, or at least of any implicit balancing that requires courts to consider who is a minister and who isn't, by generally deferring to churches' own determination that a particular employee is a minister.  Both approaches have costs and benefits, and our conclusions about which is preferable depend on deeper normative arguments.  (That is, if we really reject balancing altogether.  Some opponents of this instance of judicial balancing are fairly comfortable with balancing tests elsewhere in constitutional law.  Justice Scalia in Smith suggested some reasons why this area might be different, and they are fair arguments, but it is also true that if we think courts are generally up to the job of judicial balancing, it might not be fatal in this area in particular.)  Again, I'm not trying to settle the issue here.  But, at least on a reading of the brief that Griffin co-wrote, I think it is fair to say that some opponents of the ministerial exception have a somewhat inconsistent view of when balancing is acceptable and when it is unacceptable, and I also think that if we do reject balancing, we are just as capable of doing so in a way that favors the ministerial exception as we are of doing so in a way that undercuts it.  

Notwithstanding--really, because of--my disagreements with Griffin's post, I encourage you to read it and I'm grateful that she posted it.      



Posted by Paul Horwitz on October 9, 2011 at 04:54 PM in Paul Horwitz | Permalink


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Sorry, one more important response. I'm not sure why it is clear that the best thing the Court can do here is "delimit a vague category of favored American religions." I suppose I might be able to agree with that (tentatively, not finally) if you meant "vague category of favored American religions" extremely broadly, and merely meant that the Court should distinguish between religion in general and non-religion. But if you have in mind a narrower definition of favored religions, one that would distinguish between different faiths all of which are generally acknowledged to be religious, then I don't think that the Court can or should do so. That certainly means that under my view, not only the ministerial exception but other religious freedom entitlements would be very broad in scope, and that raises the standard questions about anarchy, the rule of law, and so on that Smith discusses. But I think that is an acceptable cost, better than discriminating between religions in a categorical fashion, and in any event that our focus on formal law and relative lack of interest in non-legal ways of criticizing and constraining churches, including internal discussion about values by churches themselves and external public criticism of churches' behavior, leads us to overassume that any approach that leaves religious groups and individuals with substantial freedom to act will necessarily lead to dogs and cats lying down together.

Posted by: Paul Horwitz | Oct 10, 2011 10:45:21 AM

Thanks for the comment. A couple of notes. 1) I agree that there is no eschewing tough decisions in this area; both Marc DeGirolami and I have written about the inevitability of tragic choices in church-state conflicts. Those tragic choices won't be terribly evident or painful in every case, but they will be present in theory often and in practice sometimes. What can't be avoided should be acknowledged openly and confronted as best we can, with a proper accounting of costs and benefits to the extent we can determine them, and with an admission that there is no perfect answer; there is always a remainder. 2) Given that perspective, there are ways in which one can have greater respect for writers like Griffin and others who ultimately assert the dominion of law over religion; they are at least making a decision and staking something on it. That I disagree with them about how to cut the Gordian knot doesn't mean I can't respect them. 3) At the same time, it's all the more important, then, that we not conclude that a tragic choice in one direction or another-- in the direction of church atuonomy, or in the direction of general applicability of law--is simply compelled. That's my problem with the way Griffin frames the issue; invoking generality or "the rule of law" does not compel a result here, but rather simply leads us a level down to deeper normative debates. It is true that I think the ministerial exception better comports with what I think is a fundamental idea of the Western church-state settlement, and that I disagree with efforts to expand the imperial reach of the law; so I too have made a choice. But those choices are not preordained or demanded by existing law or legal principles. They are open to contestation. Moreover, either choice--in favor of church autonomy or in favor of the general applicability of law--has serious costs that must be acknowledged. 4) In fairness to Griffin, I would not put things at the feet of her allegiance to a secular religion. I don't know her personally but I'm not sure that's an accurate description of her own religious views or her motives in this and similar cases.

Posted by: Paul Horwitz | Oct 10, 2011 10:40:45 AM

Since the very question is what "the law" requires, including the 1A which specifically gives religion a special place (in both directions; the state can "establish" many things, but not a "religion"), the starting place of that post is troubling. A good discussion starting on the wrong foot still starts off on the wrong foot.

Not that she is unique in this regard. Many people in legal discussions assume stuff that are actually much in dispute thus easing the path to syllogisms resting on disputed reasoning. Can we stop this? (No.)

Posted by: Joe | Oct 10, 2011 10:34:15 AM

Griffen fails to grasp / ignores the fact that the valuation of religions is precisely WHAT the Establishment Clause does.

The requirement to announce that religious groups must obey the law is simply an expressive formality designed to justify the coming result, and, as you note, does no heavy-lifting.

Griffen's test devalues all religions (except her secular religion) at the expense of the very religions she professes to be protecting.

The best thing the Court can do here is to implicitly do what Griffen doesn't want and delimit a vague category of favored American religions. That's what we have done from the start, and speaking in Griffen's terms is merely an attempt to replace this category with Griffen's own theological vision.

...which should demonstrate that once you go down this interpretive road, there's no eschewing tough decisisions.

Posted by: AndyK | Oct 10, 2011 10:04:01 AM

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