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Tuesday, October 11, 2011

Griffin on the Ministerial Exception, Part II

wrote a couple of days ago on Leslie Griffin's first set of comments on the oral arguments in the ministerial exception case, Hosanna-Tabor.  She has now put up part two of her comments.  As I said in my earlier post, we disagree on the right outcome in this case, but because of and not despite that, I think her comments are tremendously valuable and I am grateful to her for posting them.  I have only one question to raise about her latest observations.

In her new post, Griffin talks about Justice Sotomayor's question about "whether the ministerial exception should apply to 'a teacher who reports sexual abuse to the government and is fired because of that reporting.'"” She says the justices ought to be "rightly concerned about" that case, and about many others in which complainants are fired for raising questions about church misconduct.  In each of these cases, she writes, "we do not know who would win or lose. What we do know is that the ministerial exception kept the plaintiffs from having their day in court, or as Justice Kennedy said soon after Laycock answered Alito's question, 'you're asking for an exemption so these issues can't even be tried.'” 

For what it's worth, I agree with Griffin that the Court is entirely entitled to be concerned about the kinds of cases she mentions--just as opponents of the ministerial exception can and should be concerned about the possibility that the absence of such a doctrine might lead courts in some cases to impose harmful costs on the internal relationship between churches and their ministers.  The fact that one thinks that a particular outcome--ministerial exception or no ministerial exception--is ultimately compelled or preferable as a matter of law or policy in no way entitles one to be indifferent to the costs of one's position.  

That said, I think the way Griffin puts things is somewhat ambiguous in a way that raises a larger question about the debate over the ministerial exception: Is having a "day in court" a means to an end, or an end in itself?  That is, are we concerned about making sure there are ways to curb dangerous and harmful conduct by churches, and thus want to ensure a judicial avenue for curbing them?  Or is our concern to provide potential litigants with access to the courts because we believe, for reasons of equality, the rule of law, etc., that having a day in court is a good in itself?  The two are not mutually exclusive, of course; one may care about both.  But I think the distinction matters. 

Take a hypothetical example.  Suppose there is a church that rigorously invokes the ministerial exception.  But that church also has a process for hearing and resolving whistle-blowing by ministers that is in every way superior to that provided by the courts: a fairer process, paid counsel, greater damages, and so on.  Would Griffin be satisfied in that case?  Or does she believe that the very fact that the whistle-blower in such a case is forced to resolve her claims though a (superior) church process rather than through the courts is reason enough to reject this state of affairs? 

Of course it's just a hypothetical.  One can certainly argue that as long as many or some churches, or even just one, don't offer something as good as the legal process in such cases, it is necessary for consequentialist reasons to continue to ensure that one has a right to a day in court.  (Incidentally, I discussed the consequentialist nature of many arguments against the ministerial exception in an earlier post.  If we take that approach seriously, I think that position has broader implications.  There would then be good reasons to question even those cases in which, by statute, we offer a more limited carve-out from the civil rights laws for churches who discriminate on religious grounds.  To her credit, Griffin has made precisely this point in one of her articles on the subject, although I'm not saying that she thinks such a carve-out is never justified.)  But if what we care about is the misconduct itself, then nothing prevents us from thinking about other ways of preventing it besides the courts.  (I wrote about that in this article.)  If what we care about is the day in court itself, on the other hand, then the question of misconduct becomes, at an extreme, irrelevant.  What we are really saying is that churches ought not be above the law, regardless of whether that status has any practical or harmful consequences.  We are making a statement about the status of churches within the legal regime.  Or, from another perspective, we are making a statement about the nature and reach of the legal regime in general.  (As I said in my earlier comments on the Hosanna-Tabor oral argument, I think that's one way to understand Justice Kennedy's questions.)

Again, the two are not mutually exclusive.  My general sense is that some opponents of the ministerial exception are largely concerned only with practical consequences, in which case it is reasonable to think about non-judicial ways of guarding against misconduct, while others are also (or primarily) interested in the "day in court" as an end in itself.  Still, I think asking this question helps clarify what's at stake for both sides in the debate.  

Posted by Paul Horwitz on October 11, 2011 at 12:44 PM in Paul Horwitz | Permalink


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These are really terrific comments. I wanted to acknowledge them, although I'm a little pressed for time right now and might not be able to reply right away. I'm grateful for the engagement.

Posted by: Paul Horwitz | Oct 12, 2011 9:46:28 AM

Paul, some thoughts in response to much of your recent output organized around two points:

First, I don't see how on earth courts can judge religious institutions' grievance procedures without getting entangled, so you're asking a question that cannot be answered in court and likely won't be answered anywhere else, either. You suggest that it's still a topic for public discourse, but I don't see much evidence that, empirically speaking, you're right. Criticism of other people's religion goes further out of style every decade, doesn't it--but I'm getting ahead of myself. At any rate, in every other sphere of human activity, eventually the grievant can go to court--if only to lose once more--no matter how excellent the nonreligious institution's grievance procedures. Really, this is a canard for both sides in the debate. You won't relent even if all religious institutions aalways rig their grievance procedures in their own favor, and your opponents won't, even if religious institutions are more just than anyone else--if we could ask the question to begin with.

Second, you suggest that, even if the state cannot reform religious institutions, constituencies both inside and outside them can. If, for example, a particular religious institution does not provide effective grievance procedures, it will be subject to public scorn, a reform movement will arise within it, adherents will depart, etc. That's a very American, Protestant view of the relationship between the religious institution and the individual adherent: the adherent judges, rather than submits to, the institution. Indeed, I am struck by how much the ministerial exemption, and the vision you are articulating more generally, is rooted in a particular reading of a particular religious history: one that seems to value religious diversity as an good in itself, rather than, say, a regrettable division of what should be and will be united.

As I wrote above, I don't think the public discourse is going in the direction you suggest it should. People are increasingly reluctant to criticize others' religion, probably in large part because of the secular regime of religious nondiscrimination.

In sum, I think your scheme would work best if there were vigorous competition among religious institutions for adherents and a robust criticism of religious institutions--a complete immersion of God in the marketplace. I suppose this is Jeffersonian, but it's also contrary to the interests of many religious institutions and deeply troubling to at least some believers.

Posted by: Abe Delnore | Oct 12, 2011 9:39:24 AM

I actually just put up a post that deals with these issues (link is in my name), and I'd push back in a few ways:

* Shouldn't we look with more skepticism at claims of religious freedom when involuntary participants (such as children) are involved, as opposed to simply voluntary associations?

* Can't we find some balanced exemption that deals prevents courts from inquiring into matters beyond their jurisdiction (religious doctrine, etc) without having the suit itself be foreclosed? It would end up being messier for the lower courts, but that's not necessarily a bad thing.

As to the question about the end-in-itself vs means-to-an-end: it's partially both. There's been ample evidence that internal processes sometimes fail, and it's definitely true that a combination of internal processes and external oversight will do more to protect victims than internal processes alone. It's hypothetically possible that a certain religion could have sufficient processes to deal with these matters appropriately, but that wouldn't justify an exemption for *all* organizations.

But civil law is also an end in itself. It involves a social recognition that certain behavior has negative impacts outside the walls of the church and beyond the lives of those who choose to live within a religion. There's two different aspects to that: when religious organizations act in a way that harms the larger social fabric they have a lesser claim to independence; but also, the limitation of judicial recourse to internal processes ignores the larger social harm and pretends the issues are more contained then they are, which is itself a positive harm.

Posted by: Andrew MacKie-Mason | Oct 11, 2011 3:13:13 PM

Prof. Horwitz,
If we assume that having a day in court is a means to an end (and not an end in it of itself) -- so the real issue is having a mechanism to correct wrongs -- and we allow churches to create an alternative internal process, don't we need government to regulate that alternative process to make sure it is sufficiently robust to be a meaningful alternative? And if so, aren't we back to entanglement problems? You say "One can certainly argue that as long as many or some churches, or even just one, don't offer something as good as the legal process in such cases, it is necessary for consequentialist reasons to continue to ensure that one has a right to a day in court." Well, we would only even know that some internal church process was not as good as the courts if the government checked it, which to me means regulation of some sort. It seems we either have to(1) allow churches their own remedial scheme (or frankly no internal process at all if that is what the church chooses) with no judgment call or regulation at all, so complete unfettered autonomy OR (2) have the government monitor it to make sure it is provides a meaningful alternative to courts. The latter option seems to get us right back to square 1 with entanglement issues. And option 1 is really back to square 1 as well as there is no guarantee that any person will have a mechanism to correct unlawful conduct.

I completely agree that each position has costs. For me, I would rather have no ME and rigorous enforcement of all anti-discrimination statutes as it is not clear to me why religious autonomy for churches who receive government subsidies for education deserves more protection than other protected categories. I agree it is a normative call and that my position costs churches autonomy but just autonomy to discriminate and retaliate. Abiding by the anti-discrimination statutes does not interfere with churches only hiring ministers who espouse their beliefs.

Question: Under Title VI, entities that received what is deemed “federal financial assistance” (FFA) cannot discriminate based on race, national origin, or color. So if church agrees to get FFA, it cannot discriminate, right? Perhaps, Congress should pass some kind of statute that states if religious organizations receive any kind of FAA, they have to abide by all anti-discrimination statutes, including the retaliation provisions. If Congress passed such a law (and given that it passed the RFRA, I seriously doubt it would pass such a law), but if it did, would it be constitutional from your perspective?

Posted by: humanist | Oct 11, 2011 2:09:55 PM

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