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Thursday, September 06, 2018

Ministerial exemption as a mandatory merits defense

I have thought much about the jurisdictional status of the ministerial exemption since SCOTUS decided (correctly) in Hosanna-Tabor that the exemption was a merits-based affirmative defense and not a limit on the court's jurisdiction.

But that makes footnote 4 of this Third Circuit case a bit strange. The court held that the ministerial exemption barred a pastor's breach-of-contract claim, granting summary judgment for the Church on exemption grounds, even though the pastor was the one who moved for summary judgment and the Church never raised the defense. The court noted the following:

The ministerial exception is an affirmative defense. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 , 195 n.4, 132 S. Ct. 694 , 181 L. Ed. 2d 650 (2012) (stating that the ministerial exception "operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar"). Although the District Court, not the Church, first raised the ministerial exception, the Church is not deemed to have waived it because the exception is rooted in constitutional limits on judicial authority. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 , 581-82 (6th Cir. 2018) (holding that a defendant "has not waived the ministerial-exception by failing to raise it . . . because '[t]his constitutional protection is . . . structural'" (citation omitted)); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 , 836 (6th Cir. 2015) (explaining that Hosanna-Tabor's rationale for recognizing the ministerial exception establishes that "the Constitution does not permit private parties to waive the First Amendment 's ministerial exception" because "[t]he constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state governments from becoming involved in religious leadership disputes"). Moreover, Lee did not argue before the District Court that the Church waived the defense. Therefore, it was appropriate for the District Court to consider the ministerial exception.

Hosanna stated that the ministerial exemption is not a jurisdictional bar. But the second sentence contradicts that by describing it as "rooted in constitutional limits on judicial authority"--which is the definition of a jurisdictional bar. Rather, we should think of the exemption as a  mandatory merits defense--although a limit on substantive merits, it has a structural basis and thus cannot be waived. As Scott Dodson has argued, mandatoriness or non-waivability is a consequence, not a defining characteristic--some defenses can be so important as to be non-waivable, even if they go to merits and have nothing to do with adjudicative jurisdiction.

Posted by Howard Wasserman on September 6, 2018 at 11:55 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink


Asher asks, "would turning the claim into a false-advertising claim somehow change standing for you?"

Possibly. The difference is between the two different claims is the difference in what harm has to be demonstrated in order to demonstrate standing. I agree with the court that under their current cause of action they haven't demonstrated enough harm to merit standing. But under a different cause of action the plaintiffs might be able to do so.

Posted by: James | Sep 10, 2018 1:42:04 PM

I think it's more about the defense being non-waivable, so not lost because the party did not raise it and is now willingly taking advantage of the district court's choice to bring it up. Actually, the court found a waiver in the other direction--because the pastor did not object to the district court sue sponte granting summary judgment on M/E grounds, he had waived the argument on appeal.

Posted by: Howard Wasserman | Sep 8, 2018 5:11:32 PM

Just he who wants , can access the pdf format of the case , here :


Posted by: El roam | Sep 7, 2018 8:32:54 PM

Would turning the claim into a false-advertising claim somehow change standing for you? Your and the panel's reasoning sounds like a merits concern, and a cause-of-action-specific merits concern at that.

Posted by: Asher | Sep 7, 2018 4:49:52 PM

@Asher. That opinion by Judge Smith is correct. As I see what is really going on here a false advertising claim masquerading as a product liability claim.

@Howard. i am unconvinced there is any such beast as a "mandatory merits defense." Fundamentally the right to have a defense is the right to defend on the grounds of one's choosing, not to have one's defense foisted on oneself by the court.

Posted by: James | Sep 6, 2018 11:29:37 PM

Take a look at today's Third Circuit opinion on standing:


Posted by: Asher | Sep 6, 2018 7:07:59 PM

Interesting , but one should not forget , that the case of Hosanna , was in fact a civil action , not criminal proceedings , and too many times , very thin line , separates them both . Beyond it , the case in Hosanna , was based upon the idea or notion or fact in fact , that she was in fact a minister ( contrary to the circuit opinion ) as such , the precedent is implied indeed ( wrongly , because that fact , had to raise more justification or suspicion concerning the pretext for firing her , for it does imply , that the court intervenes , not in theological discretion , but rather , what looks more as a pretext . For , not the theological qualification of the person was the issue , but rather , seemingly , more external civil issues ).

That is to say , that based upon that case of Hosanna , even if it has structural basis and thus cannot be waived , that is not to say , that the precedent , should be implied , with no exception to the exception .


Posted by: El roam | Sep 6, 2018 2:15:45 PM

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