Tuesday, July 7, 2009
Over at Prawfsblawg, Howard Wasserman has what is for MOJ-ers a must-read post on church-autonomy, the ministerial exception, Catholic law schools, and the latest from Ave Maria School of Law. He asks, among other things:
3) I would love to hear from Rick and others who study Catholic legal thought and Catholic education (especially legal education) about this case. What is the link between Catholic legal education and the Freedom of the Church? At what point should the Catholic or religious nature of a law school (whose core job, of course, is to teach secular law and to train future lawyers) be deemed so pervasive that every faculty member becomes, at some level, a teacher of religious doctrine or religious ideas? Would a secular inquiry into that professor's performance thus involve evaluation of sectarian matters? In other words, imagine a prawf who teaches civil procedure, but nevertheless is obligated to bring some canon law or Church doctrine into the classroom. Does satisfaction and performance on the religious component become part of the evaluation of her teaching, such that a secular inquiry into the circumstances of any adverse employment action necessarily requires a forbidden inquiry into sectarian matters? And would it be different if that faculty member's teaching package includes Canon Law?
I wrote, in the comments section:
In my view, (i) both the church-autonomy idea generally and the "ministerial exception" specifically are vital aspects of religious freedom; (ii) from this idea and this exception it does not follow that every employee of a Catholic law school is a covered "minister" or that such a law school's contractual relationships with its employees are *all* beyond the reach and review of secular courts; (iii) a Catholic law school (or, for that matter, a University) is not merely an institution where many Catholics happen to study, teach, and write and is not merely a place that happens to offer a course or two in a "Catholic" topic; (iv) it could be true *both* that the Catholic vision appropriately inspires everything that happens in a Catholic law school *and* that tenured faculty are not all "ministers" for purposes of the ministerial exception. That is, while I understand the concern that the "exception" might "swallow the rule" if "everything is part and parcel of faith", it is not clear to me that, in order to save the rule, one has to deny that, at the end of the day, everything *is* "part and parcel of faith."
Also, with respect to the issue of using the term "jurisdictional", I see your point, Howard. At the same time, "jurisdictional" does, it seems to me, emphasize (what I think is) the fact that the immunity at the heart of the "ministerial exception" is not best regarded as a concession or accommodation by secular authority; some things really are, in an important way, beyond the law-saying reach and power of a (just) constitutional government. (Ed.: Fine, then where's the line? RG: Good question.)
Thoughts? Put them here, and at Prawfs, please!