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April 07, 2011

Prof. Corbin vs. the Ministerial Exception: What She Overlooks

Over at Concurring Opinions, Professor Caroline Corbin (U. Miami Law) argues that "the religion clauses [of the First Amendment] do not justify the ministerial exception" to antidiscimination laws.  She dismisses both strands in the intertwined argument for protecting churches.  I think her analysis overlooks several crucial points.

First, Prof. Corbin rejects the Establishment Clause argument "that resolving anti-discrimination cases [by clergy] will lead courts to substitute their judgment for that of the religious institution on spiritual and theological matters."  She says that the Establishment Clause means only that court may not "independently evaluate a minister's spiritual or theological qualifications"--for example, by ruling that "a church was wrong to fire a choir director for her choice of music because the music chosen was in fact perfectly suitable for Sunday services."  Under this standard, she assures, "many discrimination suits do not present any religious questions."

This overlooks, among other things. the central role of "pretext" questions in antidiscrimination cases, including Hosanna-Tabor.  Plaintiffs commonly say --as does Perich, the dismissed teacher here -- that their case presents no religious issue because the religious reason the church gives for acting did not actually motivate it.  But in order to determine whether a (religious) reason was a pretext, courts typically have to delve into its details and assess its credibility--since, of course, a major factor in deciding whether a given reason is sincere is whether it's at least colorable on its merits.  Antidiscrimination suits thus constantly invite courts to evaluate churches' religious assertions.  It's immaterial that the evaluation is a part of a "pretext" analysis rather than (as Prof. Corbin would have it) an "independent" determination.

In addition, Prof. Corbin seems to have too narrow an understanding of what constitutes a religious question.  Hosanna-Tabor refused to let Perich return early from her disability leave because, among other things, the school worried that her return would disrupt the students' school year.  In the context of a ministerial position, these facts surely lead quickly into religious inquiries.  Suppose that when a pastor seeks to return early from leave, the church declines because it judges that the congregation's members have become used to the interim pastor's preaching and counseling.  If the court were to hear and evaluate the plaintiff's argument that "No, the impact on the congregation wouldn't be very serious," it would dive immediately into religious judgments about the pastors'  effectiveness and the congregation's needs.  Perich was not a pastor, but she was formally commissioned as a minister--designating her as a clergy member in the church's eyes--and she had religious duties with respect to her students, so these concerns applied to her position as well.  But my main point here is about the ministerial exception in general: it is justified because religious questions are far more likely to appear in antidiscrimination suits than Prof. Corbin admits.

Another common problem with clergy antidiscrimination suits is present in Hosanna-Tabor: the church lost confidence in Perich as a commissioned minister because of her insubordinate manner in insisting she must return early and her threats to sue.  (Prof. Corbin claims that these facts are irrelevant because the church did not refer to them until after it fired her, but from what I can tell that does not appear to be the case.)  Many churches follow the New Testament exhortation that believers should resolve internal matters without resort to civil courts.  If a church cannot sanction a clergy member for disregarding that process without facing a retaliation suit, then antidiscrimination law will not only entangle courts in religious questions but will directly override churches' doctrinal tenets about how clergy should conduct themselves.  (Prof. Corbin elsewhere asserts that churches should be able to carry out their "religious tenets" concerning clergy, but not, for some reason, this one.) 

Finally, on the free exercise side, Prof. Corbin relies entirely on precedent--Employment Division v. Smith--in arguing that ordering a church to reinstate a dismissed clergy member does not violate free exercise rights.  But here she omits relevant language in Smith.  Even as it upheld most "neutral, generally applicable laws," Smith also said that the First Amendment "prohibits government from lending its power to one other side or the other in controversies over religious authority."  When a court orders reinstatement of a clergy member who the religious group believes should no longer be in the position, the court imposes state power in a controversy over religious authority.  The lower courts, which have uniformly preserved the ministerial exception after Smith, have properly followed this language.

After all this, Prof. Corbin reassures us that religious organizations still have some protection under ... general freedom of association (in other words, no more protection than any other organization expressing its beliefs).  Her post is a striking example of a struggle to avoid the obvious: the First Amendment's has two clauses specifically about religion, and they might sometimes require special rules protecting religion.

Tom B. (back after a hiatus)

Posted by Thomas Berg on April 7, 2011 at 11:59 PM in Berg, Thomas | Permalink

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Tom, thanks for the very good post. Just a quick note to flag a paper that I found really interesting by John Inazu on the problematic quality of freedom of association doctrine -- problems which would invariably infect the ministerial exemption if we were to ground it in associational rights:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589045

Posted by: Marc DeGirolami | Apr 8, 2011 9:28:01 AM

Thanks, Marc. I know John's excellent paper. If we have to do so, we should make the best we can of freedom-of-association doctrine. But we first should resist the effort to make the religion clauses irrelevant.

Posted by: Tom Berg | Apr 8, 2011 9:32:47 AM

Tom,

I really enjoyed reading this – though of course I disagree!
So as not to repeat myself, I will just note that I have made comments on Chris Lund’s post and have another post at Concurring Opinions.

Thanks!

Posted by: Caroline Mala Corbin | Apr 13, 2011 1:49:38 PM

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