Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, February 25, 2011

Church Autonomy on Tap?

John Elwood at Volokh discusses two law and religion cases that are scheduled at the Supreme Court's case conference today.  It's interesting to me that both involve church autonomy questions -- whether and when the state ought to interfere with matters of church governance and management.  The second case, Hosanna-Tabor Evangelical Lutheran Church and School v EEOC, would involve the Court in a ministerial exemption issue.  The terminated employee, through the EEOC, brought a claim under the Americans With Disabilities Act (according to the petition for cert. filed by Doug Laycock, she claimed in part that she was fired because of her diagnosed narcolepsy -- interesting).

I hope the Court takes Hosanna-Tabor, if only to declare itself on the ministerial exemption.  The federal circuits have uniformly accepted the ME, though there is a difference of opinion about its scope.  But the Supreme Court hasn't even officially ever recognized the doctrine at all.  Arguably, it obliquely acknowedged the ME in NLRB v. Catholic Bishop of Chicago, where it said that "excessive entanglement" concerns necessitated that teachers in parochial schools be exempted from collective bargaining requirements.  But it would be good to get a clear statement from the Court on the viability, let alone the reach, of the ME. 

ADDENDUM: A knowledgeable commenter points out that the plaintiff is now proceeding only on a retaliation claim and has dropped the discrimination on the basis of disability claim.


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What is the idea behind a "ministerial exemption" to discriminate against people based on disability? Theoretically, wouldn't religious organizations want to be at least as nondiscriminatory in the area of disabilities as nonreligious organizations? Why should a person have fewer employment rights because he or she works for a religious organization? I can see why religious groups would want to be exempt from antidiscrimination laws that might force them to hire people who did not share the organization's values. But what is un-Christian about narcolepsy or any other disability? Is it simply that religious organizations want to be as free as possible from all government interference? And how can that be squared with the belief that religion has a right to try to influence government? Is it only a one-way street?

Posted by: David Nickol | Feb 25, 2011 11:32:05 AM

David, I would resist the way you put the question. The issue is not, in my view, about an exemption "to discriminate against people based on disability." The issue is about the extent to which the state should inquire into the reasons that a religious organization has made the decisions it has when one is dealing with appointments and dismissals of employees who perform clerical functions. This is not to say that, for example, a purely pretextual firing ought to be insulated. But for reasons of institutional autonomy and excessive entanglement, as well as for the health of the institutions themselves (and the impracticality of compelling a religious institution to retain or hire an employee that it did not want), when an employee's job responsibilities relate directly to clerical matters, courts have historically, and it seems to me with good reason, not inquired after the reasons. On the other hand, when one is dealing with a non-clerical position -- say, a groundskeeper, or an administrative assistant -- the reasons for the ME are, in my view, quite weak.

If you are interested in the issue, may I recommend two scholarly treatments at diametric ends of the spectrum: Caroline Corbin's piece on the ME, and Paul Horwitz's sphere sovereignty article. My views on the ME fall somewhere between theirs.

Posted by: Marc DeGirolami | Feb 25, 2011 12:24:06 PM

One additional little note which may help to put the issue in a clearer light. Consider Tomic v. Catholic Diocese, a 7th Circuit case from 2006, where the Catholic Church claimed that it had fired an organist for reasons dealing with liturgically inappropriate music selections, while Tomic alleged that he had been really fired for reasons of age discrimination. In declining to consider the case, Judge Posner observed that the court would be forced to intermeddle in and resolve a theological dispute about liturgical matters that it was not competent to resolve.

Posted by: Marc DeGirolami | Feb 25, 2011 1:03:35 PM

One correction to the post: the plaintiff dropped her disability discrimination claim proper (perhaps because she did not feel she had enough proof of narcolepsy) and instead has proceeded with just a retaliation claim (i.e. retaliation by the religious school for threatening to sue on the basis of her disability).

Also, the school is not claiming an ability to discriminate against people with disabilities. The school says the plaintiff was fired for insubordination and she claims that it was retaliation for threatening a disability lawsuit.

Posted by: ER | Feb 25, 2011 1:33:25 PM

ER, thanks. I've corrected the post.

Posted by: Marc DeGirolami | Feb 25, 2011 1:43:16 PM


Thank you for your response, and thank you for recommending the two articles, which I found free online, instead of an expensive and/or out-of-print book! On the one hand, I do see a problem in the case with the organist. On the other, it seems to me juries are often called upon to deal with questions they are not competent to resolve.

Posted by: David Nickol | Feb 25, 2011 3:36:07 PM

David, I think the point about the M.E. is that there are some questions that courts are not merely less-than-*competent* to resolve (because they are arcane, difficult, weird, etc.), but also *unauthorized* to resolve (e.g., "does this Church's theology actually provide a theological reason for doing X?". The M.E. needs to reflect, in my view, concerns about this latter kind of incompetence.

Posted by: Rick Garnett | Feb 25, 2011 4:22:53 PM


Suppose the organist has his boss on tape saying, "Face it, Biggs. You're just too old for this job. You're a great musician, and we have no complaint about your work, but we want our people to look young and dynamic, and you look old and dynamic." Does the government stay out of this particular case because it falls into a *category* of cases, many of which would involve questions the courts are not competent to answer? The one case of discrimination because of disability that I know of (a deaf friend) was almost that blatant. My friend, a young biochemist, said there was no way he could take legal action without harming his future in the field.

Posted by: David Nickol | Feb 25, 2011 5:45:47 PM


Following up on the Biggs example, I think part of the ministerial exception is about conscience (the Catholic Church not wanting to ordain women). Part of it also is about the risk of error that you talk about above. A minister claims to have been fired because of her sex; the Church says that it was because she was a bad minister. McDonnell Douglas works by having the jury ask themselves whether she really was a bad minister. Yikes. And I really don't think we can do this case-by-case. That is, I don't think we can say that the ME applies only when the Church alleges this sort of "religious" non-discriminatory reason. Because churches would quickly learn to always allege religious non-discriminatory reasons to get cases dismissed. We need something categorical.

But let me take your case--a case of proven discrimination not backed by any conscience claim of the church, the worst case scenario for the ME. Let's say the Methodist church (which officially ordains women) fires a female minister admittedly because of her sex. A court reinstates her over the Church's objections. That's a big imposition on church autonomy, even if discrimination is proven. The Church is permanently stuck with a minister that it doesn't want and the government is now appointing clergy. And there are macro-effects too. Many churches that ordain women (from the Lutherans to the Conservative Jews) have serious gender imbalances. Remove (or water down) the ministerial exception, and plaintiffs' lawyers will bring industrial-strength class actions seeking massive internal restructuring of those churches to reduce those imbalances.

In addition to Marc's suggested pieces, Doug Laycock has a piece called, "Church Autonomy Revisited" in the Georgetown Journal of Law and Public Policy. That's a good one too. And I hate being shameless, but I have a piece on this that I'm hoping to send out in the Fall.

Posted by: Chris Lund | Feb 26, 2011 1:26:19 PM

Chris, thanks for the astute comment (and look forward to seeing your piece).

Would you feel differently if (1) the church were acting contrary to its own stated doctrines and principles, and (2) the evidence that the proffered explanation was pretextual was very strong, and (3) the plaintiff was seeking damages rather than reinstatement or some equitable remedy? My own view is that some degree of inquiry is warranted even in cases where one might be dealing with an employee who performs clerical functions, provided that one had very strong evidence on grounds like these.

Posted by: Marc DeGirolami | Feb 26, 2011 1:35:33 PM

Thanks, Marc.

I think we need a categorical rule, so I wouldn't feel differently in any of those circumstances. (1) and (2) do not matter to me. The State shouldn't be enforcing the Church's principles back on it. First off, churches often won't agree with the specific contours of the anti-discrimination laws that we have (for example, I think the Methodist Church practices affirmative action for women in ways that violate Title VII). Second, churches often have their own investigatory processes for these things. Churches have church courts, which become entirely irrelevant if ministers can ignore them and go to federal ones. Third, churches should have the right to determine how committed they are to the right in question. Protestant churches often ordain women, but the reason why massive gender imbalances remain is because they are committed even more strongly to the idea individual churches should get to choose who gets to be their minister.

As for (3), I think just giving damages is still a problem. Awarding damages still means that the government has decided that the plaintiff really is the Church's minister, despite what the Church says. And courts sometimes award front pay for 20 or 30 years. That's a huge imposition. The essence of the Establishment Clause was that you don't have to pay for a minister that isn't your minister. But that's exactly what an order of front pay does: The Church has to pay for the State's minister and then find other money to pay for their own.

I know how crazy this sounds. I know I will solidly out-liberal basically everyone on MOJ. But I've ended up thinking about the ministerial exception in the same way I think about the statute of limitations. No one will ever defend it, because it serves broad, abstract goals that widely benefit all of us, while imposing concrete costs on identifiable individuals.

Posted by: Chris Lund | Feb 26, 2011 2:01:55 PM

Marc, quick question. You suggest that "some degree of inquiry is warranted even in cases where one might be dealing with an employee who performs clerical functions, provided that one had very strong evidence on grounds like these."

This is a good point for me to ask you what your vision of the ME is. Are you thinking about a heightened standard of proof (i.e., beyond a reasonable doubt) for ministers bringing claims of discrimination? It's an interesting idea.

Posted by: Chris Lund | Feb 26, 2011 2:12:35 PM

Chris -- your response is, as usual, thoughtful. And I do not think at all that a robust view of the ministerial exemption is necessarily "out-liberal[ing]" anyone. Indeed, I know many impressive folks on the left who oppose the ME entirely, and at least a few on the right who take a very strong view of the inviolability of the ME.

All that said, I disagree, largely because of my own priors, which tend (stop me if you've heard this before...) to foreground the clash of values of religious liberty and, in consequence, a less absolute position. The reasons I oppose, as you say, a categorical rule, are largely the reasons that I oppose categorical rules in this entire sphere: I think that there are legitimate oppositional values in conflict and I am unwilling to say ahead of time and in the abstract that one or another should have categorical preeminence (book coming soon...Deo volente!).

Nevertheless, I agree that for historical reasons as well as reasons of non-entanglement (and other reasons), there ought to be a high evidentiary threshold for plaintiffs who wish to bring discrimination claims in the face of the ministerial exemption. But ultimately, for me, the question of whether those claims succeed (within the limits of my high threshold) would depend on the particulars of the claims being asserted: what the duties of the plaintiff are, what the nature of the claim looks like, what the remedy being sought is, what the doctrine of the religious organization prescribes or is silent about, and so on. And, finally, yes, I do think that a higher standard of proof (or even a higher pleading standard) might be one way to delimit the number of these sorts of claims that were successful.

If anything, my friend, I think I am "out-liberal[ing]" you, though I guess this might be one of only a few areas that this might be true (but there may be a few others!).

Posted by: Marc DeGirolami | Feb 26, 2011 10:30:51 PM

Marc, delightful to talk with you as always. Your approach certainly suits your careful, thoughtful, moderate style. It is compromising in the very best sense of the word.

But here is my concern. Smith devastated the Free Exercise Clause, and at the heart of the Court's opinion was a concern about judicial manageability. Your characteristically sensitive, multifaceted approach works well for academics; we love to propose grand theories that incorporate all the various concerns and balance them appropriately against each other. But I think we need to offer the Court a judicially manageable approach to church autonomy or we will have another Smith on our hands and you and I will have to organize conferences with titles like, "The Death of Church Autonomy." That's why I support a simple flat ministerial exception with no exceptions and no balancing (except for the threshold question of who is a minister). It's not pretty. But I think it's the best we can do.

Posted by: Chris Lund | Feb 27, 2011 11:11:48 AM

Chris, you may be right...and it's a powerful criticism of my general approach that it demands things that courts are not well equipped to do, or otherwise should not be doing.

Interestingly enough, I think that it's academics and intellectuals who are more inclined toward clean, single value approaches and rules with hard edges (not all, of course, but many) than courts. Courts that proceed by something like the common law method are doing -- more or less, with tweaks here and there that I'd like to make -- something along the lines of what I think they ought to be doing. Parsing, distinguishing, complicating, taking the messiness of religion clause disputes and doing the best they can with it.

I do agree that Smith was a bad decision (I know some sharp and wise folks on MOJ don't agree, but that's a subject for another day!)...and yet, I wonder whether in the end, after RFRA, state RFRAs, RLUIPA, and lower court interpretations of Smith that are, shall we say, liberal, Smith hasn't really done as much damage as it portended (Nelson Tebbe does some good work on this issue in a piece on nonbelievers that is really terrific and coming out soon, I think). In the end, the monumental messiness always, thankfully, creeps back into judicial opinions.

Thanks again for sharing your thoughts.

Posted by: Marc DeGirolami | Feb 27, 2011 12:41:19 PM

Dear Marc and Chris: Smith was, I'm afraid, correct. Love, Rick. =-)

And, w/r/t to the ME, I guess I'm one of those absolutists, *within* the relevant domain. So, a coffee-shop chain owned in part, for investment purposes, by a religious order is not covered; a Christian-formation director at a parish is covered, and -- if we take religious freedom seriously -- a civil court should not second guess the parish pastor's decision to end his or her employment as a Christian-formation director. Such a court should take *particular* care to avoid getting into the business of whether the relevant religious teachings were "correctly" interpreted or applied by the pastor.

Posted by: Rick Garnett | Feb 28, 2011 7:53:16 AM

You see, Chris? I told you that you were not really a liberal. ;)

I wonder how much the way that you and Rick are formulating the issue differs in practice from the way I think about it, since Rick's absolute view depends on being within the relevant range. So does mine (I have no argument with the coffee shop example). One might say that the difference of views isn't really all that deep, because the work is being done for Rick by determining whether one is within the relevant range, or for Chris as what he calls a "threshold question," whereas for me it's being done thereafter. Actually, Rick and Chris's respective approaches could well be two different sorts of inquiries, because Rick might be open to considering more sorts of factors as affecting the determination of whether we are within the relevant range, whereas Chris might only be focused on the question of whether the employee could be designated as ministerial.

This reminds me a little of my general approach to the Establishment Clause too. Most people hold the view that once one decides that a dispute crosses the threshold of the Establishment Clause, there is no exercise of judgment to be had thereafter, because the command of the EC is absolute. That *might* only mean that we have shifted the locus of dispute one step earlier -- to thinking about what the EC's compass is. If that's right, then there really is little difference. But I think that by doing this, we can (sometimes, though certainly not by you guys!) artificially truncate or chop off a more fine-grained discussion about what ought or ought not to prevail. I guess that ending debate is part of, though of course not entirely, the point.

Posted by: Marc DeGirolami | Feb 28, 2011 9:10:19 AM

Tubra was denied cert today, and Hosanna-Tabor has been relisted for this Friday's conference.

Posted by: ER | Feb 28, 2011 2:46:51 PM

I guess Rick and I are doing categorical balancing, while Marc is doing case-by-case balancing. (Are those the right terms?) But I actually agree with Rick--whether someone is a minister can't be the only threshold question. For one thing, the employer also has to be religious, which raises a number of other issues that Rick gets into (remember the 9th Circuit World Vision case, anyone?).

I guess there's two other ministerial exception cases being considered along with Hosanna-Tabor at next week's conference. Is a grant on one of those cases inevitable?

As for those remarks about Smith apparently designed to agitate me, I let them stand without comment. Except to say you are all wrong... =)

Posted by: Chris Lund | Feb 28, 2011 6:54:56 PM

Ah! Here's the answer I was looking for about what happened to Hosanna-Tabor today. Thanks!

And I should clarify that I did read this thread the other day, though my remarks and dimwittedness on prawfsblawg may have indicated otherwise.

Great stuff!

Posted by: Jim von der Heydt | Feb 28, 2011 9:06:02 PM

Ah! Here's the answer I was looking for about what happened to Hosanna-Tabor today. Thanks!

And I should clarify that I did read this thread the other day, though my remarks and dimwittedness on prawfsblawg may have indicated otherwise.

Great stuff!

Posted by: Jim von der Heydt | Feb 28, 2011 9:06:02 PM