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.

Monday, March 28, 2011

Here we go! The Court grants cert. in the ministerial-exception case

Today, the Supreme Court agreed to hear (what I think is) the most important religious-freedom case in 20 years.  The Supreme Court this morning granted cert in Hosanna Tabor Church v. EEOC.  (More here, at the Religion Clause blog.)

The case does not involve what’s become the usual stuff of the Court’s church-state caselaw:  prayer at football games, war-memorial crosses in the desert, manger scenes and Ten Commandments monuments in public parks.  Nevertheless, again, this case is huge, and it is about, at its heart, what really matters.

The question in the case is whether antidiscrimination laws – like, for example, the Americans with Disabilities Act – allow courts to review hiring-and-firing decisions involving “ministerial employees.”  In this particular case, a lower federal court had ruled that parochial-school teachers who teach primarily secular subjects are not “ministerial employees”, and therefore are covered by the Act.

 The Supreme Court should reverse this decision.  Although there are many difficult questions to be asked, and many fine lines to be drawn, when it comes to interpreting and applying the First Amendment’s religious-freedom guarantees, it cannot be the role of secular government to second-guess the decisions of religious communities and institutions about who should be their ministers, leaders, and teachers, any more than they should review their decisions about the content of religious doctrines.  To be sure, not every employee of a religious institution is a “ministerial employee”, and religious institutions – like all employers – have many legal obligations to their employees.  The point is not that religious institutions and employees are “above the law” but rather that there are some questions – such as, who should be this religious community’s minister? -- that our Constitution’s First Amendment does not allow secular government to answer. 


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I have noted that many dioceses, archdioceses, branches of Catholic Charities, and other Catholic religious organizations advertise themselves as Equal Opportunity Employers. Is it fair to advertise as such when, if an allegation of discrimination comes along, the organization accused of discriminating would be exempt from any kind of government enforcement?

I am almost certain the Archdiocese of New York had "equal opportunity employer" on its home page, but it is now nowhere on the site.

Posted by: David Nickol | Mar 28, 2011 11:58:13 AM

David, in my view, as a general matter, religious institutions should take prudent (and transparent) steps to be sure that their contractual arrangements with "ministerial employees" reflect the fact that the First Amendment limits the ability of civil authorities to review some decisions regarding these institutions' relationships with such employees.

Posted by: Rick Garnett | Mar 28, 2011 12:02:33 PM

Very good news, indeed!

And welcome to Prof. Moreland!!

Posted by: Marc DeGirolami | Mar 28, 2011 12:07:03 PM

I have little doubt that the impetus for pushing this case -- with its less than attractive details -- is to create precedent for denying equal opportunity for positions with even minimal "ministerial" functions so that denominations so disposed will attach little bits of "ministerial duty" to every single position they can.

Posted by: BobN | Mar 28, 2011 1:53:17 PM

BobN -- Really? Putting aside what might or might not have been the actors' motives in this particular case, you really don't think that those who are "pushing" this case (that is, arguing that the Court review it, so as to clarify an important question) are motivated by the view that, actually, a legal regime that is committed to religious freedom is one that will allow religious schools to hire and fire religious-school teachers without being second-guessed in anti-discrimination lawsuits?

Posted by: Rick Garnett | Mar 28, 2011 2:17:12 PM

Yes, really. Based on comments and reports from various "conservative" religious and political organizations, yes. While it is entirely possible that this case is very, very important to religious schools which have lay teachers and "called" teachers, the interest from, say, Catholic organizations is harder to understand. Having grown up attending parochial schools, I've seen religious schools operate quite well while abiding by anti-discrimination law.

Why the "Here we go!"?

Posted by: BobN | Mar 28, 2011 2:36:16 PM

I think it's a mistake to conflate the religious decisions inherent in hiring a minister or other "ministerial employee" with the secular concerns. Just because a position is religious in nature (and it would be improper for the government to interfere with religious decisions) does not mean that any government review of the hiring is improper.

Discriminatory hiring is generally recognized as an illegitimate exercise of the general right to hold certain beliefs. We don't think that forcing a racist to hire blacks is a violation of his right to free expression, and we likewise shouldn't think that a racist church refusing to hire blacks (or a cheap church refusing to accomodate the disabled) is a legitimate use of their free exercise rights.

Once we acknowledge that churches, insofar as they participate in the employment market, can't legitimately discriminate in certain ways, the fact that positions have protected-religious roles doesn't mean that the government can't (carefully) step in to correct abuses of the secular/public aspects of the hiring.

Posted by: Andrew MacKie-Mason | Mar 28, 2011 2:54:09 PM

"Here we go" meaning, "now it begins, a debate in the Court about an important question that has been long neglected by that Court." If you think that non-discrimination-laws are not capable of being used (and abused) in suits against Catholic schools, parishes, etc., then I'm afraid you're mistaken. It's not that Catholic entities should have any interest in discriminating on the basis of age or disability or race; it's that it is too easy for a lawsuit to allege such discrimination, and thereby get the courts involved in deciding whether the "religious" reasons for the action are "good enough."

Posted by: Rick Garnett | Mar 28, 2011 2:56:05 PM

Andrew, it is true, yes, that religious institutions cannot "discriminate in certain ways" . . . with respect to certain positions. Some positions, though, involve considerations that, it seems to me, are outside the legitimate reach of anti-discrimination laws. And, there is a big gap between "forcing a racist [shopkeeper] to hire blacks" and "forcing a racist church to [ordain or hold out as a minister] African-Americans." We might well think that a church of the latter sort should not be tax-exempt, but the contexts are different. Remember, it's not about a "cheap church" not wanting to accommodate the disabled; it's about judicial review of employment decisions involving *certain* (not all) positions.

Posted by: Rick Garnett | Mar 28, 2011 2:59:10 PM

In what sense "long neglected"? Is there a backdrop of many cases wrongly decided (in your view)?

'it is too easy for a lawsuit to allege such discrimination, and thereby get the courts involved in deciding whether the "religious" reasons for the action are "good enough."'

As I understand it, the question decided is rarely whether the religious reason is good enough but rather whether the job is "religious enough".

Posted by: BobN | Mar 28, 2011 3:18:56 PM


Do religious organizations make it clear at the outset (when hiring) what positions it considers ministerial and which not? And if some organization chooses to stretch the definition of ministerial to absurd lengths, who may contradict them?

I work in a company with a very small, very weak union. But a number of times the company has tried to define certain job categories as exempt (meaning employees in those positions would not be in the bargaining unit and could not join the union), and arbitrators have ruled the company was out of line. I would think employees of most religious organizations are even more powerless than my company's weak union. I can certainly see why a religious organization would want to have absolute say over a purely "ministerial" position, but is there no way to permit that without providing some guarantees for those who are not "ministerial" but whom the organization wishes to classify thus for the purpose of giving them a free hand in firing and other decisions?

Posted by: David Nickol | Mar 28, 2011 3:22:59 PM

Certainly in the case of Catholic schools, there is a cause for concern if the gov't decides it has the right to determine which teachers are 'religious' teachers or not. True Catholic schools teach every subject from the perspective of Truth- Christ centered and reflective of Catholic families and culture. (Not all do, but all Catholic schools should re : http://www.zenit.org/article-26802?l=english ). Since the school is trying to impart a well rounded Catholic culture and environment, it would seem counter-productive to hire those who are not faithfully practicing Catholics - something the gov't cannot determine. Even a gardener who is known to live a life in opposition to Catholic moral teachings, will have an impact on the children, staff and parishioners. Where shall the line be drawn?

Posted by: lwestin | Mar 28, 2011 5:20:52 PM

"Even a gardener who is known to live a life in opposition to Catholic moral teachings, will have an impact on the children, staff and parishioners. Where shall the line be drawn?"

And there we have the reason so many are so anxious for the courts to change how the law is applied.

Christ-centered gardening. Marvelous.

Posted by: BobN | Mar 28, 2011 5:29:48 PM

Andrew MacKie-Mason: You're missing the fact that anti-discrimination laws only work if secular courts are capable of deciding what is or not an occupational qualification and if they can somehow determine whether someone is or is not doing a job well.

How do you think a synagogue could operate if they were required to give non-Jews an equal opportunity to be rabbis? How would such a thing even work? Discrimination laws work in a non-religious context because the question of what is or is not a legitimate occupational qualification and how well a person can do a job can be measured and assessed by secular courts. If secular courts cannot determine what is an occupational qualification or determine whether or not a person is doing their job well, which they clearly cannot in the religious context, how could anti-discrimination laws possibly work?

Posted by: David Schwartz | Mar 28, 2011 6:11:09 PM

In respect to the two examples given: As repugnant as we find white supremacist churches, a decision that such a church can be requried to hire a black would put a statutory right to be employed above a Constitutional right to freedom of religion. That would be a grave thing.

And a church might have reasons other than stinginess to not accomodate a disabled employee, though I'm hard-pressed to think of one. Unless it's that, for the cost of accomodating a disabled employee, the church could assist ten disabled non-employees?

I'll posit a third example. A church desires to assist poor members, but is reluctant to institute a simple dole, for reasons deeply rooted in the work ethic taught by the church. So it expects those assisted to do odd jobs around the church in return for the assistance. Are those being assisted now employees? Must they be paid minimum wage? Are there payroll taxes? If so, what does this do to the incentive structure for the church to continue assisting members in this manner?

Posted by: Vader | Mar 29, 2011 6:31:39 PM

It's hard to see a justification, at least in the abstract, for excluding positions, rather than requirements, from court review.

For instance: say a Lutheran sought employment as a minister at a Methodist church, claiming that the belief systems are similar enough that he can perform the job. The church decides he can't. That's a matter of religious doctrine and belief, and I have no problem excluding it from civil review.

On the other hand, suppose there's an eminently qualified candidate (and the church admits as much), but they won't hire him because they don't want to accomodate a blind minister. And suppose, for the sake of the argument, that the church admits that the only reason he wasn't hired was because of the cost of accommodation, a cost that could reasonably be imposed on a secular employer.

Can anyone think of a "religious freedom" reason why the church should be able to act in this way? I certainly can't, but the "ministerial" exception would legitimize this discrimination, because the exception isn't well thought out or based on a principled reading of the First Amendment. It's a extremely poor-fitting patch on a complicated problem.

Vader, what "Constitutional right to freedom of religion" are you specifically referencing? Forcing a white supremacist church doesn't interfere with their free exercise of religion, so long as the black minister faithfully preaches the teachings of their religion (a requirement I would be perfectly fine with.)

There's no principled reason to limit the ministerial exception to churches (rather than religious employers in general) and no reason to limit it to religions rather than any other sort of belief system. In other words, trying to apply the exception uniformly would completely destroy antidiscrimination law.

Posted by: Andrew MacKie-Mason | Mar 30, 2011 1:33:05 AM

Andrew: The church is conceding that they believe they would be better able to accomplish their religious mission without accommodating the blind minister than with accommodating him. To find against them, you would have to find that the accommodation doesn't compromise their religious mission despite their contrary claim. Please explain how a secular court could do that.

Posted by: David Schwartz | Mar 30, 2011 2:01:30 PM

"... so long as the black minister faithfully preaches the teachings of their religion"

See, that's the problem. A secular court cannot possibly judge whether or not a minister is faithfully preaching the teachings of a religion. Forcing an organization to accept a court's judgment of what's a faithful preaching of their religion over their own offends free exercise.

All of these laws are premised on the ability of secular courts to determine occupational qualifications and performance. They cannot do this in the religious/ministerial context.

Posted by: David Schwartz | Mar 30, 2011 2:03:48 PM

When any church has implicit immunity, a "get out of jail free" card based upon the doctrine of Ministerial Exception, most judges are reluctant to hear any complaints of any social injustice, including those associated with pedophile ministers, knowing that the judge could suffer political embarrassment when the appellate courts could overturn their original findings.
If the matriarchs of religious institutions are not accountable, injustice is entirely inevitable without recourse to the public interest.
Victims are routinely warned by their attorneys that their cases are futile and, therefore, a very small percentage of citizens are willing to fight for their, and their neighbors' human rights in an American court.

Posted by: Bludso | Mar 31, 2011 9:20:24 AM

David, a secular court could decide if the church is putting forward a good-faith claim of a religious reason without ruling on any religious matters. A mere assertion that "this hurts my ability to exercise my religion" is never enough, and courts inquire into that sort of thing all the time (for instance, when inquiring if a professed religious belief is sincere for religious exemption purposes). So, please: what claim would a church make that hiring a blind minister would hurt their religious mission?

(Note, of course, that mere financial hardship isn't enough. If it is, then there's no reason to limit the ministerial exception to ministerial employees, and it's been long recognized in American law that religious institutions have no constitutional claim to be free of generally applicable financial burdens. Tax exemptions are a matter of privilege, not of right, and likewise with financial burdens caused by disability accommodation.)

"See, that's the problem. A secular court cannot possibly judge whether or not a minister is faithfully preaching the teachings of a religion. Forcing an organization to accept a court's judgment of what's a faithful preaching of their religion over their own offends free exercise."

You're misinterpreting what I said. If the church made a good-faith claim that a certain minister did not adhere to their beliefs or would not faithfully preach them, then the court should be allowed only to inquire into whether that claim is reasonable or a pretense. The court must accept statements about individual beliefs presented from both parties.

Posted by: Andrew MacKie-Mason | Mar 31, 2011 2:02:51 PM

David, "All of these laws are premised on the ability of secular courts to determine occupational qualifications and performance. They cannot do this in the religious/ministerial context."

That's patently not true. There are some qualifications of ministerial employees that courts cannot judge, but there are other, secular qualifications that they can judge. That's why I'm arguing for courts not judging certain types of disputes or accepting certain religious claims at face value, rather than a silly and poor fitting attempt to classify entire positions as religious or non-religious.

Posted by: Andrew MacKie-Mason | Mar 31, 2011 2:04:43 PM

Andrew, the suggestion that a court could inquire into whether a church's claim that a particular person was not fit to be a minister of that church is "reasonable" is the one that I think David (and I) regard as misguided. It is, it seems to me, the nature of the position -- and the relationship that exists between that position and religious authority / doctrine / teaching -- that makes questions about who may, or may not, hold that position simply not (under a regime of church-state separation) justiciable.

Posted by: Rick Garnett | Mar 31, 2011 2:08:19 PM

Forcing a white supremacist church doesn't interfere with their free exercise of religion, so long as the black minister faithfully preaches the teachings of their religion (a requirement I would be perfectly fine with.)

Only if you take a hyper-Protestant position that religion is purely a matter of what is taught and has no ritual or performative elements. If you can't see the absurdity of a black preacher preaching to racist whites that blacks should not be allowed to preach, then I'm afraid your dogmatism is invincible.

Posted by: Adam Greenwood | Mar 31, 2011 2:09:33 PM

The alternative to not accepting religious claims at face value is for secular courts to investigate the truth or falsity of religious claims. I honestly cannot imagine how that could work.

And what of the Catholic church who claims that their leadership traces its authority through the Pope and to God? They can assert that the Church's sole purpose is religious and everything it does in that context has religious significance. Every action they take says that this is consistent with their religious values, in furtherance of their religious mission. They make every decision by asking "is X in accord with our religious values or is Y" or "can we best further our religious goals if we do X or if we do Y"?

And even if you say we can treat these claims with suspicion, they are true statements of the church's reasoning, policy, and goals. So all the suspicion in the world won't get you anywhere.

Posted by: David Schwartz | Apr 1, 2011 2:46:44 PM

I'm in need of more information to make my own decision on this (and I agree that it is a very important case): 1-what claims to being an EEO employer has the diocese and the school made? 2-what does the individual teacher's contract say regarding support of the church's doctrines, practices, etc. and contrary views? 3-How, if at all, does the school define "ministerial employee"?
Even with these questions answered in a way that suggests grounds for the school's actions, I doubt that the grounds would be sufficient to support the lower court ruling.

Posted by: William Krieger | Apr 3, 2011 3:34:36 PM

Rick, a "reasonableness" inquiry is, I think, necessary if we're going to acknowledge any limits at all to the religion clauses. It's already permitted in many other areas of religion-law: that is, courts are empowered to enquire whether private citizens' claims for religious exemption are based on a reasonable or good-faith claim of religious belief.

If we don't allow any inquiry into reasonableness, there would be nothing wrong with a church claiming one day that its religious doctrines prohibit female preachers in order to fire one employee, and the next day that its religious doctrines prohibit male preachers to fire another. Once a reasonableness/good-faith inquiry (one that can clearly be performed with the utmost respect to the religious beliefs and freedom of everyone involved) is out the window, basically any claim under the sun can be made non-justicable.

Adam, I agree that that situation is ridiculous, and that's part of the reason why I think it will never happen.

However, I don't see a protection for the so-called "performative" aspects of religion in the constitution when those "performative" aspects are brought about through involvement in the communal marketplace economy.

If preaching were a volunteer activity, there would certainly be very broad free-exercise protection for choosing preachers. But religious freedom has to be secondary to general marketplace restrictions: for instance, a religious community cannot (I believe?) claim a free-exercise defense to purchase and smoke marijuana as a part of their rituals, or to counterfeit money for the purposes of paying its chaplains, or to avoid taxes on goods purchased, or to buy from overseas in contravention of trade embargoes...etc.

If you're paying someone, and thus making use of the public economy, your rights of how to do so become restricted.

Posted by: Andrew MacKie-Mason | Apr 3, 2011 11:32:44 PM

If a church's leadership claims that they pray and then they become firmly convinced of what is the right thing to do in every case because they believe God is telling them the right choice, what is unreasonable about that? That is not very different from what Catholicism holds.

Aside from it's absurdity, the idea of this kind of 'reasonableness' inquiry into religious beliefs just favors those religions that hold the most arbitrary, all-encompassing beliefs that consolidate as much power as possible in the unquestionable religious authority of their leaders. This is the opposite of sensible public policy.

Posted by: David Schwartz | Apr 4, 2011 3:46:06 AM

David: if that were actually the standard practice of the church (which a secular court could enquire into without improper entanglement in religious matters) then I don't think it's a serious issue with public policy. While the employment discrimination law might favor such a church, there are enough forces working against it (like the fact that it wouldn't be able to attract substantial membership or funds) that it won't ever be realized.

Posted by: Andrew MacKie-Mason | Apr 6, 2011 12:39:34 AM

I think most mainstream religions can make a plausible claim that everything they do in the context of their church and its operation is a religious decision that they make in terms of what decision best furthers their religious mission. Every time a Christian church makes a decision of the form "should we do X?", the question they ask is whether X is consistent with their religious goals and values and whether they can best accomplish their religious mission if they do X or if they don't do X. Freedom of religion is a guarantee in the Constitutional. Laws against private discrimination are just statutes. It is quite clear which must yield.

(And, by the way, I would make substantially the same argument in the secular context, except it would be freedom of association that I would argue would trump laws against private discrimination. When genuine human rights conflict with mere public policies, it is the policies that should yield.)

Posted by: David Schwartz | Apr 6, 2011 10:14:43 AM

Even when a church makes decisions meant to advance its religious goals, there's a legitimate difference between "we should do this thing because it's cheaper and will allow us to spend more money on this religious thing we want to support" and "we should do this thing because it is more directly in line with our religious teachings than this other thing." That's also a difference that courts can inquire into.

Yes, unscrupulous churches, like unscrupulous employees, can disguise their motives to get around the law. But that doesn't mean there's a fundamental flaw with the law.

Consider this hypothetical: a minister has been working at a church for years when he has a tragic accident and looses the use of both legs. He can still function, but requires the use of a wheelchair.

The church does not assert that the minister's ability to perform his job in any way, nor do they assert that the needs or expectations of the congregation have changed in any way. Indeed, they admit that they only reason they terminated his employment was so as to avoid incurring the cost of making their sanctuary and offices handicap accessible.

There's no religious principles involved. It's a secular dispute between two effectively (in the context of the dispute) secular entities. And yet, the flawed position-centric exception would preclude a court from looking into the matter. (But may, at the same time, allow a court to force a church to hire an individual who expresses hate for the religion and open contempt of all systems of belief.) How does this make sense, and how do you ground it on one of the religion clauses?

As to your more general constitutional claim, there's no reason we need to read the religion and association rights to guarantee unfettered access to the public resource that is the employment market. I take it you wouldn't argue that ministers should be exempt from highway tolls while traveling too and from church? Or that a church may claim a portion of the sidewalk to hold daily meetings in a way that interferes with others' use of that sidewalk? Or that a church may tap into city water mains for free in order to fill its baptismal chambers?

Posted by: Andrew MacKie-Mason | Apr 6, 2011 1:10:16 PM

Employers have an obligation under the Safety, Health and Welfare at Work Act to provide employees with a safe environment in which to work. Where he fails to implement health and safety regulations, and you suffer an injury in workplace accidents, you are entitled to claim for workplace accidents compensation.

Posted by: workplace accident claims | Apr 7, 2011 8:21:01 AM

Andrew: So, how can we answer your hypothetical of the injured minister? We have to look at whether the accommodations are reasonable. Certainly the accommodations will result in some harm to the church's ability to accomplish its religious mission. The question is just how much harm that will be. So we have to compare the religious effectiveness of the church with the minister to the religious effectiveness of the church without him. How does a secular court do that?

Fundamentally, these types of laws are premised on it being objectively possible to assess how well a person can do their job and how well an organization can do its job. If there is *any* dispute over how these laws apply, those are the two sides that the dispute will be about. The only questions are: Can he do his job? Can we do our job if we make the accommodations?

Neither of these questions can be answered by secular courts. You would need the Church to concede that it could accomplish its religious mission with substantially equal effectiveness either way.

Posted by: David Schwartz | Apr 7, 2011 7:44:53 PM

David, I've rewritten my answer to you a few times, and I think it's because I'm unclear on what, precisely, you're arguing. Which of these (or another argument) is a better characterization of your argument?

* The government cannot enforce any generally applicable laws against a church that may hinder its ability to perform its religious function.

* Courts cannot make the specific inquiry about "reasonable burdens" required under antidiscrimination laws, because the burden is related to the church's religious mission.

Posted by: Andrew MacKie-Mason | Apr 8, 2011 5:44:12 PM

The latter. The government absolutely can hinder the ability of churches to accomplish their mission through laws of general applicability. However, they cannot do so through any law that requires balancing the affects of the law against the church's ability to perform its religious mission. It is this balancing that the government may not do.

A burden is "reasonable" (in ADA terms) if it doesn't significantly affect the ability of the company to accomplish its corporate mission. In the case of a church, the mission is purely religious. There is simply no way to determine whether an ADA burden's affect on a Church's ability to accomplish its religious mission is "reasonable" or not.

In this case, the conflict is between a statute and a Constitutional right. The right of a Church to ministers of its choosing is Constitutional. The ADA is mere statute.

Posted by: David Schwartz | Apr 9, 2011 7:21:47 PM

Let me just try to follow this train of thought for a moment without engaging the larger questions. Are you saying that you would have no problem with an ADA-type law that had no element of reasonable burden (or, at least, that you would consider such a law constitutional?)

That is, if the law said that all disabilities must be accommodated, regardless of the expense or difficulty to the employer, there would be no free exercise problem. But if the law frees organizations, including churches, of that obligation in certain cases, the law becomes more restrictive of their free exercise?

Posted by: Andrew MacKie-Mason | Apr 11, 2011 5:09:22 AM

No, I'm not saying I would have *no* problem with that kind of law. I wouldn't have this particular problem.

Posted by: David Schwartz | Apr 11, 2011 6:22:58 PM

But you would find such a law constitutionally permissible, at least with regard to the religion clauses?

And, just to clarify, you're basing your objection to the reasonableness balancing test on the free exercise clause, correct? Or is it the establishment clause?

Posted by: Andrew MacKie-Mason | Apr 11, 2011 9:23:11 PM

No, I didn't say I would find such a law constitutionally permissible with regard to the religion clauses. I said this particular objection wouldn't apply to such a law.

For one possible objection to the Constitutionality of your hypothetical law, see Church of Lukumi Babalu Aye v. City of Hialeah. For example, a ban on cannibalism is perfectly acceptable even if it prevents some religious practices entirely because it passes this test, but a ban on ritual sacrifice (that permits similar sacrifices for other purposes) is not. If the government removed the reasonableness requirement just for churches, or did so just to ensure churches were covered, then the law could run afoul of the free exercise clause.

But another objection might come from the many court holdings that the right of churches to choose their religious leaders is near absolute. The court would essentially be deciding, in your hypothetical, which religious leader a church should have. There are quite a few cases that suggest that this is out of bounds for a secular court. (For example, Kedroff v. Saint Nicholas Cathedral.)

Courts have held that this is not found in any one particular Constitutional doctrine but arises from the union of the rights to freedom of association, free exercise of religion, and the prohibition on government entanglement with religion.

My objection to the reasonableness balancing test is based on the line of cases that says that secular courts cannot evaluate, at all, matters that are quintessentially religious. Whether an ADA accommodation unreasonably burdens a church's religious mission is a quintessentially religious question. See, for example, Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, Watson v. Jones, and many other cases.

The balancing test the ADA demands simply cannot be used by secular Courts to weigh a financial cost against a religious burden. Evaluating the significance of religious burdens so that they can be compared against dollars is Constitutionally out of bounds.

For example, a law can demand that a sincerely-held religious belief must be accommodated by an employer if it is commercially practical for them to do so. But it cannot demand that a religious belief be accommodated if the religious significance of the accommodation exceeds the burden on the employer. That is an impermissible (and borderline nonsensical) measurement to be made by a non-adherent to the religious view in question. Nor can it extend the "commercially practical" test to "religiously acceptable" when the employer is a church.

Posted by: David Schwartz | Apr 12, 2011 2:17:15 AM

David, I believe that your concerns about ADA and other similar claims against churches is based on a fundamental misunderstanding of what an undue burden is in the context of employment cases.

It doesn't have to do with a burden on the purpose of the employer, so to say, in the sense that would make application to churches automatically involve religious questions.

ADA, for instance, is specifically about commercial burden, and there is no reason that that cannot be applied to a church that asserts that it cannot accommodate a disability because of the financial burden involved in accommodation. Churches are commercial employers just like any other.

For a review of some case law:

* EEOC v. Amego, Inc. 110 F.3d 135 (1st Cir. 1997) -- accommodation of a depressed employee at a caretaking service that would involve preventing her from distributing or accessing medicine would be unreasonable not because the purpose of the company is essentially medical, but because the additional staff that the employer would be required to hire would not be reasonable based on their size and financial resources.

* Frumusa v. Zweigle's, Inc. 688 F.Supp.2d 176 (WDNY 2010) -- moving employee's office to the first floor because of physical disability would impose an undue burden on employer because sensitive documents which the employee handled as part of his duties could not be secured on the first floor, and other materials required for the job were also on the second floor.

* Reed v. LePage Bakeries, Inc. 244 F.3d 254 (1st Cir. 2001) provides a nice statement of the "reasonable accommodation" and "undue burden" questions: "In order to prove “reasonable accommodation,” a plaintiff needs to show not only that the proposed accommodation would enable her to perform the essential functions of her job, but also that, at least on the face of things, it is feasible for the employer under the circumstances.5 If plaintiff succeeds in carrying this burden, the defendant then has the opportunity to show that the proposed accommodation is not as feasible as it appears but rather that there are further costs to be considered, certain devils in the details."

The bottom line is that reasonable accommodation and undue burden are standards that are based on the financial cost to the employer and any special requirements of the position that an accommodation cannot provide for. While the latter part may, at times, involve non-justicible questions of religious doctrine, it will not do so uniformly, in a way that justifies a blanket exception.

A few other miscellaneous points:

* No matter how much supporters of the ministerial exception protest, anti-discrimination law does not really involve a determination about who a group's leader will be. Instead, it merely tells a group that there are certain factors they cannot consider in making employment decisions. That's a very important distinction.

* When you say: "Courts have held that this is not found in any one particular Constitutional doctrine but arises from the union of the rights to freedom of association, free exercise of religion, and the prohibition on government entanglement with religion." you have to realize that the further and further you move away from the actual Constitution, the less and less persuasive your argument becomes. You're getting to at least three steps removed, since there's no actual Constitutional prohibition on "government entanglement with religion" - it's derived as a rough test for the establishment clause. You're getting to the point where you're basically saying that by using the word "religion" you automatically win constitutional arguments. If you can't make the connection from the constitutional text to the principle you're arguing, then you've basically lost the argument. (Not necessarily as a matter of common law - in the courts, the precedent does carry weight. However, I don't deny that there's precedent on your side, and that (all?) the circuits have recognized the ministerial exception. My point is not that it's not law, but that it's poorly thought out, badly developed, and just plain stupid law.)

* I can't see anything in your doctrine that limits the ministerial exception to ministerial employees. For that matter, I can't see anything that limits it to religious institutions. It seems like one could make just as strong (weak) an argument for the same exception in any business that claims that part of its reason for existence is religious.

Finally, let me return to a hypothetical I used above that I haven't seen a satisfactory answer to. Preacher becomes confined to a wheelchair, requests that chapel be made handicapped accessible. Church refuses, saying that it will cost too much, and replaces him.

What religious argument could they make? What religious questions would be involved in the undue burden test? Like in the cases I cited above, the analysis would be based on the cost of the accommodation, the size and financial means of the church, etc. No religion involved, whatsoever, but the ministerial exception would still prevent adjudication.

Or does money magically become "holy money" when it's possessed by a church such that the state can no longer touch it? :)

Posted by: Andrew MacKie-Mason | Apr 13, 2011 3:33:12 AM

So then how do you evaluate whether the cost to the Church is "too much"? What do you compare it to? If the cost is $20,000, what's the test whether that is "too much" or not?

How do you determine whether an accommodation is "feasible under the circumstances"? Is it "feasible" to command a Church to employ a minister when the religious conviction of the Church administration say otherwise?

"Finally, let me return to a hypothetical I used above that I haven't seen a satisfactory answer to. Preacher becomes confined to a wheelchair, requests that chapel be made handicapped accessible. Church refuses, saying that it will cost too much, and replaces him."

That's a religious argument. They are saying that if they pay those costs, their ability to accomplish their religious objectives will be compromised. So how do we evaluate whether that cost impacts their religious objectives in a way that is reasonable or unreasonable?

What is a "reasonable burden" to a fundamentally religious exercise? How do secular courts determine that?

It's easy to decide if something is 'feasible' for a business. You can, for example, compare the costs to their profits. If they can still operate their business substantially the same way, it's still feasible.

Here's a simply hypothetical -- consider a law that prohibits the use of the term "drugstore" unless a business employs a licensed pharmacist. We can easily analyze the effect of such a law on a business and conclude that it's reasonable. Now consider a law that prohibits the use of the term "Jesus" in a prayer, where feasible, unless the Church is affiliated with the Roman Catholic Church. How can a secular court measure the reasonableness/feasibility of this law? How do you measure the religious burden?

"I can't see anything in your doctrine that limits the ministerial exception to ministerial employees. For that matter, I can't see anything that limits it to religious institutions. It seems like one could make just as strong (weak) an argument for the same exception in any business that claims that part of its reason for existence is religious."

For-profit companies are legally obligated to put profit above the management's personal religious convictions. And Courts have held that the limit to ministerial employees is absolute and not subject to the type of prohibited balancing test. My argument would apply to non-ministerial employees if they were subject to a balancing test against a burden to a religious mission. Secular courts cannot evaluate the feasibility or reasonableness of religious burdens.

Posted by: David Schwartz | Apr 13, 2011 5:21:52 AM

The test for whether a cost is "too much" is the same (and just as vague) as it is for any other business.

I think I see what's going on. You think, for some reason, that just because expenditures are used to advance a religious purpose, they somehow gain extra protection.

However, the level of scrutiny that would become problematic under the first amendment is not required for any business's expenditures. When a church claims that a certain accommodation will hurt their religious mission because it will divert funds, the court need not (and would not, in the ADA circumstance) look into the religious question of the value of the other activities they spend money on (say, feeding the poor) any more than a court evaluates the value of, say, a non-profit's desire to feed the poor. Instead, the court just looks at the financial cost of the accommodation and compares it to the organization's financial resources and expenditures. It makes no difference what those expenditures are on.

If you compare a religious organization to a secular one that performs the same basic tasks, just in a non-religious way (feeding the poor, 'preaching', operating group meetings, etc) you can see how to determine whether something poses an undue burden. In that determination, it doesn't matter WHY an organization does what it does - courts assume that what organizations are doing is valuable, whether they're secular or religious. It just compares the cost of the accommodation to other relevant financial factors.

"For-profit companies are legally obligated to put profit above the management's personal religious convictions."

Far, far from true. What you're essentially talking about is a fiduciary duty to shareholders, which does not apply in close to every for-profit company (and, why are we limiting ourselves to for-profits? Non-profits are also subject to non-discrimination law).

"religious burdens"

Basically, you just made this up.

Posted by: Andrew MacKie-Mason | Apr 13, 2011 11:09:43 AM

I've been appropriately chastised for the snakiness of my last comment, and for that I apologize. I still think that the idea of "religious burdens" has nothing to do with the anti-discrimination statutory schemes, and thus poses no problem to adjudication of such claims, but I should have been more respectful about that point.

On another point: even if I'm wrong about the adjudication of religious burdens issue, the "ministerial exemption" is still overbroad because it includes cases where the church makes no claim that the accommodation presents an undue burden. At the end of the day, the "ministerial exemption" seems like an attempt to avoid more difficult religion-clause determinations by creating an ill-fitting exemption. It's the courts' version of "we don't feel like taking the effort to actually deal with these cases.

Posted by: Andrew MacKie-Mason | Apr 13, 2011 12:39:40 PM

Even if you ignore the 'undue burden' issue, you still have the bigger question of whether the accommodation allows the employee to do their job when the employer says it doesn't. To find an ADA violation, the court would have to hold that with the accommodation the employee could actually do their job satisfactorily. How does the Court determine what is satisfactory job performance for, say, a Rabbi?

In the current case, the religious organization alleges that their employee was insubordinate to church officials. So the court would have to determine what type of deference and decorum it is appropriate to show to church officials or hold that churches must accept ministers that are insubordinate to church leaders. In effect, the court would have to hold that certain requirements are or are not appropriate to hold religious leaders to.

Posted by: David Schwartz | Apr 13, 2011 6:01:40 PM

No, let's not ignore the undue burden issue. I'd like to issue you a challenge: find one case where the court based an undue burden finding on the "value" of an organization's cost in a non-religious setting, such that the analogous religious case would involve an improper determination of a religious burden.

As to your other points: I've never denied that there will be discrimination claims that a court can't consider because of religious issues. What I've said is that the ministerial exception is both under- and over-inclusive in excluding cases from the courts. For that reason, specific instances where the ministerial exception may lead to the correct result proves nothing.

Regarding the specifics?

* How does a court determine whether an individual can perform job duties

It depends on the case and how the church claims that the employee is failing his duties.

If a church claims that the minister was teaching improper doctrine, that must basically be accepted.

If the church claims that a minister is, due to his disability, unable to effectively speak to a congregation (say some sort of stuttering disability) then there's no religious dispute involved and the court could apply the same standards that it would to any similar public speaking position.

As to the deference/insubordination question, the court would not actually need to "determine what type of deference and decorum it is appropriate to show to church officials..." The reason I know that is that courts need not even make that determination in civil employment:

Seldon v. Total System Services, Inc., 653 F.Supp.2d 1349 (M.D. Ga. 2009):

"An employer may discipline “an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory [or retaliatory] reason.” Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187 (11th Cir.1984). “A plaintiff must show not merely that the defendant's employment decisions were mistaken, but that they were in fact motivated by race” or gender or unlawful retaliation. Brooks, 446 F.3d at 1163 (internal quotation marks omitted). Thus, a plaintiff's “self-serving assertion that she was not insubordinate does not alone establish that she was” subjected to unlawful discrimination or retaliation, and whether Plaintiff's “conduct was insubordinate is not an issue for this Court to referee.” Wilson, 376 F.3d at 1092."

The only situation in which a firing for insubordination is going to be questioned is if there's evidence that the insubordination justification is pretextual. The law of pretext can be safely applied to the religious realm.

Any employment case in the religious context is going to heavily determined by the facts and by what each party is claiming. There will, of course, be issues that don't arise in the secular employment context, and certain issues won't be able to be resolved by the courts. But that doesn't mean that other issues can't be.

Yes, churches have an opportunity to game the system by making false religious claims to cover up invidious secular discrimination in their employment practices. However, I have some faith left in the integrity of America's religious institutions, and beyond that we should not prospectively reward them for such potential bad behavior by saying "you don't even need to pretend that this decision was because of religion, because we'll pretend for you."

It's a tricky doctrine, like all religious freedom law is (or should be). But that doesn't mean that courts should make their lives easier by inventing poorly designed exemptions. Using the ministerial exemption to deal with the intersection of religious freedom and employment discrimination is like trying to create a masterpiece in the Flemish Renaissance style: it lacks the precision and attention to detail necessary for the job.

Posted by: Andrew MacKie-Mason | Apr 13, 2011 8:44:57 PM

"The law of pretext can be safely applied to the religious realm."

I don't see how. To tell if reason A is pretextual when the decider advances alternate reason B, you have to determine if reason B alone was sufficient.

Posted by: David Schwartz | Apr 13, 2011 11:38:50 PM

"I'd like to issue you a challenge: find one case where the court based an undue burden finding on the "value" of an organization's cost in a non-religious setting, such that the analogous religious case would involve an improper determination of a religious burden."

Almost any case where the issue was whether the accommodation constituted an undue burden. The most obvious example was Barnett v. US Air. Here, Barnett requested an accommodation that would have violated US Air's seniority rules. So the question was whether compelling US Air to violate seniority was reasonable or not. An analogous religious issue would involve an accommodation violating religious rules, requiring the court to assess how important those religious rules were or what the effect of violating them would be on the church's accomplishment of its mission.

Another is Borkowski v. Valley Center -- "an accommodation is reasonable only if its costs are not clearly disproportionate to the benefits that it will produce." How do you calculate the benefits of accommodating a minister? Also, the Court had to determine what were the "essential" functions of Borkowski's job. But how do you decide what functions of a minister are "essential"? Is Communion essential or it is just a meaningless symbol?

What about Carter v. Bennett (840 F2D 63)? Here the issue was whether job performance was "satisfactory". What is a "satisfactory" performance for a Rabbi? For a Lutheran minister?

And then there's Barth v. Gelb. Here an issue was whether a policy to provide certain accommodations to existing employees, while rejecting prospective employees for requiring that same accommodation, was reasonable. This required evaluating the importance of keeping the same person in a position, the value of know how gained by employees, and the burden of employee turnover. What is the damage of a congregation getting a new Rabbi? How much value is there in keeping an experienced Rabbi over the value of having a new, perhaps more energetic, Rabbi?

All of the basic evaluations of what is reasonable and what is or isn't consistent with a mission are fair game in the secular context and off limits in the religious context. Most ADA cases require intruding into these factors.

In the case you cited, Seldon v. Total Systems Services, dealt with the truthfulness of an allegation of improper workplace conduct. But what is proper workplace conduct for a Islamic cleric? Can you think of a more fundamentally religious question? That case also required finding that the alternative, non-pretextual reason for firing was sufficient. Is being gay a sufficient reason to fire a Catholic priest? Again, can you think of a more fundamentally thorny religious question?

Posted by: David Schwartz | Apr 14, 2011 12:04:02 AM

Sorry it took me so long to get back to this. A very busy schedule in the past week prevented me from giving a thorough reading to the cases you listed.

First, pretext: "To tell if reason A is pretextual when the decider advances alternate reason B, you have to determine if reason B alone was sufficient."

I should note that once the employer gives a legitimate (non-discriminatory) rationale for the firing, the burden shifts to the employee to demonstrate pretext. Thus, if the standard law of preventing the court from resolving questions of religious doctrine prevents them from considering any proffered evidence of pretext, the standard discrimination law would resolve it in favor of the employer without the overkill that is the ministerial exception. (Note also that my position does not rely on a claim that every religious employment case is justicable, while yours does rely on a claim that every such case is non-justicable.)

The factors that can be argued to establish pretext are: "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" 2 Americans with Disab.: Pract. & Compliance Manual § 7:492, citing Americans with Disabilities Act of 1990, § 503(a), 42 U.S.C.A. § 12203(a). Carreras v. Sajo, Garcia & Partners, 596 F.3d 25, 22 A.D. Cas. (BNA) 1601 (1st Cir. 2010).

Some of those factors may well be non-justicable in a religious context (incoherencies, contradictions, and implausibilities jump out), but inconsistencies, at the very least, fall within the reach of a secular court. While they may not be able to require that a church follow certain rules, they can require that a church consistently apply the rules that they purport to apply. (Of course, a church could probably get around that by claiming very specific justifications for firing that only apply to one factual situation. As I've argued before, the ability of a dishonest church to circumvent the law through false factual claims does not justify a blanket exception that prevents them from even needing to make those claims.)

On to the cases.

For "Barnett v. US Air," just to be clear, I'm reading from U.S. Airways, Inc. v. Barnett, 535 U.S. 391. As always, specifics matter. The ruling in US Airways was not based on the effect that violating the seniority rules would have on the employer's business. In actuality, it was based on the general value of a system that provides stability and a quasi-due process. (See 535 U.S. at 404). The question was not whether seniority was important to the accomplishment of the company's mission, such that your analogy would work, but rather whether the seniority system was so widespread and uniform that exceptions would not be reasonable.

I'll hopefully be able to read and respond to the other cases tomorrow.

Posted by: Andrew MacKie-Mason | Apr 24, 2011 12:18:38 AM

For Borkowski v. Valley Center, I'm looking at the Second Circuit opinion, 63 F.3d 131.

On the issue of "essential functions," the court laid out the following factors: "To avoid unfounded reliance on uninformed assumptions, the identification of the essential functions of a job requires a fact-specific inquiry into both the employer's description of a job and how the job is actually performed in practice." 63 F.3d at 140. So long as proper deference is given to the "employer's description of a job" in the religious context, I fail to see how application of that test poses any religious freedom problems. Indeed, the focus of the court's analysis is on the standard practices of the organization (see 63 F.3d at 141), and as such would seem to give significant deference to the religious practices of an institution. I'll point out again, though, that even if the "essential functions" question lies outside a court's competence in a certain case, that still doesn't justify the ministerial exemption.

On the issue of costs and benefits, though the Borkowski court is nonspecific on what "benefits" may be considered, it seems clear that the benefits refer to the public policy and private benefits gained from the employment of people with disabilities, not any question that relates to the function of the organization.

Posted by: Andrew MacKie-Mason | Apr 24, 2011 2:31:10 PM

What about Carter v. Bennett (840 F2D 63)? Here the issue was whether job performance was "satisfactory". What is a "satisfactory" performance for a Rabbi? For a Lutheran minister?

That's not an accurate statement of the issue in Carter. In fact, the court there was resolving three questions: (1) was Carter transferred to a position where he could be reasonably accommodated? (2) was Carter reasonably accommodated in that position? (3) was his firing retaliation for filing a discrimination complaint? I can't find anything in the opinion that suggests the Court had to did more than accept the employer's description of satisfactory job performance. If you see it, please give me a page number.

For Barth v. Gelb, I'm looking at 2 F.3d 1180 (D.C. Cir. 1983).

"This required evaluating the importance of keeping the same person in a position, the value of know how gained by employees"

On the contrary, the Court of Appeals merely said that the existence of those factors was enough to justify disparate treatment of current employees and applicants. In fact, the court had already determined that the proposed accommodation would be unreasonable before it looked into those factors.

"the burden of employee turnover."

The Court didn't consider issues analogous to the ones you're raising (harm to the congregation) so this case isn't a proper vehicle to consider those. Rather, it was limited to a consideration of the difficulty of finding competent individuals and the expense of training, both of which can be legitimately considered by a court in the religious context.

Posted by: Andrew MacKie-Mason | Apr 24, 2011 10:30:47 PM