Amicus Brief in Ministerial-Exception Case: Institutional Church-State Separation and the History of Disputes over Clergy Selection

Rick Garnett, Carl Esbeck (Missouri Law), Kim Colby (Christian Legal Society), and I filed this amicus brief last week in Hosanna-Tabor Lutheran School, the pending Supreme Court case about the "ministerial exception" from antidiscrimination laws.  Two of the brief's important points are:  (1) There is a core meaning of "separation of church and state" that ensures separation and distinction between the institutions of church and state and autonomy for the church (and for the state, actually) in its core functions.  (2) This arrangement of freedom/autonomy/separation for religious institutions is inseparable from the long history of disputes over government efforts to take a role in the selection of clergy -- from the investiture controversy to today's ministerial-exception issue.  (We also have something to say about why teachers at religious schools should, in a great many cases, be treated as "ministers.")

We think that the separation-of-institutions argument may appeal to justices, and others, across the spectrum of views on the contested issues of church and state.  We're encouraged in that by the fact that our brief has as signatories the National Association of Evangelicals, the strict-separationist Baptist Joint Committee on Religious Liberty, and Professor Eugene Volokh, who is no automatic vote for the religious institutions' side in Religion Clause cases.  (Ours and other briefs in the case so far are posted here.)

Here's an excerpt from the summary of argument:

The ministerial exception, at issue in this case, is a clear and crucial implication of religious liberty, church autonomy, and the separation of church and state. Reasonably constructed and applied, the ministerial exception not only helps civil decision-makers to avoid becoming entangled in essentially religious questions; it also, and even more importantly, protects the fundamental freedom of religious communities to educate and form their members. Although this may prevent individuals in some cases from suing for discrimination, it rests on the overriding principle that there are some questions the civil courts do not have the power to answer, some wrongs that a constitutional commitment to church-state separation puts beyond the law‘s corrective reach. The civil authority lacks competence to intervene in such matters, not so much because they lie beyond its technical or intellectual capacity, but because they lie beyond its jurisdictional power.

Tom